Feb 17, 2015

Instant Analysis: Injunction in Texas v. United States

At 10:22 p.m., Judge Hanen issued his long-awaited decision in Texas v. United States, temporarily enjoining DHS from implementing DAPA. (Disclosure: I filed a brief in support of Texas.) The injunction is here. The opinion is here. The 123-page decision is extremely thorough. It spends over 60 pages on standing, and the remainder on the procedural APA claim. It doesn’t even address the Take Care clause.

The opinion has tw0 main parts. First, it finds that the states have standing. Second, it concludes that DHS lacks the discretion to institute DAPA.

The standing analysis tracks closely the arguments advanced by Texas, which I addressed here. In short, DAPA provides legal presence to aliens, who can then obtain drivers licenses in the states. This court concluded (correctly in my mind) that these licenses impose a cost on the states. The DOJ previously argued in the 9th Circuit that it was unconstitutional for Arizona to exclude DACA beneficiaries from receiving drivers licenses. The court found a similar analysis estops the government from claiming Texas can change its laws to deny DAPA beneficiaries licenses. The court (correctly in my mind) rejects the argument that DAPA will cause an influx of illegal immigration. This argument was too speculative. The standing analysis is really thorough. Contrary to what you may think, I am fairly confident this will stand up on appeal. The merits, is another story.

The merits analysis begins on p. 68. On p. 92, the court explains that Congress knows how to “delegate discretionary authority,” and has not done so here.


On p. 98, the court finds a “complete abdication” under Heckler v. Cheney.


98 99

The court also makes a point I address in Part II of my series of DAPA–the Secretary, and not individual officers set the the policies. There is no individual discretion (p. 108).


In an extended footnote, the court explains that DHS could not identify a single applicant denied for DACA due to discretionary factors.

109a 110

Although the court doe snot reach the constitutional issue, the “abdication” analysis under the APA claim mirrors what a constitutional “Take Care” analysis would look like. So the court tipped his hand how the constitutional analysis would come out.

The final portion of Judge Hanen’s opinion stresses over, and over again, that a preliminary injunction is warranted to maintain the status quo. This is an important point that has been stressed with the same-sex marriage litigation. Allowing 4 million people to sign up for DAPA cannot be undone. The President has said so himself. From p. 121:


I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power. The 123 page decision is extremely thoughtful and comprehensive. Unlike the drivel from the District Court in Pennsylvania that reached out to decide an issue that was not before him, Judge Hanen has authored an authoritative and measured analysis of a really difficult legal issue.

What next? As I noted in this post in December, once the preliminary injunction issues, this case will rocket up to the 5th Circuit, and to SCOTUS by the end of this term. The Court will have to resolve this issue, and cannot let it linger on the certiorari docket till next term. As if this term couldn’t get any more intense!

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Mar 20, 2013

Instant Analysis: Decker v. Northwest Environmental Defense Center – Auer Is In Trouble.

Back in December, I attended oral argument in Decker v. Northwest Environmental Defense Center, a Clean Water Act case that I did not know much about. At the time, I noted that the Chief Justice smacked down the government lawyer for the EPA’s decision to change their policy mere days before the argument. Also, the attorneys for the logging interest begged the Court not to send the case back to the 9th Circuit (I sat next to the attorney’s sister), while the environmentalists begged the Court to DIG the case.

Today we have an opinion in this case. Justice Kenendy writing for the Court found that the recent amendments do not make the case moot. Applying Auer deference, the Court finds that the EPA’s interpretation is reasonable.

The EPA interprets its regulation to exclude the type of stormwater discharges from logging roads at issue here. See Brief for United States as Amicus Curiae 24–27. For reasons now to be explained, the Court concludes the EPA’s determination is a reasonable interpretation of its own regulation; and, in consequence, deference is accorded to the interpretation under Auer v. Robbins, 519 U. S. 452, 461 (1997).

Justice Scalia had an important concurrence on Auer deference.

I do not join Part III. The Court there gives effect to a reading of EPA’s regulations that is not the most natural one, simply because EPA says that it believes the unnatural reading is right. It does this, more- over, even though the agency has vividly illustrated that it can write a rule saying precisely what it means—by doing just that while these cases were being briefed. Enough is enough.

To Scalia, Auer is nothing more than Chevron deference for regulations:

The canonical formulation of Auer deference is that we will enforce an agency’s interpretation of its own rules unless that interpretation is “plainly erroneous or inconsistent with the regulation.” Seminole Rock, supra, at 414. But of course whenever the agency’s interpretation of the regulation is different from the fairest reading, it is in that sense “inconsistent” with the regulation. Obviously, that is not enough, or there would be nothing for Auer to do. In practice, Auer deference is Chevron deference applied to regulations rather than statutes. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The agency’s interpretation will be accepted if, though not the fairest reading of the regulation, it is a plausible reading—within the scope of the ambiguity that the regulation contains

Wow, Nino is schmalzing it up with citations to Holmes & Marbury v. Madison & Montesquieu & Blackstone & Federalist 81!?

As Justice Holmes put it: “[w]e do not inquire what the legislature meant; we ask only what the statute means.” The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899). . . . But the purpose of interpretation is to determine the fair meaning of the rule—to “say what the law is,” Marbury v. Madison . . . “When the legislative and executive powers are united in the same person . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws . . . Blackstone condemned the practice of resolving doubts about “the construction of the Roman laws” by “stat[ing] the case to the emperor in writing, and tak[ing] his opinion upon it.” 1 W. Blackstone, Commentaries on the Laws of England 58 (1765). And our Constitution did not mirror the British practice of using the House of Lords as a court of last resort, due in part to the fear that he who has “agency in passing bad laws” might operate in the “same spirit” in their interpretation. The Federalist No. 81, pp. 543–544 (J. Cooke ed. 1961)

For all these reasons, Nino would not defer to an agencies interpretation of its own rules.

In any case, however great may be the efficiency gains derived from Auer deference, beneficial effect cannot jus- tify a rule that not only has no principled basis but contravenes one of the great rules of separation of powers: He who writes a law must not adjudge its violation.

Because the fairest reading of the agency’s rules proscribes the conduct at issue in these cases, I would affirm the judgment below. It is time for us to presume (to coin a phrase) that an agency says in a rule what it means, and means in a rule what it says there.

Au Revoir Auer.

Chief Justice Roberts, joined by Justice Alito, disagreed with Scalia’s opinion, and said this was not the right time to revisit Auer.

The opinion concurring in part and dissenting in part raises serious questions about the principle set forth in Bowles v. Seminole Rock & Sand Co., 325 U. S. 410 (1945), and Auer v. Robbins, 519 U. S. 452 (1997). It may be appropriate to reconsider that principle in an appropriate case. But this is not that case.

Not even the Professors want to revisit Auer!

Respondent suggested reconsidering Auer, in one sentence in a footnote, with no argument. See Brief for Respondent 42, n. 12. Petitioners said don’t do it, again in a footnote. See Reply Brief for Petitioners in No. 11–338, p. 4, n. 1; see also Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 223–224 (1997) (declining to decide question that received only “scant argumentation”). Out of 22 amicus briefs, only two—filed by dueling groups of law professors—addressed the issue on the merits.

And Roberts tells “the bar” that Auer and Seminale Rock is in doubt.

The issue is a basic one going to the heart of administrative law. Questions of Seminole Rock and Auer deference arise as a matter of course on a regular basis. The bar is now aware that there is some interest in reconsidering those cases, and has available to it a concise statement of the arguments on one side of the issue. I would await a case in which the issue is properly raised and argued. The present cases should be decided as they have been briefed and argued, under existing precedent

Scalia, Roberts, and Alito are not down for Auer.

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Mar 11, 2013

Instant Analysis: Bloomberg Soda Ban “Arbitrary and Capricious” & “Eviscerates” Separation of Powers

Here is an early report from CNBC. I will try to find the opinion. Michael Bloomberg can’t even satisfy the rational basis test!?

Update: From WSJ:

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” New York Supreme Court Judge Milton Tingling decided Monday.

The regulations are “fraught with arbitrary and capricious consequences,” the judge wrote. “The simple reading of the rule leads to the earlier acknowledged uneven enforcement even within a particular city block, much less the city as a whole….the loopholes in this rule effectively defeat the stated purpose of the rule.”

Update 2: Courtesy of WSJ, here is a link to the opinion.

It is a pretty dry opinion, but the crux of it seems to be that since the law was not created by the elected branches, but rather some sort of administrative agencies, the law is invalid.

And here is why the law violates the rational basis test:



And it gets better. The judge refers to Bloomberg’s plan as an “Administrative Leviathan” and “eviscerates” separation of powers.


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Feb 20, 2013

Instant Analysis: Gunn v. Minton

Federal question jurisdiction makes me bizarrely excited. Here is a quick run-down of Gunn v. Minton.

First, I should note that the Court highlighted the dissenting positions of Justices Guzman and Medina, both graduates of the South Texas College of Law, and Justice Don Willettt, a friend of this blog.

Justice Guzman, joined by Justices Medina and Willett, dissented. The dissenting justices would have held that the federal issue was neither substantial nor disputed, and that maintaining the proper balance of responsibility between state and federal courts precluded relegating state legal malpractice claims to federal court.

These judges got it right. Here is the issue as framed by the Chief:

As relevant here, Congress has authorized the federal district courts to exercise original jurisdiction in “all civil actions arising under the Constitution, laws, or treaties of the United States,” 28 U. S. C. §1331, and, more particularly, over “any civil action arising under any Act of Congress relating to patents,” §1338(a). Adhering to the demands of “[l]inguistic consistency,” we have interpreted the phrase “arising under” in both sections identically, applying our §1331 and §1338(a) precedents interchangeably. See Christianson v. Colt Industries Operating Corp., 486 U. S. 800, 808–809 (1988). For cases falling within the patent-specific arising under jurisdiction of §1338(a), however, Congress has not only provided for federal jurisdiction but also eliminated state jurisdiction, decreeing that “[n]o State court shall have jurisdiction over any claim for relief arising under any Act of Congress relating to patents.” §1338(a) (2006 ed., Supp. V).

I still wonder how depriving state courts of federal jurisdiction is constitutional (see lots of posts here).

To determine whether jurisdiction was proper in the Texas courts, therefore, we must determine whether it would have been proper in a federal district court—whether, that is, the case “aris[es] under any Act of Congress relating to patents.”

Roberts lays out the  two ways “a case can “aris[e] under” federal law.” First, American Well Works’ “Creates the cause of action” test. That was Holmes.

Minton’s original patent infringement suit against NASD and NASDAQ, for example, arose under federal law in this manner because it was authorized by 35 U. S. C. §§271, 281.

But the other avenue for arising under in claims that “Find its origin in state” law is quite murky.

But even where a claim finds its origins in state rather than federal law—as Minton’s legal malpractice claim indisputably does—we have identified a “special and small category” of cases in which arising under jurisdiction still lies. Empire HealthChoice Assurance, Inc. v. McVeigh, 547 U. S. 677, 699 (2006). In outlining the contours of this slim category, we do not paint on a blank canvas. Unfortunately, the canvas looks like one that Jackson Pollock got to first

Roberts turns to Grable, a case that was decided while I was taking CivPro.

In an effort to bring some order to this unruly doctrine several Terms ago, we condensed our prior cases into the following inquiry: Does the “state-law claim necessarily raise a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities”? Grable, 545 U. S., at 314. That is, federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress. Where all four of these requirements are met, we held, jurisdiction is proper because there is a “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” which can be vindicated without disrupting Congress’s intended division of labor between state and federal courts.

So here we get a clarification of Grable:

Applying Grable’s inquiry here, it is clear that Minton’s legal malpractice claim does not arise under federal patent law. Indeed, for the reasons we discuss, we are comfortable concluding that state legal malpractice claims based on underlying patent matters will rarely, if ever, arise under federal patent law for purposes of §1338(a). Although such cases may necessarily raise disputed questions of patent law, those cases are by their nature unlikely to have the sort of significance for the federal system necessary to establish jurisdiction.

Got that? The “unlikely to have the sort of significance for the federal system” is the newest addition to the “arising under” morass.

The Court also opens up the “significance” analysis to look at the federal system as a whole, rather than the particular issues before the Court.

As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim “necessarily raise[s]” a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.

Curiously, only one citation to Merrell Dow and Smith v. Kansas City Title & Trust (in which Holmes dissented). In contrast, Grable cited Merrell Dow 23 times. I reckon that Stevens opinion is on the wane.

A second illustration of the sort of substantiality we require comes from Smith v. Kansas City Title & Trust Co., 255 U. S. 180 (1921), which Grable described as “[t]he classic example” of a state claim arising under federal law. 545 U. S., at 312. In Smith, the plaintiff argued that the defendant bank could not purchase certain bonds issued by the Federal Government because the Government had acted unconstitutionally in issuing them. 255 U. S., at 198. We held that the case arose under federal law, because the “decision depends upon the determination” of “the constitutional validity of an act of Congress which is directly drawn in question.” Id., at 201. Again, the relevant point was not the importance of the question to the parties alone but rather the importance more generally of a determination that the Government “securities were issued under an unconstitutional law, and hence of no validity.” Ibid.; see also Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 814, n. 12 (1986).

Roberts also has an interesting discussion of how state courts should consider patent cases–hint, check with what federal courts have done/would do.

Nor will allowing state courts to resolve these cases undermine “the development of a uniform body of [patent] law.” Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 162 (1989). Congress ensured such uniformity by vesting exclusive jurisdiction over actual patent cases in the federal district courts and exclusive appellate jurisdiction in the Federal Circuit. See 28 U. S. C. §§1338(a), 1295(a)(1). In resolving the nonhypothetical patent questions those cases present, the federal courts are of course not bound by state court case-within-a-case patent rulings. See Tafflin v. Levitt, 493 U. S. 455, 465 (1990). In any event, the state court case-within-a-case inquiry asks what would have happened in the prior federal proceeding if a particular argument had been made. In answering that question, state courts can be expected to hew closely to the pertinent federal precedents. It is those precedents, after all, that would have applied had the argument been made. Cf. ibid. (“State courts adjudicating civil RICO claims will . . . be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law”). As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit. If the question arises frequently, it will soon be resolved within the federal system, laying to rest any contrary state court precedent; if it does not arise frequently, it is unlikely to implicate substantial federal interests. The present case is “poles apart from Grable,” in which a state court’s resolution of the federal question “would be controlling in numerous other cases.”

Roberts concludes by saying that the state court’s resolution of the patents will not be binding precedent–they are only used for that one case.

As we recognized a century ago, “[t]he Federal courts have exclusive jurisdiction of all cases arising under the patent laws, but not of all questions in which a patent may be the subject-matter of the controversy.” New Marshall Engine Co. v. Marshall Engine Co., 223 U. S. 473, 478 (1912). In this case, although the state courts must answer a question of patent law to resolve Minton’s legal malpractice claim, their answer will have no broader effects. It will not stand as binding precedent for any future patent claim; it will not even affect the validity of Minton’s patent. Accordingly, there is no “serious federal interest in claiming the advantages thought to be inherent in a federal forum,” Grable, supra, at 313. Section 1338(a) does not deprive the state courts of subject matter jurisdiction.

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Dec 4, 2012

Instant Analysis: Arkansas Game & Fish Commission v. United States

The Court 8-0, per Justice Ginsburg, held that “Government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection.”

One threshold question Steve raised is why the 5th Amendment applies to “private property” owned by the state, as the Takings Clause states “[N]or shall private property be taken for public use, without just compensation.” I think there is an easy answer, and an answer deeper in the thickets. The easy answer is that property owned by the state is private, in the sense that it is not abandoned land left in the commons. States own lots of land, which they can use for parks or other purposes, but it is still private, at least with respect to several sticks in the bundle. To some extent, they can exclude people (for example, by charging a fee to enter a park). They can alienate it (sell it to a private developer). Etc.

But, I think the deeper, more interesting issue is when you are talking about dual sovereigns–when the federal government is trying to take property of the state. In some respects, the state is acting like a private party would, at the mercy of the superior sovereign. Are there any cases about whether state governments could take federal property?

Anyway, back to the case. I shall read on.

This case considers when a temporary taking, such as temporary flooding, becomes “permanently continued.” Of course, temporary takings are looked at under Penn Central.

Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking . . .  the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a per- manent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F. 3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.

The Court continued its pattern of noting the nebulousness of regulatory takings (a topic that I found quite difficult to teach for that reason, thank you very much Justices). This is a pretty good summary, that I would share with my Property II students, but their exam was last night. Oh well. Good timing RBG.

We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area. True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim.

After streaming through the Court’s precedents on flooding, RBG fluidly summarized:

Ever since, we have rejected the argument that govern-ment action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the period during which the taking was effective.” . . . Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case.

RBG narrowly construed a precedent, from the dawn of the regulatory takings era (not too long after Penn Coal), to counter the government’s position.

We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti. That case, we note, was decided in 1924, well before the World War II-era cases and First English, in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence.

Just for good measure, she cites John Marshall’s line in Cohens v. Virginia about dicta.

We resist reading a single sentence unnecessary to the decision as having done so much work. In this regard, we recall Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia, 6 Wheat. 264, 399 (1821).

Also, RBG adds her own canon of statutory interpretation: Read On. (not sure if Garner and Scalia got this in their tome):

The Government also asserts that the Court in Loretto interpreted Sanguinetti the same way the Federal Circuit did in this case. That assertion bears careful inspection. A section of the Court’s opinion in Loretto discussing permanent physical occupations parenthetically quotes Sanguinetti’s statement that flooding is a taking if it constitutes an “actual, permanent invasion of the land.” 458 U. S., at 428. But the first rule of case law as well as statutory interpretation is: Read on. Later in the Loretto opinion, the Court clarified that it scarcely intended to adopt a “flooding-is-different” rule by the obscure means of quoting parenthetically a fragment from a 1924 opinion. The Court distinguished permanent physical occupations from temporary invasions of property, expressly including flooding cases, and said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.”

But then, RBG throws some cold water on the flooding argument.

To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course in- cumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions

RBG also douses some of the “prophetic” fears of expanding what constitutes a regulatory taking.

The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby, 328 U. S., at 275 (Black, J., dissenting); Loretto, 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby, and today’s modest decision augurs no deluge [JB: Awesome pun!] of takings liability.

RBG notes that the government raised an argument, essentially, for the first time at oral arguments. The Court would not consider it.

At oral argument, the Government tendered a different justification for the Federal Circuit’s judgment, one not aired in the courts below, and barely hinted at in the brief the Government filed in this Court: Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United States 26–27. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), we express no opinion on the proposed upstream/downstream distinction and confine our opinion to the issue explored and decided by the Federal Circuit.

Chief Justice Roberts could not be reached for comments.

Also, the Court does not address the implications of Arkansas riparian law:

1 Arkansas water law is barely discussed in the parties’ briefs, see Brief for United States 43, but has been urged at length in a brief amicus curiae filed by Professors of Law Teaching in the Property Law and Water Rights Fields.

A scholars brief that was cited when the merit briefs ignored an issue!

So here’s the holding:

We rule today, simply and only, that governmentinduced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking.

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Nov 27, 2012

Instant Analysis: 2nd Circuit’s 2nd Amendment Concealed Cary Case

The Second Circuit in Kachalsky v. Cacace upheld New York’s gun licensing law, including the discretionary policy for granting concealed-carry permits.

In doing so, the Court parted with Judge Kavanaugh’s dissenting view in Heller IIJudge Elrod, and “academics,” held that the traditional tiers of scrutiny to apply to the Second Amendment.

 A number of courts and academics, take the view that Heller’s reluctance to announce a standard of review is a signal that courts must look solely to the text, history, and tradition of the Second Amendment to determine whether a state can limit the right without applying any sort of means-end scrutiny. See Heller v. District of Columbia, 670 F.3d 1244, 1271-74 (D.C. Cir. 2011) (Kavanaugh, J., dissenting); see also Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self–Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1463 (2009); Joseph Blocher, Categoricalism and Balancing in First and Second Amendment Analysis, 84 N.Y.U. L. Rev. 375, 405 (2009). We disagree. Heller stands for the rather unremarkable proposition that where a state regulation is entirely inconsistent with the protections afforded by an enumerated right—as understood through that right’s text, history, and tradition—it is an exercise in futility to apply means-end scrutiny. Moreover, the conclusion that the law would be unconstitutional “[u]nder any of the standards of scrutiny” applicable to other rights implies, if anything, that one of the conventional levels of scrutiny would be applicable to regulations alleged to infringe Second Amendment rights.

Good thing the Second Amendment doesn’t have an Anti-Injunction Act!

Anyway, the 2nd Circuit’s analysis concedes that the 2nd Amendment has “some application” outside the home.

What we know from these decisions is that Second 15 Amendment guarantees are at their zenith within the home. 16 Heller, 554 U.S. at 628-29. What we do not know is the 17 scope of that right beyond the home and the standards for 18 determining when and how the right can be regulated by a 19 government. This vast “terra incognita” has troubled courts 20 since Heller was decided. United States v. Masciandaro, 638 21 F.3d 458, 475 (4th Cir. 2011) (Wilkinson, J., for the 22 Court). Although the Supreme Court’s cases applying the 1 Second Amendment have arisen only in connection with 2 prohibitions on the possession of firearms in the home, the 3 Court’s analysis suggests, as Justice Stevens’s dissent in 4 Heller and Defendants in this case before us acknowledge, 5 that the Amendment must have some application in the very different context of the public possession of firearms. 10 6 7 Our analysis proceeds on this assumption.

The Court has an interesting, and frank discussion about the role that history plays in this analysis.

It seems apparent to us that unlike the situation in 2 Heller where “[f]ew laws in the history of our Nation have 3 come close” to D.C.’s total ban on usable handguns in the 4 home, New York’s restriction on firearm possession in public has a number of close and longstanding cousins. 15 5 Heller, 6 554 U.S. at 629. History and tradition do not speak with 7 one voice here. What history demonstrates is that states 8 often disagreed as to the scope of the right to bear arms, 9 whether the right was embodied in a state constitution or 10 the Second Amendment. . . .

Even if we believed that we should look solely to this 17 highly ambiguous history and tradition to determine the 18 meaning of the Amendment, we would find that the cited 19 sources do not directly address the specific question before 20 us: Can New York limit handgun licenses to those 21 demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper 2 cause requirement does not operate as a complete ban on the 3 possession of handguns in public. Analogizing New York’s 4 licensing scheme (or any other gun regulation for that 5 matter) to the array of statutes enacted or construed over 6 one hundred years ago has its limits.

In other words, the court acknowledge that the history is “highly ambiguous,” and does not speak directly to the question before the court.

The court also has an interesting discussion of what I’ve called equality of rights–treating the amendments in a similar fashion.

Plaintiffs raise a second argument with regard to how 8 we should measure the constitutional legitimacy of the New 9 York statute that takes a decidedly different tack. They 10 suggest that we apply First Amendment prior-restraint 11 analysis in lieu of means-end scrutiny to assess the proper cause requirement. 16 12 They see the nature of the rights 13 guaranteed by each amendment as identical in kind. One has 14 a right to speak and a right to bear arms. Thus, just as 15 the First Amendment permits everyone to speak without 16 obtaining a license, New York cannot limit the right to bear 17 arms to only some law-abiding citizens. We are hesitant to 18 import substantive First Amendment principles wholesale into 19 Second Amendment jurisprudence. Indeed, no court has done so.

The court decides not to import these terms. Why? It would “Result in the erosion of hard-won First Amendment rights.” In other words, the Second Amendment is different from all other rights (see The Constitutionality of Social Cost that poses just that question):

But it 16 would be as imprudent to assume that the principles and 17 doctrines developed in connection with the First Amendment 18 apply equally to the Second, as to assume that rules 19 developed in the Second Amendment context could be 20 transferred without modification to the First. Endorsing 21 that approach would be an incautious equation of the two 22 amendments and could well result in the erosion of hard-won 23 First Amendment rights. As discussed throughout, there are 1 salient differences between the state’s ability to regulate 2 each of these rights.

The court goes on to talk about the fact that this is a bad vehicle, but let’s pause to address this. This is the clearest statement I’ve seen by a court saying that  applying First Amendment doctrine to Second Amendment would dilute the First Amendment’s power. This argument must be premised on the fact that the Second Amendment is a second-class right.

The court finds that “heightened scrutiny” is not automatically triggered here  because the law in question is not a complete ban.

Here, some form of heightened 2 scrutiny would be appropriate. New York’s proper cause 3 requirement places substantial limits on the ability of law- 4 abiding citizens to possess firearms for self-defense in 5 public. And unlike Decastro, there are no alternative 6 options for obtaining a license to carry a handgun. 7

We do not believe, however, that heightened scrutiny 8 must always be akin to strict scrutiny when a law burdens 9 the Second Amendment. Heller explains that the “core” 10 protection of the Second Amendment is the “right of law- 11 abiding, responsible citizens to use arms in defense of 12 hearth and home.” Heller, 554 U.S. at 634-35. Although we 13 have no occasion to decide what level of scrutiny should 14 apply to laws that burden the “core” Second Amendment 15 protection identified in Heller, we believe that applying 16 less than strict scrutiny when the regulation does not 17 burden the “core” protection of self-defense in the home 18 makes eminent sense in this context and is in line with the approach taken by our sister circuits.

Perhaps the coolest part of this opinion, is that in the discussion of the importance of the home, it cites the Third Amendment. Kudos CA2:

That the home deserves special protection from government intrusion is also reflected in the Third Amendment, which provides: “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” U.S. Const. amend. III.

Because the 2nd Amendment permits “latitude,” it passes “intermediate scrutiny.”

We believe state regulation of the use of firearms in 8 public was “enshrined with[in] the scope” of the Second 9 Amendment when it was adopted. Heller, 554. U.S. at 634. 10 As Plaintiffs admitted at oral argument, “the state enjoys a 11 fair degree of latitude” to regulate the use and possession 12 of firearms in public. The Second Amendment does not 13 foreclose regulatory measures to a degree that would result 14 in “handcuffing lawmakers’ ability to prevent armed mayhem 15 in public places.” Masciandaro, 638 F.3d at 471 (internal 16 quotation marks omitted). 17

Because our tradition so clearly indicates a 18 substantial role for state regulation of the carrying of 19 firearms in public, we conclude that intermediate scrutiny 20 is appropriate in this case. The proper cause requirement 21 passes constitutional muster if it is substantially related 22 to the achievement of an important governmental interest.

Restricting handgun possession in public to those who 16 have a reason to possess the weapon for a lawful purpose is 17 substantially related to New York’s interests in public 18 safety and crime prevention. It is not, as Plaintiffs 19 contend, an arbitrary licensing regime no different from 20 limiting handgun possession to every tenth citizen. This 21 argument asks us to conduct a review bordering on strict 22 scrutiny to ensure that New York’s regulatory choice will protect public safety more than the least restrictive 2 alternative. But, as explained above, New York’s law need 3 only be substantially related to the state’s important 4 public safety interest. A perfect fit between the means and 5 the governmental objective is not required. Here, instead 6 of forbidding anyone from carrying a handgun in public, New 7 York took a more moderate approach to fulfilling its 8 important objective and reasonably concluded that only 9 individuals having a bona fide reason to possess handguns 10 should be allowed to introduce them into the public sphere. 11 That New York has attempted to accommodate certain 12 particularized interests in self defense does not somehow 13 render its concealed carry restrictions unrelated to the 14 furtherance of public safety.

The court also addressed the link between guns and danger.

To be sure, we recognize the existence of studies and 16 data challenging the relationship between handgun ownership 17 by lawful citizens and violent crime. Plaintiffs’ Reply Br. 18 at 37-38. We also recognize that many violent crimes occur 19 without any warning to the victims. But New York also 20 submitted studies and data demonstrating that widespread 21 access to handguns in public increases the likelihood that 22 felonies will result in death and fundamentally alters the safety and character of public spaces. J.A. 453, 486-90. 2 It is the legislature’s job, not ours, to weigh conflicting 3 evidence and make policy judgments. Indeed, assessing the 4 risks and benefits of handgun possession and shaping a 5 licensing scheme to maximize the competing public-policy 6 objectives, as New York did, is precisely the type of 7 discretionary judgment that officials in the legislative and 8 executive branches of state government regularly make.

And, in an epic citation contrast, the majority counters Heller with NIFB!

To be sure, “the enshrinement of constitutional rights 10 necessarily takes certain policy choices off the table.” 11 Heller, 554 U.S. at 636. But there is also a “general 12 reticence to invalidate the acts of [our] elected leaders.” 13 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 14 2579 (2012). “‘Proper respect for a coordinate branch of 15 government’ requires that we strike down [legislation] only 16 if ‘the lack of constitutional authority to pass [the] act 17 in question is clearly demonstrated.’” Id. (quoting United 18 States v. Harris, 106 U.S. 629, 635 (1883)). Our review of 19 the history and tradition of firearm regulation does not 20 “clearly demonstrate[]” that limiting handgun possession in 21 public to those who show a special need for self-protection 22 is inconsistent with the Second Amendment. I

This is a really well-reasoned opinion. Let’s see what SCOTUS does with it.

P.S. The Second Circuit should stop putting line numbers in slip opinions. It is absolutely worthless in the digital age, and it makes copying from opinions very difficult.

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Nov 17, 2012

Instant Analysis: Closing Address by Justice Scalia at #FedSoc2012

I am over my tweet limit?! My running comments of Justice Scala’s address, will begin at 4:15 till 5:00 here.

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Oct 14, 2012

Instant Analysis: Atlas Shrugged II

I thought Part II was much better than Part I (my reviews were here and here), but still left a lot to be desired.

The plot was quite slow at times, and I found myself somewhat bored (and I really like the plot!).  The special effects looked better than the last movie, but still felt cheap. The musical score was ineffective. The “love scenes” between Rearden and Dagny were way too PG-13.

A number of key roles were recast. The actors playing Dagny  and Rearden were worse, but the actor playing Francisco were much better. I thought the Lillian Rearden character was quite effective. James Taggart’s portrayal was not quite slimy enough. Wesley Mouch (rhymes with ouch, I always pronounced it as mooch) was not nearly nefarious enough. Teller (from Penn & Teller) had a random cameo. Oh, and random, but Cherryl Brooks was played by Alex Mack (Larisa Oleynick).

My theater in Houston was maybe 40% full.

Spoilers below the jump.

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Oct 10, 2012

Instant Analysis: Fisher v. University of Texas, Austin

The transcript is here. I have class at 2 CDT, so my analysis will be brief here, but I’ll finish it later.

Petitioner (Abigail Fisher)

Bert Rein, a bit eager to get started, opened with the Mr. Chief Justice line before the Chief announced the case. Simon didn’t say so!

MR. REIN: Mr. Chief Justice, and may it please the Court -­ CHIEF JUSTICE ROBERTS: Well, I get to say that this is Case Number 11-345, Fisher against the University of Texas at Austin. And you get to say -­ ORAL ARGUMENT OF BERT W. REIN ON BEHALF OF THE PETITIONER MR. REIN: Mr. Chief Justice, General Suter trained me too well. Mr. Chief Justice, and members of the Court, and may it please the Court:

Justices Ginsburg and Sotomayor opened up by asking about standing, and whether the fact that Fisher would not have been admitted regardless of her race, and because Fisher has since graduated from LSU, and has no intent of enrolling at UT.

MR. REIN: — the denial of her right to equal treatment is a constitutional injury in and of itself, and we had claimed certain damages on that. We — we started the case before it was clear whether she would or wouldn’t be admitted.

Rein and Sotomayor talked over each other for a bit. Sotomayor kept asking about damages, Rein repeating that it didn’t matter whether she would have been ultimately admitted. Scalia jumps in and notes that there have been discrimination cases involving “state contracting, and we haven’t required the person who was discriminated against because of race to prove that he would have gotten the contract otherwise.”

JUSTICE SCALIA: Her claim is not necessarily that she would have been — would have been admitted, but that she was denied a fair chance in the admission lottery. Just as when a person is denied participation in the contracting lottery, he has suffered an injury.

Then Breyer drops the bomb–he asked if the petitioners aimed to overturn Grutter. He alludes to the Grutter 25-year clock (see my countdownhere) and says only 9 years have elapsed.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

Fisher is not seeking to overturn Grutter.

 MR. REIN: Justice Breyer, we have said very carefully we were not trying to change the Court’s disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving — in using race to establish a diverse class. What — the problem that we’ve encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass -­

And poor Justice Breyer is worried about not having enough time to talk at oral arguments (lol)

JUSTICE BREYER: Well, how do you want to argue it right now in the next ten minutes? I’m interested because I have a very short time to get my question out, and I need to know how you are going to argue it. MR. REIN: Well, Justice Breyer, our argument is we can satisfy Grutter if it’s properly read.

And then SGB’s line of questioning is rudely interrupted-by RGB, who calls the plan at issue here “more modest” than the plan upheld in Michigan. Justice Scalia pokes fun at Justice O’Connor’s 25-year maxim, and notes that this is not the holding of the case.

JUSTICE SCALIA: And by the way, do you think that Grutter — this goes to Justice Breyer’s question — do you think that Grutter held that there is no more affirmative action in higher education after 2028? MR. REIN: No, I don’t. JUSTICE SCALIA: Was that the holding of Grutter?

The WSJ reported that Justice O’Connor was sitting in the front row, looking quite sad. Next Justice Sotomayor asked further about the critical mass, and how much it is.

JUSTICE SOTOMAYOR: So could you tell me what a critical mass was? I’m looking at the number of blacks in the University of Texas system. Pre-Grutter, when the State was indisputably still segregating, it was 4 percent. Today, under the post-Grutter system, it’s 6 percent. The 2 percent increase is enough for you, even though the State population is at 12 percent? Somehow, they’ve reached a critical mass with just the 2 percent increase?

And this colloquy is important–I think Justice Sotomayor may be speaking personally here.

JUSTICE SOTOMAYOR: No — putting aside — I don’t — I’m not going to quarrel with you that if demographics alone were being used, I would be somewhat concerned. But you can’t seriously suggest that demographics aren’t a factor to be looked at in combination with how isolated or not isolated your student body is actually reporting itself to feel? MR. REIN: Well, I think if you start to split out subgroups of minorities, you mistake I think what I think is the proper thrust of Grutter, or at least ought to be. JUSTICE SOTOMAYOR: It might be — it might be insulting to some to be thrown into a pot.

But isn’t that what asking a student to check a box about race does? Throw someone into a pot? After more arguments about the meaning of critical mass, and determining when it is reached, petitioner stated that it is not his burden.

JUSTICE SOTOMAYOR: So what are you telling us is the standard of critical mass? At what point does a district court or a university know that it doesn’t have to do any more to equalize the desegregation that has happened in that particular State over decades, that it’s now going to be stuck at a fixed number and it has to change its rules. What’s that fixed number? MR. REIN: We — it’s not our burden to establish the number. It was the burden of the University of Texas to determine whether -­

Defining a “critical mass” without reference to a quota (forbidden) proved difficult. Petitioner asserted that without defining a critical mass, it will be impossible to determine if it is ever reached, and thus impossible to determine if a program is narrowly tailored.

MR. REIN: Put — put aside whether this was necessary and whether it was an appropriate last resort in a quest for diversity and critical mass, because Grutter’s not without limits. But I’ll put that aside and let me come directly to your question. First of all, if you think about narrow tailoring, you can’t tailor to the unknown. If you have no range of evaluation, if you have no understanding of what critical mass means, you can’t tailor to it.

JUSTICE SOTOMAYOR: So you have to set a quota for critical mass?

MR. REIN: No. There’s a huge difference, and it’s an important one that is not well put out by the University of Texas. Having a range, a view as to what would be an appropriate level of comfort, critical mass, as defined in Grutter, allows you to evaluate where you are -­

JUSTICE SOTOMAYOR: So we won’t call it a quota; we’ll call it a goal, something Grutter said you shouldn’t have. MR. REIN: Well, Justice Sotomayor, I think it’s very important to distinguish between the operative use of that range, in other words, that’s where we are, and we’re going to use race until we get there every year in consideration of each application, which was a problem.

JUSTICE SOTOMAYOR: Boy, it sounds awfully like a quota to me that Grutter said you should not be doing, that you shouldn’t be setting goals, that you shouldn’t be setting quotas; you should be setting an individualized assessment of the applicants. Tell me how this system doesn’t do that.

MR. REIN: This system doesn’t — I mean, it’s not narrowly tailored because it doesn’t fit. There are certain forms of Grutter that it follows. It -­

Justice Kennedy inquired what problem the petitioner had with the affirmative action program, in light of the fact that it admits so few minorities (that is, those who are not already admitted under the top 10% plan):

JUSTICE KENNEDY: Could you comment on this, and then I hope we can get back to Justice Alito’s question. You argue that the University’s race-conscious admission plan is not necessary to achieve a diverse student body because it admits so few people, so few minorities. And I had trouble with that reading the brief. I said, well, if it’s so few, then what’s the problem.

MR. REIN: Well, it’s a question -­

JUSTICE KENNEDY: Then — let’s assume -­

MR. REIN: Excuse me, Justice Kennedy.

JUSTICE KENNEDY: — that it resulted in the admission of many minorities. Then you’d come back and say, oh, well, this is — this shows that we were probably wrongly excluded. I -­

MR. REIN: Well -­ JUSTICE KENNEDY: — I see an inconsistency here.

MR. REIN: Well -­

JUSTICE KENNEDY: Is it — are you saying that you shouldn’t impose this hurt or this injury, generally, for so little benefit; is that the point?

RBG makes a good point. Though the Top 10% is facially neutral, is was created for the purpose of increasing minority enrollment.

 JUSTICE GINSBURG: But you say, and that’s okay because it’s — it’s race-neutral, but is it really? I mean, the — the only reason that they instituted the 10 percent plan was to increase minority enrollment.

As Ilya Somin noted in this post, the top 10% plan was merely an end-run around transparent race-conscious measures.

 If the Court rules that explicit race-based affirmative action is unconstitutional where “diversity” can be achieved by facially neutral plans like the ten percent plan, the result is likely to be a raft of admissions policies that appear race-neutral, but actually are deliberate attempts to achieve a particular racial balance by relying on admissions criteria that correlate with race (which is the reason why the ten percent plan was enacted in the first place, after a federal court invalidated the University of Texas’ racially explicit affirmative action policy in 1996). In this way, racial preferences in admissions will not be eliminated, but will merely be driven underground and become less transparent.

Both Justices Breyer and Sotomayor asked whether federal judges should be dictating how schools should manage their admission policies:

JUSTICE BREYER: Okay. Now, is that a lot? Is that a little? There are several thousand admissions officers in the United States, several thousand universities, and what is it we’re going to say here that wasn’t already said in Grutter that isn’t going to take hundreds or thousands of these people and have Federal judges dictating the policy of admission of all these universities?

JUSTICE SOTOMAYOR: So now we’re going to tell the universities how to run and how to weigh qualifications, too?

Then AMK asks point blank how this law violates strict scrutiny:

JUSTICE KENNEDY: Well, perhaps you could summarize by saying — by telling us, from your point of view, this plan fails strict scrutiny on one or two or both levels, (a), because the objective is inappropriate or ill defined, and, (b), because of the implementation is defective. Which or both of those are you arguing?

MR. REIN: We have argued both, and we continue to argue both. It is not a necessary -­

JUSTICE KENNEDY: And in what respect does this plan fail strict scrutiny under either of those -­ under both of those categories?

MR. REIN: Okay. Under the category — the first category, was it a necessary means of pursuing a compelling interest, we don’t believe they’ve shown any necessity for doing what they were doing. And certainly, it — race should have been a last resort; it was a first resort. That’s, in a nutshell, that prong of it. And in order — and they failed in every respect. If you go to narrow tailoring, what we are saying is they didn’t consider alternatives, and their treatment of, as we have pointed out, Asian Americans and Hispanics makes a — an incomprehensible distinction. They say, we don’t worry about Asians, there are a lot of Asians, it’s a demographic measure, which is a forbidden measure. They are in excess of their share of the Texas population. But if you are trying to find individual comfort levels, if you are breaking it down between African Americans and — and Hispanics, the -­

Respondent (University of Texas, Austin)

The University of Texas, which was represented by the Texas Solicitor General at the District Court and Court of Appeals level decided to hire Greg Garre and Maureen Mahoney (who argued Grutter) at the Supreme Court. Garre argued today.

Right of the bat, the Chief leads Garre down a difficult trail of what it means to check the “Hispanic” box on a a college application.

CHIEF JUSTICE ROBERTS: Counsel, before — I need to figure out exactly what these numbers mean. Should someone who is one-quarter Hispanic check the Hispanic box or some different box?

MR. GARRE: Your Honor, there is a multiracial box. Students check boxes based on their own determination. This is true under the Common Application -­

CHIEF JUSTICE ROBERTS: Well, I suppose a person who is one-quarter percent Hispanic, his own determination, would be I’m one-quarter percent Hispanic.

MR. GARRE: Then they would check that box, Your Honor, as is true -­

CHIEF JUSTICE ROBERTS: They would check that box. What about one-eighth?

MR. GARRE: Your Honor, that was — they would make that self-determination, Your Honor. If anyone, in any part of the application, violated some honor code then that could come out -­

CHIEF JUSTICE ROBERTS: Would it violate the honor code for someone who is one-eighth Hispanic and says, I identify as Hispanic, to check the Hispanic box?

MR. GARRE: I don’t think — I don’t think it would, Your Honor. I don’t think that that issue would be any different than the plan upheld in Grutter or the Harvard plan or in Bakke.

CHIEF JUSTICE ROBERTS: You don’t check in any way the racial identification?

MR. GARRE: We do not, Your Honor, and no college in America, the Ivy Leagues, the Little Ivy Leagues, that I’m aware of.

CHIEF JUSTICE ROBERTS: So how do you know you have 15 percent African American — Hispanic or 15 percent minority?

Then things go from bad to worse for Garre. Scalia teases out the critical mass concept, and argues that diversity on campus is not enough–they need diversity in each class. How can that be assessed?

JUSTICE SCALIA: And how do they decide? You know, it’s — they want not just a critical mass in the school at large, but class by class? How do they figure out that particular classes don’t have enough? What, somebody walks in the room and looks them over to see who looks — who looks Asian, who looks black, who looks Hispanic? Is that how it’s done?

MR. GARRE: No, Your Honor, and let me try to be clear on this. The university has never asserted a compelling interest in any specific diversity in every single classroom. It has simply looked to classroom diversity as one dimension of student body diversity.

JUSTICE SCALIA: I don’t know what you are talking about. I mean it is either a factor that is validly in this case or it isn’t. Do they look to individual classroom diversity or not? And if so, how do they decide when classes are diverse?

Then the Chief gets ticked:

JUSTICE SCALIA: Yes, it doesn’t explain to me how they go about, classroom by classroom, deciding how many minorities there are.

MR. GARRE: Your Honor, there are student lists in each classroom. The student lists —

CHIEF JUSTICE ROBERTS: There are student lists in each classroom that have race identified with the students.

MR. GARRE: No, no, Your Honor. Of course, each classroom, the university knows which students are taking its classes and one can then, if you want to gauge diversity in the classrooms, go back -­

After some questioning from Justice Alito about how many minorities are admitted to UT as a result of the affirmative action program, independent of the top 10% question–to which Garre had no answer–the Chief asked him point blank about the “critical mass.”

CHIEF JUSTICE ROBERTS: What is that number? What is the critical mass of African Americans and Hispanics at the university that you are working toward?

MR. GARRE: Your Honor, we don’t have one. And this Court in Grutter –

CHIEF JUSTICE ROBERTS: So how are we supposed to tell whether this plan is narrowly tailored to that goal?

MR. GARRE: To look to the same criteria of this Court in Grutter. This Court in Grutter specifically rejected the notion that you could come up with a fixed percentage. Now

JUSTICE ALITO: Does critical mass vary from group to group? Does it vary from State to State?

MR. GARRE: It certainly is contextual. I think it could vary, Your Honor…

And that context is not based on the population of Texas.

Next, RBG asks if the Top 10% plan was so effective, why did Texas need further race-conscious measures?

Scalia hits Garre over what I think is one of the main failings of the diversity rationale–the notion that racial diversity is necessary in order to achieve intellectual diversity:

MR. GARRE: Because, Your Honor, as is true for any group, and the Harvard plan that this Court approved in Bakke specifically recognized this, you would want representatives and different viewpoints from individuals within the same — the same racial group, just as you would from individuals outside of that.

JUSTICE SCALIA: What kind of viewpoints? I mean, are they political viewpoints?

MR. GARRE: Anyone’s experiences, where they grew up, the situations that they — that they experience in their lives are going to affect their viewpoints.

JUSTICE SCALIA: But this has nothing to do with racial diversity. I mean, you’re talking about something else.

Of course race could be used as proxy to determine intellectual diversity, but it could hardly be said to be narrow tailoring. Asking questions about a student’s life experiences for example–though it would be much tougher for admission officers to consider–would lead to more accurate, and less race-conscious, measures of breadth of experiences.

Next Justice Alito asks the question that David Bernstein thinks loses the case for UT:

MR. GARRE: If you look at the admissions data that we cite on page 34 of our brief, it shows the breakdown of applicants under the holistic plan and the percentage plan. And I don’t think it’s been seriously disputed in this case to this point that, although the percentage plan certainly helps with minority admissions, by and large, the — the minorities who are admitted tend to come from segregated, racially-identifiable schools.
JUSTICE ALITO: Well, I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, but you make a very different argument that I don’t think I’ve ever seen before. The top 10 percent plan admits lots of African Americans — lots of Hispanics and a fair number of African Americans. But you say, well, it’s — it’s faulty, because it doesn’t admit enough African Americans and Hispanics who come from privileged backgrounds. And you specifically have the example of the child of successful professionals in Dallas.
Now, that’s your argument? If you have -you have an applicant whose parents are — let’s say they’re — one of them is a partner in your law firm in Texas, another one is a part — is another corporate lawyer. They have income that puts them in the top 1 percent of earners in the country, and they have -parents both have graduate degrees. They deserve a leg-up against, let’s say, an Asian or a white applicant whose parents are absolutely average in terms of education and income?
MR. GARRE: No, Your Honor. And let me -let me answer the question.First of all, the example comes almost word for word from the Harvard plan that this Court approved in Grutter and that Justice Powell held out in Bakke.
JUSTICE ALITO: Well, how can the answer to that question be no, because being an African American or being a Hispanic is a plus factor.
MR. GARRE: Because, Your Honor, our point is, is that we want minorities from different backgrounds. We go out of our way to recruit minorities from disadvantaged backgrounds.
JUSTICE KENNEDY: So what you’re saying is that what counts is race above all.
MR. GARRE: No, Your Honor, what counts is different experiences
JUSTICE KENNEDY: Well, that’s the necessary — that’s the necessary response to Justice Alito’s question.
MR. GARRE: Well, Your Honor, what we want is different experiences that are going to — that are going to come on campus –
JUSTICE KENNEDY: You want underprivileged of a certain race and privileged of a certain race. So that’s race.

Garre said what he didn’t want to say–and what we all know. UT is looking for certain races, namely Hispanics and African-Americans. But they can’t say that. So they use the diversity rationale. But at heart, when pressed, he must admit that they are looking for specific races–rather than general notions of diversity–and this is exactly the rationale that Grutter does not allow.

Chief Justice Roberts asks again, to no avail, what the critical mass is, and how should the Court determine if the policy is narrowly tailored without knowing what the mass is. Justice Sotomayor also chimes in.

CHIEF JUSTICE ROBERTS: Grutter said there has to be a logical end point to your use of race. What is the logical end point? When will I know that you’ve reached a critical mass?

JUSTICE SOTOMAYOR: Mr. Garre, I think that the issue that my colleagues are asking is, at what point and when do we stop deferring to the University’s judgment that race is still necessary? That’s the bottom line of this case. And you’re saying, and I think rightly because of our cases, that you can’t set a quota, because that’s what our cases say you can’t do. So if we’re not going to set a quota, what do you think is the standard we apply to make a judgment?

Will 25 years cover it?

JUSTICE SCALIA: But that holds for only -­ only another what, 16 years, right? Sixteen more years, and you’re going to call it all off.

MR. GARRE: Your Honor, we don’t read Grutter as establishing that kind of time clock. We are looking at this -­

JUSTICE SCALIA: But you’re appealing to Grutter, and that’s what it said.

I bet Justice O’Connor was wincing at this point. I can’t wait for Justice Stevens’s next speech where he criticizes this case, said no one, ever.

Alito asks point blank about a critical mass of Asian-Americans.

JUSTICE ALITO: Well, in terms of diversity, how do you justify lumping together all Asian Americans? Do you think — do you have a critical mass of Filipino Americans? Cambodian Americans -­

MR. GARRE: Your Honor -­

JUSTICE ALITO: — Cambodian Americans?

MR. GARRE: — the common form that’s used has Asian American, but also, next to that, has a form that says country of origin where that can be spelled out.

JUSTICE ALITO: But do you have a critical mass as to all the subgroups that fall within this enormous group of Asian Americans?

MR. GARRE: Your Honor, we’ve looked to whether or not we have a critical mass of underrepresented minorities, which is precisely what the Grutter decision asks us to do.

After some more questioning, Garre turns to the jurisdictional issue, and asserts that the declaratory and injunctive relief have dropped out because she graduated, and the only remaining issue is the request for monetary damages–namely her application fees.

Amicus (United States)

Alito opens up and asks Verrilli right off the bat if specific groups–disadvantaged Hispanics and African Americans–should receive a preference, and the SG tap-dances around the question.

JUSTICE ALITO: Does the United States agree with Mr. Garre that African American and Hispanic applicants from privileged backgrounds deserve a preference?

GENERAL VERRILLI: I understand that differently, Justice Alito. Here’s how we understand what is going on with respect to the admissions process in the University of Texas, and I am going to address it directly. I just think it needs a bit of context to do so.

Alito tries to pin the SG down about asking about equally qualified candidates–one white, one black–Verrilli continues to tap-dance.

JUSTICE ALITO: If you have two applicants who are absolutely the same in every respect: They both come from affluent backgrounds, well-educated parents. One falls within two of the groups that are given a preference, the other doesn’t. It’s a marginal case. It’s the last — the last position available in the class. Under the Texas plan, one gets in; one doesn’t get in. Now, do you agree with that or not?


JUSTICE ALITO: Do you agree with — do you agree that that is an incorrect statement of the facts, or do you agree that that’s an incorrect understanding of the Equal Protection Clause?

GENERAL VERRILLI: I think it’s both. I think the — there is no automatic preference in Texas. And I think this is right in the — it says at page 398a of the Joint Appendix — the — they describe the process as saying, “An applicant’s race is considered only to the extent that the applicant, viewed holistically, will contribute to the broader vision of diversity desired by the university.”

Scalia repeats the question, and asks about identical applicants, and the SG keeps turning to holistic considerations.

JUSTICE SCALIA: It’s not a matter of not everyone; it’s a matter of two who are identical in all other respects.


JUSTICE SCALIA: And what does the racial preference mean if it doesn’t mean that in that situation the minority applicant wins and the other one loses?

GENERAL VERRILLI: There may not be a racial preference in that situation. It’s going to depend on a holistic, individualized consideration of the applicant.

AMK asks point-blank whether race can be a tie-breaking factor:

JUSTICE KENNEDY: I don’t understand this argument. I thought that the whole point is that sometimes race has to be a tie-breaker and you are saying that it isn’t. Well, then, we should just go away. Then — then we should just say you can’t use race, don’t worry about it.

GENERAL VERRILLI: I don’t think it’s a tie-breaker. I think it functions more subtly than that, Justice Kennedy.

RBG swoops in to the rescue, and asserts that this holistic type of use of race was at issue in Bakke, Grutter, and military recruiting.

JUSTICE GINSBURG: But that’s the same -­ the same would be true in — of the Bakke plan, that in some cases it’s going to make a difference. The same would be true under Grutter. The same would be true under the policies now in existence at the military academies.

GENERAL VERRILLI: That — that is exactly right, Justice Ginsburg, but the point is that it’s not a mechanical factor.

Today’s oral arguments were brought to you by the letter H, for Holistic. That is, till Mitt Romney cuts funding for Sesame Street, in which case today’s arguments will be brought to you by the number 0, for that is how many dollars PBS will receive from the feds.

Sotomayor returns to Alito’s question, and makes what I think is a fair point–no two students are ever actually equal in all respects except race.

JUSTICE SOTOMAYOR: General, I think, as I take your answer, is that the supposition of Justice Alito’s question is truly impossible under this system. There are not two identical candidates because there are not identical mechanical factors that -­ except the 10 percent plan. Under the PIA, the factors are so varied, so contextually set, that no two applicants ever could be identical in the sense that they hypothesize.

GENERAL VERRILLI: That’s correct. They make specific individualized judgments about each applicant -­

JUSTICE SOTOMAYOR: Because no two people can be the same -­

Of course that is true, but to a busy admissions officer, students are invariably reduced to basic factors like SAT score, GPA, and other factors. Two students look a lot more alike through those narrow lenses.

And, a serious burn to Texas A&M and Texas Tech, Justice Alito asks about a ROTC candidate who is denied admission to UT:

JUSTICE ALITO: — because the time is about to expire, so you’ve got a marginal candidate who wants to go to the University of Texas at Austin and is also interested in ROTC. Maybe if race is taken into account, the candidate gets in. Maybe if it isn’t, he doesn’t get in. How does that impact the military? The candidate will then probably go to Texas A&M or Texas Tech? Is it your position that he will be an inferior military officer if he went to one of those schools?

Hook ’em Sam!

The SG poo poos the notion of critical mass.

GENERAL VERRILLI: I don’t think critical — I agree with my friend that critical mass is not a number. I think it would be very ill-advised to suggest that it is numerical . . . GENERAL VERRILLI: I agree that critical mass — the idea of critical mass has taken on a life of its own in a way that’s not helpful because it doesn’t focus the inquiry where it should be.

And in the SG’s closing statement, reminiscent of his closing argument in NFIB v. Sebelius, he appeals directly to AMK:

I think it is important, Your Honors, not just to the government, but to the country, that our universities have the flexibility to shape their environments and their educational experience to make a reality of the principle that Justice Kennedy identified in Parents Involved, that our strength comes from people of different races, different creeds, different cultures, uniting in a commitment to freedom, and to more a perfect union. That’s what the University of Texas is trying to do with its admissions policy, and it should be upheld.

Pretty patronizing if you ask me.

Petitioner Rebuttal.

The Chief, in giving Rein 10 minutes, makes a quip about keeping the playing field level–the very type of argument used to support affirmative action. Snap. JGR set up Rein perfectly.

CHIEF JUSTICE ROBERTS: Thank you, General. Mr. Rein, 10 minutes.


MR. REIN: Thank you, Mr. Chief Justice. That’s more than I expected.

CHIEF JUSTICE ROBERTS: Just keeping the playing field level.

MR. REIN: Well, that’s what we’re seeking in this case, Mr. Chief Justice, a level playing field for Abby Fisher. So it’s most apt at this point.

Justice Sotomayor asks further about whether the damages are limited to the $100 application fee.

Towards the end, Sotomayor got in the zinger of the day.

JUSTICE SOTOMAYOR: So you don’t want to overrule Grutter, you just want to gut it.

MR. REIN: Excuse me?

JUSTICE SOTOMAYOR: You just want to gut it. You don’t want to overrule it, but you just want to gut it.

You heard me!

And that’s a wrap!

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Jul 7, 2012

Instant Analysis: NFIB v. Sebelius

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

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Jul 2, 2012

Instant Analysis: NFIB v. Sebelius (all of Roberts, most of Ginsburg)

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

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Jul 1, 2012

Instant Analysis: NFIB v. Sebellius (this time with most of the Chief’s Opinion)

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I got through most of the Chief’s opinion. I’ll do more later.

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Jun 30, 2012

Instant Analysis: NFIB v. Sebelius

This may be the longest I have ever waited for a Supreme Court opinion. I mean that in two senses. One, the buildup since March 28 for this case has been quite unreal. Second, I waited 9 hours after the case was released to get it (I was flying to London and took off as the opinion was being announced, but before I could get the PDF). Still another night till I got to read the opinion, and even now I have just broken down the parts. Without further ado.

First, let me break down the portions of the opinion.

Only parts of Roberts’s opinion are for the entire Court (that is for Roberts, Ginsburg, Breyer, Sotomayor, and Kagan):

The introduction (the stuff that comes before Part I) was for Roberts alone.
Part I (pp. 1-11)was for Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan.
Part II (pp. 11-15) was joined by GInsburg, Breyer, Sotomayor, and Kagan, which rejected the AIA argument.
Part III-C (pp. 33-35) was joined by Ginsburg, Breyer, Sotomayor,and Kagan, and concluded that the mandate may be upheld as within Congress’s Taxing Clause power.

Part III-A (pp. 16-30) was written only for Roberts, concluding that the mandate was not a valid exercise of Congress’s power under the Commerce Clause (16-27) and N&P Clause (27-30). Roberts effectively agrees with pp.4-16 of the joint dissent.
Part III-B (pp. 31-32) was written only for Roberts concluding that the mandate must be construed as imposing a tax if it can be.
Part III-D (pp. 44-45) was written only for Roberts, in response to Ginsburg with respect to construing the mandate as a tax or an unconstitutional regulation of inactivity.

Part IV (pp. 45- 59) was written for Roberts, Breyer, and Kagan, holding that the Medicaid expansion violates the Constitution (pp. 45-58). Ginsburg, joined by Sotomayor, more-or-less agrees with Part IV-B (pp. 55- 58) of Roberts’s opinion, which concludes that Medicaid’s severability clause is the appropriate remedy.

Justice Ginsburg’s lengthy dissent was joined in its entirety by Justice Sotomayor. Breyer and Kagan only joined Parts I, II, III, and IV.

Part I (pp. 2- 12), joined by all four, talks about the importance of ACA, and the problems it was aimed at solving.
Part II (pp. 12-31) joined by all four, rejects the Chief’s Commerce Clause argument.
Part III (pp. 31-36), joined by all four, rejects the Chief’s Necessary & Proper Clause Argument
Part IV (pp. 37), joined by all four, harkens back to Lochner.
Part V (pp. 38-61), joined only by Ginsburg and Sotomayor, rejects the Chief’s Medicaid argument.

The dissent is jointly written by Scalia, Kennedy, Thomas, and Alito, though Kennedy read it from the bench (I checked, O’Connor, Kennedy, and Souter took turns reading from their joint opinion in Planned Parenthood v. Casey. Curious that Nino did not also chime in on the dissent).
Part I (pp. 4-16) focuses on the individual mandate and the commerce clause/N&P Clause.
Part II (pp. 17- 26) focuses on the taxing power.
Part III (pp. 26- 28) focuses on the AIA.
Part IV (pp. 28- 48) focuses on the Medicaid Expansion.
Part V (pp. 48- 64) focuses on severability.
The conclusion (pp.64-65) wraps it up.

Thomas dissented solo to write that he would grant exile to the Constitution in Exile (pp. 1-2).

I’ll fill in the rest later when I have time.

Chief Justice Owner, Err, John Roberts’s Controlling Opinion

Justice Ginsburg’s Concurring Opinion

Dissent of Justices Kennedy, Scalia, Thomas, and Alito

Dissent of Justice Thomas

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Jun 29, 2012

Instant Analysis: United States v. Alvarez

Instant Analysis: United States v. Alvarez

I write this analysis at 35,000 feet, somewhere over Pennsylvania, as I continue my flight towards Jolly ‘Ol England.

Today, the Supreme Court per Justice Kennedy found that an act of Congress was “unprecedented,” with “no clear limiting principle,” and violated the Constitution. No, it wasn’t the ACA. It was the Stolen Valor Act. Ripoff.

So there were three opinions. Justice Kennedy wrote the plurality for the Chief, Ginsburg, and Sotomayor. Breyer wrote separately, joined by Kagan. Alito dissented, joined by Scalia and Thomas.

Kennedy Plurality

What prose. This opening paragraph reads like something the Chief wrote. It is not very Kenendy-esque.

Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in announcing he held the Con-gressional Medal of Honor, respondent ventured onto new ground; for that lie violates a federal criminal statute, the Stolen Valor Act of 2005.

Remember when the 10th Circuit decided a case on this point while Alvarez was pending? Yeah. The Court did take note of that.

After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the Tenth Circuit, also in a decision by a divided panel, found the Act consti- tutional. United States v. Strandlof, 667 F.3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question of the Act’s validity.

The Court noted that this case, in many respects, is a follow-up to Snyder v. Phelps.

This is the second case in two Terms requiring the Court to consider speech that can disparage, or attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps, 562 U. S. ___ (2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement that the speaker held the Medal was an intended, undoubted lie.

The Court, interestingly tied the compelling interest of honoring the soldiers to the “precepts of the Constitution for which they fought.” This makes me think, a bit, of Stevens’s dissent in Texas v. Johnson (flag burning case) where he came out in the opposite direction with respect to free speech.

And it should be uncontested that this is a legitimate Government objective, indeed a most valued national aspiration and purpose. This does not end the inquiry, however. Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.

After reciting a long list of “content-based restrictions on speech have been permitted, as a general matter, only when confined to the few “‘historic and traditional categories [of expres- sion] long familiar to the bar,’”
the Court notes that “Absent from those few categories where the law allows content-based regulation of speech is any general excep- tion to the First Amendment for false statements.”

The Court also commented on the wide-ranging implications of this statute, which seem to apply anywhere, anytime. And this statute is *UNPRECEDENTED*. Not the ACA. The Stolen Valor Act Case. No doubt this was Kennedy gigging the Chief. Who knows.

Still, the sweeping, quite unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was made in a public meeting, but the statute would apply with equal force to personal, whispered con- versations within a home. The statute seeks to control and suppress all false statements on this one subject in almost limitless times and settings. And it does so en- tirely without regard to whether the lie was made for the purpose of material gain.

Not only is this law unprecedented, there is “no clear limiting principle.” I think the wrong case got the slippery slope argument.

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern- ment authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003). Were this law to be sus- tained, there could be an endless list of subjects the Na- tional Government or the States could single out. Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy, 425 U. S., at 771 (noting that fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen Valor Act is not so limited in its reach. Were the Court to hold that the in- terest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give govern- ment a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom.

And it is Alvarez, and not Jones (GPS case) that gets the citation to 1984!

So Kennedy lists a number of recipients who have received the Medal of Honor. Kinda reminds me of Justice Blackmun’s listing of great baseball players in Flood v. Kuhn.

The Court stressed that “counterspeech” suffices to achieve the government’s interest. Total paen (and citation) to Holmes’s marketplace of ideas theory. And now we know that the marketplace of ideas Includes trolling “online.”

The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The facts of this case indicate that the dynamics of free speech, of counterspeech, of refuta- tion, can overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him for his false statements “Alvarez was perceived as a phony,” 617 F. 3d, at 1211. Once the lie was made public, he was ridiculed online, see Brief for Respondent 3, his actions were reported in the press, see Ortega, Alvarez Again Denies Claim, Ontario, CA, Inland Valley Daily Bulletin (Sept. 27, 2007), and a fellow board member called for his resignation . . . The remedy for speech that is false is speech that is true. This is the ordinary course in a free society. The response to the unreasoned is the rational; to the unin- formed, the enlightened; to the straight-out lie, the simple truth. . . . See Whitney v. California, 274 U. S. 357, 377 (1927) (Brandeis, J., concurring) (“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be ap- plied is more speech, not enforced silence”). The theory of our Constitution is “that the best test of truth is the power of the thought to get itself accepted in the competition of the market,” Abrams v. United States, 250 U. S. 616, 630 (1919) (Holmes, J., dissenting). The First Amendment itself ensures the right to respond to speech we do not like, and for good reason. Freedom of speech and thought flows not from the beneficence of the state but from the inalien- able rights of the person. And suppression of speech by the government can make exposure of falsity more diffi- cult, not less so. Society has the right and civic duty to engage in open, dynamic, rational discourse. These ends are not well served when the government seeks to orches- trate public discussion through content-based mandates.

Mandates! Inalienable rights of the person! Civic Duty! Classic Tony. And he goes off on a stronger libertarian rant (I think here Justice Breyer must have parted company)

The American people do not need the assistance of a government prosecution to express their high regard for the special place that military heroes hold in our tradi- tion. Only a weak society needs government protection or intervention before it pursues its resolve to preserve the truth. Truth needs neither handcuffs nor a badge for its vindication.

And AMK tells Congress they can fix this problem by putting that stuff in the Cloud!

In addition, when the Government seeks to regulate protected speech, the restriction must be the “least restric- tive means among available, effective alternatives.” Ash- croft, 542 U. S., at 666. There is, however, at least one less speech-restrictive means by which the Government could likely protect the integrity of the military awards system. A Government-created database could list Con- gressional Medal of Honor winners. Were a database accessible through the Internet, it would be easy to verify and expose false claims. It appears some private individ- uals have already created databases similar to this, see Brief for Respondent 25, and at least one data- base of past winners is online and fully searchable, see Congressional Medal of Honor Society, Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that although Congress and the De- partment of Defense investigated the feasibility of estab- lishing a database in 2008, the Government “concluded that such a database would be impracticable and insuf- ficiently comprehensive.” Brief for United States 55. Without more explanation, it is difficult to assess the Gov- ernment’s claim, especially when at least one database of Congressional Medal of Honor winners already exists.

And social costs!

The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace. Though few might find re- spondent’s statements anything but contemptible, his right to make those statements is protected by the Consti- tution’s guarantee of freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First Amendment.

Breyer Concurring Opinion

Breyer, along with Kagan, concurs in judgment only, and rejects a “strict categorical analysis.”

I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not rest my conclusion upon a strict categorical analysis. Ante, at 4– 10. Rather, I base that conclusion upon the fact that the statute works First Amendment harm, while the Govern- ment can achieve its legitimate objectives in less restric- tive ways

Breyer’s entire analysis rests on an ad-hoc balancing of what he calls “speech-related harms” along with many other interests. I could call these social costs, I suppose, though perhaps the thin air up here is diminishing my thinking capacity.

In determining whether a statute violates the First Amendment, this Court has often found it appropriate to examine the fit between statutory ends and means. In doing so, it has examined speech-related harms, justifica- tions, and potential alternatives. In particular, it has taken account of the seriousness of the speech-related harm the provision will likely cause, the nature and im- portance of the provision’s countervailing objectives, the extent to which the provision will tend to achieve those objectives, and whether there are other, less restrictive ways of doing so. Ultimately the Court has had to deter- mine whether the statute works speech-related harm that is out of proportion to its justifications.

Breyer also (aptly) labels strict scrutiny as “near-automatic condemnation” and rational basis review as “near-automatic approval.” This sounds in Marshall’s (or was it Brennan’s–dammit, can’t Google up here) theory that strict scrutiny was strict in theory, but fatal in fact.

But what is most fascinating here is that Kagan joins onto Breyer’s balancing tests. Not what I expected from a former First-Amendment scholar.

Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise such concerns, and in many contexts have called for strict scrutiny. But this case does not involve such a law. The dangers of suppressing valuable ideas are lower where, as here, the regulations concern false statements about easily verifiable facts that do not concern such subject matter. Such false factual statements are less likely than are true factual statements to make a valuable contribution to the marketplace of ideas. And the government often has good reasons to prohibit such false speech. See infra, at 5–7 (listing examples of statutes and doctrines regulating false factual speech). But its regulation can nonetheless threaten speech-related harms. Those circumstances lead me to apply what the Court has termed “intermediate scrutiny” here

Breyer reject’s Holmes’s marketpalce of ideas theories. No Oliver Wendell Breyer here. Though, this echoes Breyer’s opinion in Sorrell.

Alito Dissent

Alito continues his reputation as the least-ardent supporter of the First Amendment speech (not exercise) clause. More broadly, Scalia and Roberts switched places with EMA. Scalia authored the majority opinion in EMA. Roberts concurred with Alito. Here, the Chief joins the majority opinion, but Scalia dissents.

By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a long line of cases recognizing that the right to free speech does not protect false factual statements that inflict real harm and serve no legitimate interest. I would adhere to that principle and would thus uphold the constitutionality of this valuable law.

Alito disputes that a database would be feasible, and that “counterspeech” cannot resovle this issue. He also knocks the plurality, and Breyer, for suggesting that Congress try again till it gets it right.

JUSTICE BREYER also proposes narrowing the statute so that it covers a shorter list of military awards, ante, at 9 (opinion concurring in judgment), but he does not provide a hint about where he thinks the line must be drawn. Perhaps he expects Congress to keep trying until it even- tually passes a law that draws the line in just the right place.

Alito is not concerned about the majority’s slippery slope, and risks of limiting false statements about history or science.

In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it also fails to serve any instrumen- tal purpose that the First Amendment might protect. Tell- ingly, when asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent’s counsel conceded that the answer is none.

Alito further rejects the fears of slippery slope as really an attack on over-criminalization.

In any event, if the plurality’s concern is not entirely fanciful, it falls outside the purview of the First Amend- ment. The problem that the plurality foresees—that legislative bodies will enact unnecessary and overly intru- sive criminal laws—applies regardless of whether the laws in question involve speech or nonexpressive conduct. If there is a problem with, let us say, a law making it a criminal offense to falsely claim to have been a high school valedictorian, the problem is not the suppression of speech but the misuse of the criminal law, which should be re- served for conduct that inflicts or threatens truly serious societal harm. The objection to this hypothetical law would be the same as the objection to a law making it a crime to eat potato chips during the graduation ceremony at which the high school valedictorian is recognized. The safeguard against such laws is democracy, not the First Amendment. Not every foolish law is unconstitutional.

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Apr 25, 2012

Instant Analysis: Arizona v. United States (Oral Argument)

The transcript is here. Clement v. Verrilli. Round 2. (someone should make a Hayek-Keynes video for this).


Clement opens up with a long intro, and focuses that the burden to show preemption is on the federal government, not the state:

A State does not need to point to Federal 3 authorization for its enforcement efforts. Rather, the 4 burden is on the parties seeking to preempt a duly 5 enacted State law to point to some provision in 6 statutory law that does the preempting. Now, the United 7 States can’t really do that here, and the reason is 8 obvious. 9 There are multiple provisions of the Federal 10 immigration law that go out of their way to try to 11 facilitate State and local efforts to communicate with 12 Federal immigration officials in order to ascertain the 13 immigration status of individuals.

Sotomayor’s questions focused not on the fact that a person’s immigration status could be checked after he is detained based on probable cause, but on the length of that detention [Noteworthy, Sotomayor uses the word “illegal alien”–this is the term used in the statute]:

JUSTICE SOTOMAYOR: But I want to get to 22 how — assuming your position, that doing it on 23 a — there’s nothing wrong with doing it as it’s been 24 done in the past. Whenever anyone is detained, a call 25 could be made. What I see as critical is the issue of how long, and under — and when is the officer going to 2 exercise discretion to release the person? . . .

JUSTICE SOTOMAYOR: What happens if — this 13 is the following call — the call to the — to the 14 Federal Government. Yes, he’s an illegal alien. No, we 15 don’t want to detain him. 16 What does the law say, the Arizona law say, 17 with respect to releasing that individual?

MR. CLEMENT: But — but if what we’re 5 talking about is simply what happens then for purposes 6 of the Federal immigration consequences, the answer is 7 nothing. The individual at that point is released. . . . Now, I think in that circumstance, it’s very 19 clear what would happen, is an inquiry would be made to 20 the Federal officials that would say, do you want us to 21 transfer this person to your custody or hold this person 22 until you can take custody? And if the answer is no, 23 then that’s the end of it. That individual is released, 24 because there is no independent basis in that situation 25 for the State officer to continue to detain the individual at all.

RBG asks how can the state know if a person is removable–it is often a tricky question:

JUSTICE GINSBURG: But how would the State 3 officer know if the person is removable? I mean, that’s 4 sometimes a complex inquiry. 5 MR. CLEMENT: Well, Justice Ginsburg, I 6 think there’s two answers to that. One is, you’re 7 right, sometimes it’s a complex inquiry, sometimes it’s 8 a straightforward inquiry. It could be murder, it could 9 be a drug crime. But I think the practical answer to 10 the question is by hypothesis there is going to be 11 inquiry made to the Federal immigration authorities, 12 either the Law Enforcement Support Center or a 287(g) 13 officer. And presumably, as a part of that inquiry, 14 they can figure out whether or not this is a removable 15 offense or at least a substantially likely removable 16 offense.

Justice Kennedy asks whether a person could be detained for two weeks in order to make that determination of removeability:

JUSTICE KENNEDY: If it takes two weeks to 18 make that determination, can the alien be held by the 19 State for that whole period of time — 20

MR. CLEMENT: Oh, I don’t — 21

JUSTICE KENNEDY: — just under section 6? 22

MR. CLEMENT: I don’t think so, Your Honor, 23 and I think that, you know, what — in all of these 24 provisions, you have the Fourth Amendment backing up the 25 limits, and I think so —

1 JUSTICE KENNEDY: What — what would be the 2 standard? You’re the attorney for the alien, he — they 3 are going to hold him for two weeks until they figure 4 out whether this is a removable offense, and you say, 5 under the Fourth Amendment, you cannot hold for — what? 6 More than a reasonable time or — 7

MR. CLEMENT: Yes, ultimately, it’s a 8 reasonable inquiry. And I think that under these 9 circumstances what we know from the record here is that 10 generally the immigration status inquiry is something 11 that takes 10 or 11 minutes. I mean, so it’s not — 12 we’re not talking about something — or no more than 10 13 if it’s a 287(g) officer and roughly 11 minutes on 14 average if it’s the Law Enforcement Support Center.

Clement gave a similar response to a Justice Breyer hypo–all inquiries are backed by the Fourth Amendment.

Clement’s colloquy with his former boss, Justice Scalia, highlights why this case isn’t about what everyone thinks it is about–it is not about the 4th Amendment, racial profiling, or immigration law. It is about federal preemption.

JUSTICE SCALIA: Anyway, if this is a 19 problem, is it an immigration law problem? 20 MR. CLEMENT: It — 21

JUSTICE SCALIA: Or is it a Fourth Amendment 22 problem? 23

MR. CLEMENT: Justice Scalia, it is 24 neither — 25

JUSTICE SCALIA: Is the Government’s attack on this that it violates the Fourth Amendment? 2

MR. CLEMENT: No, of course the Federal 3 Government, that also has a lot of immigration arrests 4 that are subject to the Fourth Amendment, is not making 5 a Fourth Amendment claim here. And it’s neither an 6 immigration law concern or something that should be the 7 basis for striking down a statute on its face.

In a bizarre exchange, Breyer asks Clement if it would be OK to make a statement in an opinion (presumably his dissent?)

JUSTICE BREYER: All right. Can I make the 16 following statement in the opinion, and you will say 17 that’s okay. Imagine — this is imaginary. “We 18 interpret” — imagine — “we interpret Section 2(B) as 19 not authorizing or requiring the detention of any 20 individual under 2(B), either at the stop or in prison, 21 for a significantly longer period of time than that 22 person would have been detained in the absence of 2(B).” 23 Can I make that statement in an opinion, and 24 you’ll say, that’s right? 25

MR. CLEMENT: I think what you could say — JUSTICE BREYER: Can I say that? 2

MR. CLEMENT: I don’t think you can say just 3 that. 4 JUSTICE BREYER: No.

MR. CLEMENT: I think you can say something 6 similar, though. I think you probably could say, look, 7 this is a facial challenge. The statute’s never gone 8 into effect. We don’t anticipate that Section 2(B) 9 would elongate in a significant number of cases the 10 detention or the arrest. I think you could say that.

. . . And so I don’t think that this immigration 11 status check is likely to lead to a substantial 12 elongation of the stops or the detentions.

Justice Scalia asks if Arizona has to accept in its borders illegal aliens the feds are not interested in removing. Clement says no?!

JUSTICE SCALIA: You’ll concede that the — 10 that the State has to accept within its borders all 11 people who have no right to be there, that the Federal 12 Government has no interest in removing? 13

MR. CLEMENT: No, I don’t accept that, 14 Justice Scalia, but — 15 JUSTICE SCALIA: That’s all the statute — 16 and you call up the Federal Government, and te 17 Federal — yes, he’s an illegal immigrant, but that’s 18 okay with us. 19

MR. CLEMENT: Well — 20

JUSTICE SCALIA: And the State has no power 21 to close its borders to people who have no right to be 22 there? 23

MR. CLEMENT: Well, Justice Scalia, here’s 24 my response, which is all of this discussion, at least 25 as I’ve understood it, has been about 2(B) and to a lesser extent 6. 2 Now, section 3 of the statute does provide 3 an authority under State law to penalize somebody who 4 has violated essentially the Federal registration 5 requirement. So if that’s — as to that provision, 6 there would be a State authority, even under these 7 hypotheticals, to take action with respect to the 8 individual — 9

JUSTICE KENNEDY: I think — 10 MR. CLEMENT: — but not with respect to 11 the Federal — 12 JUSTICE KENNEDY: I think Justice Scalia’s 13 question was the — was the broader one, just as a 14 theoretical matter. Can we say, or do you take the 15 position that a State must accept within its borders a 16 person who is illegally present under Federal law? 17

MR. CLEMENT: Well, and I think — 18

JUSTICE KENNEDY: And that is by reason of 19 his alien — 20

MR. CLEMENT: And I think my answer to that 21 is no. I think the reason my answer is no has more to 22 do with our defense of section 3 and other provisions 23 than it does with respect to the inquiry and arrest 24 authority provisions, 2(B) and 6.

Alito gives a lethal hypo to Clement, and smacks him down:

MR. CLEMENT: Well, if I can just kind of 16 work back for a second. I mean, obviously, it’s a 17 pretty unusual circumstance where somebody produces an 18 out-of-state driver’s license, and that doesn’t dispel 19 reasonable suspicion for the officer; but, I’ll take the 20 hypo — 21

JUSTICE ALITO: Why would it dispel 22 reasonable suspicion if it’s — if the officer knows 23 it’s a state that issues driver’s licenses to aliens who 24 are not lawfully —

MR. CLEMENT: And that might be a situation where that’s the case, and then — then it wouldn’t 2 dispel the reasonable suspicion. But, say, in the 3 average case, I think it would.

Kennedy turned to whether Arizona’s policy ” stands as an obstacle to the accomplishment and execution of the full purposes

9 and objectives of Congress.”

 JUSTICE KENNEDY: But then the government on 19 this section is going to come and say, well, there may 20 be — this must be — this — the enforcement of this 21 statute, as Arizona describes it, will be in 22 considerable tension with our — with our basic 23 approach; isn’t that what I’m going to hear from the 24 government?

MR. CLEMENT: It may be what you’re going to hear, Justice Kennedy, but I don’t think you just take 2 the Federal government for its word on these things. 3 You know, it’s interesting, in DeCanas 4 itself, the SG said that that California statute was 5 preempted. And in DeCanas, this Court didn’t say, well, 6 you know, we’ve got this language from Hines, and we 7 have the SG tell us it’s preempted, that’s good enough 8 for us. They went beyond that, and they looked hard. 9 And what they did is they established that 10 this is an area where the presumption against preemption 11 applies. So, that seems one strike in our favor. 12 We have here a situation where there is an 13 express preemption provision, and it — it only 14 addresses the employer’s side of the ledger. So the 15 express preemption provision clearly doesn’t apply here. 16 So the only thing they have is this inference —

And–in a snipe at Nino–Sotomayor talks about the legislative history:

JUSTICE SOTOMAYOR: Well, for those of us 18 for whom legislative history has some importance, there 19 seems to be quite a bit of legislative history that 20 the — that the idea of punishing employees was raised, 21 discussed and explicitly rejected.

MR. CLEMENT: And here’s why I think, if you consider the 10 legislative history, for those who do, it really 11 supports us, because here’s what Congress confronted. I 12 mean, they started thinking about this problem in 1971. 13 They passed IRCA in 1986.

Justice Kennedy asks about a double-jeopardy challenge where a person is prosecuted for violating the federal and state laws:

JUSTICE KENNEDY: Would double prosecutions 19 be — suppose that an alien were prosecuted under 20 Federal law for violating basically the terms of 3, 21 could the States then prosecute him as well? 22

MR. CLEMENT: I think they could under 23 general double jeopardy principles and the dual 24 sovereignty doctrine. Obviously, if that was a 25 particular concern to you, that might be the basis as an 1 as-applied challenge if somebody was already prosecuted 2 under Federal law.


The SG didn’t even get to his argument before he was interrupted:

GENERAL VERRILLI: Mr. Chief Justice, and 8 may it please the Court: 9 CHIEF JUSTICE ROBERTS: Before you get into 10 what the case is about, I’d like to clear up at the 11 outset what it’s not about. No part of your argument 12 has to do with racial or ethnic profiling, does it? I 13 saw none of that in your brief. 14

GENERAL VERRILLI: That’s correct. 15

CHIEF JUSTICE ROBERTS: Okay. So this is 16 not a case about ethnic profiling. 17

GENERAL VERRILLI: We’re not making any 18 allegation about racial or ethnic profiling in the case. Mr. Clement is working hard this morning to 20 portray SB 1070 as an aid to Federal immigration 21 enforcement. But the very first provision of the 22 statute declares that Arizona is pursuing its own policy 23 of attrition through enforcement and that the provisions 24 of this law are designed to work together to drive 25 unlawfully present aliens out of the State. That is something Arizona cannot do because 2 the Constitution vests exclusive —

Sotomayor returns to Scalia’s question about whether Arizona has the power to exclude (the most essential stick, no?):

JUSTICE SOTOMAYOR: General, could you 4 answer Justice Scalia’s earlier question to your 5 adversary? He asked whether it would be the 6 Government’s position that Arizona doesn’t have the 7 power to exclude or remove — to exclude from its 8 borders a person who’s here illegally. 9

GENERAL VERRILLI: That is our position, 10 Your Honor. It is our position because the Constitution 11 vests exclusive authority over immigration matters with 12 the national government.

Scalia snips back and talks about the sovereignty of the state:

JUSTICE SCALIA: All that means, it gives 14 authority over naturalization, which we’ve expanded to 15 immigration. But all that means is that the Government 16 can set forth the rules concerning who belongs in this 17 country. But if, in fact, somebody who does not belong 18 in this country is in Arizona, Arizona has no power? 19 What does sovereignty mean if it does not include the 20 ability to defend your borders? 21

GENERAL VERRILLI: Your Honor, the Framers 22 vested in the national government the authority over 23 immigration because they understood that the way this 24 nation treats citizens of other countries is a vital 25 aspect of our foreign relations. The national government, and not an individual State — 2

JUSTICE SCALIA: But it’s still up to the 3 national government. Arizona is not trying to kick out 4 anybody that the Federal government has not already said 5 do not belong here. And the Constitution provides — 6 even — even with respect to the Commerce Clause — “No 7 State shall without the consent of Congress lay any 8 imposts or duties on imports or exports except,” it 9 says, “what may be absolutely necessary for executing 10 its inspection laws.” 11 The Constitution recognizes that there is 12 such a thing as State borders and the States can police 13 their borders, even to the point of inspecting incoming 14 shipments to exclude diseased material.

The Chief honed in on the SG’s argument that it is OK for the police, in an ad hoc fashion, to ask the feds about a person’s immigration status, but not in some kind of systematic fashion:

CHIEF JUSTICE ROBERTS: It seems an odd argument to say the Federal 14 agency has to answer the state’s question, but the state 15 can’t ask it. 16

GENERAL VERRILLI: Well, we’re not saying 17 the state can’t ask it in any individual case. We 18 recognize that section — 19

CHIEF JUSTICE ROBERTS: You think there are 20 individual cases in which the state can call the Federal 21 Government and say: Is this person here illegally? 22 GENERAL VERRILLI: Yes, certainly, but that 23 doesn’t make — 24

CHIEF JUSTICE ROBERTS: Okay. So doesn’t 25 that defeat the facial challenge to the Act?

GENERAL VERRILLI: No. I don’t think so, 2 Mr. Chief Justice, because the — I think the problem 3 here is in that — is in every circumstance as a result 4 of section 2(B) of the law, backed by the penalties of 5 section 2(H), the state official must pursue the 6 priorities that the state has set, irrespective of 7 whether they are helpful to or in conflict with the 8 Federal priorities. . . .

GENERAL VERRILLI: Well, if there’s a — if 8 there’s a state policy locked into law by statute, 9 locked into law by regulation, then we have a problem. 10 If it’s not

JUSTICE ALITO: That’s what I can’t 15 understand because your argument — you seem to be 16 saying that what’s wrong with the Arizona law is that 17 the Arizona legislature is trying to control what its 18 employees are doing, and they have to be free to 19 disregard the desires of the Arizona legislature, for 20 whom they work, and follow the priorities of the Federal 21 Government, for whom they don’t work.

Even Sotomayor had difficulty following this argument:

JUSTICE SOTOMAYOR: I’m sorry. I’m a little 12 confused. General, I’m terribly confused by your 13 answer. Okay? And I don’t know that you’re focusing in 14 on what I believe my colleagues are trying to get to.

Then the argument turned to what is really at issue–racial profiling:

GENERAL VERRILLI: I think there are three. 8 The first is the — the Hines problem of harassment. 9 Now, we are not making an allegation of 10 racial profiling; nevertheless, there are already tens 11 of thousands of stops that result in inquiries in 12 Arizona, even in the absence of S.B. 1070. It stands to 13 reason that the legislature thought that that wasn’t 14 sufficient and there needed to be more. 15 And given that you have a population in 16 Arizona of 2 million Latinos, of whom only 400,000 at 17 most are there unlawfully — 18

JUSTICE SCALIA: Sounds like racial 19 profiling to me. 20 GENERAL VERRILLI: And they’re — and given 21 that what we’re talking about is the status of being 22 unlawfully present — 23

JUSTICE SOTOMAYOR: Do you have the 24 statistics as to how many arrests there are and how 25 many — and what the — percentage of calls before the Official – Subject to Final Review Alderson Reporting Company 46 1 statute? 2 GENERAL VERRILLI: There is some evidence in 3 the record, Your Honor. It’s the — the Palmatier 4 declaration, which is in the Joint Appendix, was the — 5 he was the fellow who used the run the Law Enforcement 6 Support Center, which answers the inquiries. That — 7 that declaration indicates that in fiscal year 2009, 8 there were 80,000 inquiries and — 9

JUSTICE SCALIA: What does this have to do 10 with Federal immigration law? I mean, it may have to do 11 with racial harassment, but I thought you weren’t 12 relying on that. 13


JUSTICE SCALIA: Are you objecting to 15 harassing the — the people who have no business being 16 here? Is that — surely you’re not concerned about 17 harassing them. They have been stopped anyway, and all 18 you’re doing is calling up to see if they are illegal 19 immigrants or not. 20 So you must be talking about other people 21 who have nothing to do with — with our immigration 22 laws. Okay? Citizens and — and other people, right?

Tea Party Rally in One First Street?

The Chief summed up his view pithily:

CJ: It seems to me that the Federal Government 3 just doesn’t want to know who is here illegally or not. 4

GENERAL VERRILLI: No, I — I don’t think 5 that’s right. I think we want to be able to cooperate 6 and focus on our priorities.

And the SG made a law clerk funny, that didn’t get any laughs:

I mean, I think it’s as though, if I can use 7 an analogy, if you ask one of your law clerks to bring 8 you the most important preemption cases from the last 10 9 years, and they rolled in the last — the last hundred 10 volumes of the U.S. Reports and said, well, they are in 11 there. That — that doesn’t make it — 12

CHIEF JUSTICE ROBERTS: What if they just 13 rolled in Whiting? 14 (Laughter.) 15 CHIEF JUSTICE ROBERTS: That’s a pretty good 16 one.

And the most dreaded words when arguments aren’t going well and your time is up:

Excuse me. I see my —
21 CHIEF JUSTICE ROBERTS: No, keep going.

This bit was interesting. There is no way for the Feds to verify a person is actually a citizen if they do not possess a Passport:

Today, if you use the names Sonya Sotomayor, 4 they would probably figure out I was a citizen. But 5 let’s assume it’s John Doe, who lives in Grand Rapids. 6 So they are legal. Is there a citizen database? 7

GENERAL VERRILLI: The citizen problem is 8 actually a significant problem. There isn’t a citizen 9 database. If you — 10

JUSTICE SOTOMAYOR: I’m sorry, there is or 11 there isn’t? 12

GENERAL VERRILLI: There is not. If you 13 have a passport, there is a database if you look 14 “passports.” So you could be discovered that way. But 15 otherwise there is no reliable way in the database to 16 verify that you are a citizen unless you are in the 17 passport database. So you have lots of circumstances in 18 which people who are citizens are going to come up no 19 match. There’s no — there is nothing suggesting in the 20 databases that they have an immigration problem of any 21 kind, but there’s nothing to — 22

JUSTICE SOTOMAYOR: So if you run out of 23 your house without your driver’s license or 24 identification and you walk into a park that’s closed 25 and you’re arrested, you — they make the call to this agency. You could sit there forever while they — 2


JUSTICE SOTOMAYOR: Figure out if you’re — 4

GENERAL VERRILLI: While I’m at it, there is

Oy Nino made a deportation joke. Seriously.

JUSTICE SCALIA: Well, can’t you avoid that 25 particular foreign relations problem by simply deporting 1 these people? Look, free them from the jails — 2

GENERAL VERRILLI: I really think — 3

JUSTICE SCALIA: And send them back to the 4 countries that are — that are objecting. 5

GENERAL VERRILLI: This is a — 6 JUSTICE SCALIA: What’s the problem with 7 that? . . .

JUSTICE SCALIA: So we have to — we have to 5 enforce our laws in a manner that will please Mexico. 6 Is that what you’re saying? 7

GENERAL VERRILLI: No, Your Honor, but what 8 it does — no, Your Honor, I’m not saying that — 9

JUSTICE SCALIA: Sounded like what you were 10 saying.

Phew, its done.

CHIEF JUSTICE ROBERTS: Thank you, 8 Mr. Clement, General Verrilli. Well argued on both 9 sides. Thank you.




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Apr 2, 2012

Instant Analysis: Florence v. Freeholders of County of Burlington

Strip searches are constitutional. It’s a Jersey Thing. This was a 5-4, except Thomas did not join Part IV regarding cases where an inmate is *not* transferred to the general population

Justice Kennedy Majority/Plurality Opinion

So here, the Court is not expert enough to micromanage a prison.

The case turns in part on the extent to which this Court has sufficient expertise and information in the record tomandate, under the Constitution, the specific restrictionsand limitations sought by those who challenge the visualsearch procedures at issue. In addressing this type of constitutional claim courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or un-justified response to problems of jail security. That necessary showing has not been made in this case. . . . The difficulties of operating a detention center must not be underestimated by the courts. Maintaining safety and order at these institutions requires the expertise of correctional officials, who must have substantial discretion to devise reasonable solutions to the problems they face. The Court has confirmed the importance of deference to correctional officials and explained that a regulation impinging on an inmate’s constitutional rights must be upheld “if it is reasonably related to legitimate penological interests.”

I won’t even bother trying to reconcile this with Kennedy’s opinion in Brown v. Plata that told California that it had to release 40,000 prisoners due to overcrowding. The most dangerous prisoners can be let out, but the inmates in prison for most trivial offenses can have a prison guard peer into their anuses and genitalia. Got it.

Look at how the question is phrased–the answer is not surprising:

The question here is whether undoubted security imperatives involved in jail supervision override the assertion that some detainees must be exempt from the moreinvasive search procedures at issue absent reasonablesuspicion of a concealed weapon or other contraband. The Court has held that deference must be given to the officials in charge of the jail unless there is “substantial evidence” demonstrating their response to the situation is exaggerated. Block, 468 U. S., at 584–585 (internal quotation marks omitted). Petitioner has not met this standard, and the record provides full justifications for the procedures used.

We got “undoubted security imperatives” v. mere “assertions.” And, challengers bears the burden, while the prison receives “deference.”

So AMK makes the point that offenders for minor crimes can be the most dangerous:

The record provides evidence that the seriousness of anoffense is a poor predictor of who has contraband and that it would be difficult in practice to determine whetherindividual detainees fall within the proposed exemption. People detained for minor offenses can turn out to be the most devious and dangerous criminals. Cf. Clements v. Logan, 454 U. S. 1304, 1305 (1981) (Rehnquist, J., in chambers) (deputy at a detention center shot by misdemeanant who had not been strip searched). Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Johnston, Suspect Won’t Answer Any Questions, N. Y. Times, Apr. 25, 1995, p. A1. Police stopped serial killer Joel Rifkin for the same reason.McQuiston, Confession Used to Portray Rifkin as Methodical Killer, N. Y. Times, Apr. 26, 1994, p. B6. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93. The Terrorists: Hijacker Got a Speeding Ticket, N. Y. Times, Jan. 8, 2002, p. A12. Reasonable correctional officials could conclude these uncertainties mean they must conduct the same thorough search ofeveryone who will be admitted to their facilities.

How is *any* of this in the record?

CT did not join Part IV:

This case does not require the Court to rule on the typesof searches that would be reasonable in instances where, for example, a detainee will be held without assignment tothe general jail population and without substantial contactwith other detainees. . . . before the Court, however, do not present the opportunity to consider a narrow exception of the sort JUSTICE ALITO describes, post, at 2–3 (concurring opinion), which might restrict whether an arrestee whose detention has not yet been reviewed by a magistrate or other judicial officer,and who can be held in available facilities removed from the general population, may be subjected to the types of searches at issue here.

So I gather CT would have gone even further, and held that such searches are appropriate even if the prisoner is not to be sent into general population. But, as he is wont to do, Thomas does not concur separately to tell us what is on his mind.’

And amazingly, the word “dignity” appears nowhere in AMK’s opinion (Breyer uses it in dissent). In fact, he poopoos the concerns:

Petitioner’s amici raise concerns about instances of officers engaging in intentional humiliation and other abusive practices. See Brief for Sister Bernie Galvin et al. as Amici Curiae; see also Hudson, 468 U. S., at 528 (“[I]ntentional harassment of even the most hardenedcriminals cannot be tolerated by a civilized society”); Bell, 441 U. S., at 560. There also may be legitimate concerns about the invasiveness of searches that involve the touching of detainees. These issues are not implicated on thefacts of this case, however, and it is unnecessary to con- sider them here.

Roberts, concurring

The Chief concurs (curiously?) to leave the door open to possible exceptions to the rule:

I join the opinion of the Court. As with JUSTICE ALITO, however, it is important for me that the Court does not foreclose the possibility of an exception to the rule it announces. . . . The Court makes a persuasive case for the general applicability of the rule it announces. The Court is nonetheless wise to leave open the possibility of exceptions, toensure that we “not embarrass the future.” Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 300 (1944) (Frankfurter, J.).

Imagine that JGR assigns an opinion to AMK, and the Chief concurs to say the majority isn’t balanced enough in favor of prisoner rights.

Alito, concurring

Alito also joins to narrow the scope of the opinion:

nothold that it is always reasonable to conduct a full strip search of an arrestee whose detention has not been reviewed by a judicial officer and who could be held in available facilities apart from the general population. Most of those arrested for minor offenses are not dangerous, and most are released from custody prior to or at the time oftheir initial appearance before a magistrate. In some cases, the charges are dropped. In others, arrestees are released either on their own recognizance or on minimal bail. In the end, few are sentenced to incarceration. For these persons, admission to the general jail population, with the concomitant humiliation of a strip search, may not be reasonable, particularly if an alternative procedure is feasible.

So in other words, if the person is not dangerous, he should not be humiliated.

Breyer, dissenting

So much for Sotomayor writing the majority opinion. She didn’t even write the dissent, which makes me think that she never had it assigned to her.

In contrast, rather than opening up with an ode to judicial deference to experts, Breyer (of all people!) focus on the humiliating nature of strip searchers:

In my view, such a search of an individual arrested for aminor offense that does not involve drugs or violence—saya traffic offense, a regulatory offense, an essentially civilmatter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believethat the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.

Breyer focuses on the safety cost to the individual’s dignity. Kennedy focuses on the liberty cost to the prison’s order and security.

I doubt that we seriously disagreeabout the nature of the strip search or about the seriousaffront to human dignity and to individual privacy that it presents. The basic question before us is whether sucha search is nonetheless justified when an individual arrested for a minor offense is involuntarily placed in the general jail or prison population.

This dissent is somewhat unique as it tracks so carefully where it agrees with, and departs with the majority:

Nonetheless, the “particular” invasion of interests, Bell, 441 U. S., at 559, must be “‘reasonably related’” to the justifying “penological interest” and the need must not be “‘exaggerated.’” Turner, supra, at 87. It is at this point that I must part company with the majority. I have found no convincing reason indicating that, in the absence of reasonable suspicion, involuntary strip searches of thosearrested for minor offenses are necessary in order to further the penal interests mentioned. And there are strongreasons to believe they are not justified.

Here, the prison officials bear the burden of justifying their policy.

Indeed, neither the majority’s opinion nor the briefs setforth any clear example of an instance in which contraband was smuggled into the general jail population during intake that could not have been discovered if the jail was employing a reasonable suspicion standard. . . .

The majority is left with the word of prison officials insupport of its contrary proposition. And though that wordis important, it cannot be sufficient.

And, of course, Breyer cites experts!

Second, there is the plethora of recommendations of professional bodies, such as correctional associations, that have studied and thoughtfully considered the matter. The American Correctional Association (ACA)—an association that informs our view of “what is obtainable and what is acceptable in corrections philosophy,” Brown v. Plata, 563 U. S. ___, ___ (2011) (slip op., at 43)—has promulgated a standard that forbids suspicionless strip searches.


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Apr 2, 2012

Instant Analysis: Rehberg v. Paulk

This paragraph just about sums up the entire 9-0 opinion per Justice Alito:

The factors that justify absolute immunity for trialwitnesses apply with equal force to grand jury witnesses.In both contexts, a witness’ fear of retaliatory litigationmay deprive the tribunal of critical evidence. And in neither context is the deterrent of potential civil liability needed to prevent perjurious testimony. In Briscoe, the Court concluded that the possibility of civil liability wasnot needed to deter false testimony at trial because othersanctions—chiefly prosecution for perjury—provided a sufficient deterrent. Id., at 342. Since perjury before agrand jury, like perjury at trial, is a serious criminaloffense, see, e.g., 18 U. S. C. §1623(a), there is no reason to think that this deterrent is any less effective in preventingfalse grand jury testimony

And Alito goes all historical to explain why “complaining witnesses” can be liable under 1983, but not for testifying before Grand Jury:

is true that a mid-19th century complaining witness might testify, either before a grand jury or at trial. But testifying was not a necessary characteristic of a “complaining witness.” See M. Newell, Malicious Prosecution 368 (1892). Nor have we been presented with evidence that witnesses who did no more than testify before a grand jury were regarded as complaining witnesses and weresuccessfully sued for malicious prosecution. See Tr. of Oral Arg. 14–15, 24–25.
In sum, testifying, whether before a grand jury or attrial, was not the distinctive function performed by a complaining witness. It is clear—and petitioner does notcontend otherwise—that a complaining witness cannotbe held liable for perjurious trial testimony. Briscoe, 460 U. S., at 326. And there is no more reason why a complaining witness should be subject to liability for testi- mony before a grand jury.

Oh that pesky Roberts Court closing the courtroom doors to civil rights litigation! These contentious 9-0 opinions really shake the public’s opinion in the rule of law.

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Mar 28, 2012

Instant Analysis: NFIB v. Sebellius (Severability)

Transcript is here.


Sotomayor jumped on Clement right out of the gate, stressing that the Court is “not in the habit of doing the legislative findings.” Clement dodged her questions several times about letting the people solve this problem:

JUSTICE SOTOMAYOR: I want a bottom line is why don’t we let Congress fix it?
MR. CLEMENT: Well, let me answer the bottom line question, which is, no matter what you do in this case, at some point there’s going to be — if you strike down the mandate, there is going to be something for Congress to do. The question is really, what task do you want to give Congress. Do you want to give Congress the task of fixing the statute after something has been taken out, especially a provision at the heart, or do you want to give Congress the task of fixing health care? And I think it would be better in this situation

And Sotomayor asks about aggregating more power for the Court:

JUSTICE SOTOMAYOR: Are you suggesting that we should take on more power to the Court?
SOTOMAYOR: Because Congress would choose to take one path rather than another. That’s sort of taking onto the Court more power than one I think would want.

Scalia asks a question about whether we look to Congressional intent:

SCALIA: Mr. Clement, I want to ask you about that. Why — why do we look to the — are you sure we look to the intent of the Congress? I thought that, you know, sometimes Congress says that these provisions will — all the provisions of this Act will be severable. And we ignore that when the Act really won’t work. When the remaining provisions just won’t work. Now how can you square that reality with the proposition that what we’re looking for here is what would this Congress have wanted?
MR. CLEMENT: Well, two responses, Justice Scalia. We can look at this Court’s cases on severability, and they all formulate the task a little bit differently.
JUSTICE SCALIA: Yes, they sure do.
MR. CLEMENT: And every one of them talks about congressional intent. But here’s, here’s the other answer -JUSTICE
SCALIA: That’s true, but is it right?

Scalia goes into the manner in which it was passed:

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what you call the corn husker kickback, okay, we find that to violate the constitutional proscription of venality, okay?

JUSTICE SCALIA: When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the corn husker kickback is bad. That can’t be right.

Kagan breaks bread with Clement:

JUSTICE KAGAN: Although the exchanges function perfectly well in Utah where there is no mandate. They function differently, but they function. And the question is always, does Congress want half a loaf. Is half a loaf better than no loaf? And on something like the exchanges it seems to me a perfect example where half a loaf is better than no loaf. The exchanges will do something. They won’t do everything that Congress envisioned.

MR. CLEMENT: Well, Justice Kagan, I think there are situations where half a loaf is actually worse and I want to address that. But before I do it -broadly. But before I do that, if I could stick with just the exchanges.

Kagan looks to Booker!

JUSTICE KAGAN: Mr. Clement, you just said something which you say a lot in your brief. You say the question is the manner in which it would have operated. And I think that that’s not consistent with our cases. And I guess the best example would be Booker where we decided not to sever provisions, notwithstanding that the sentencing guidelines clearly operate in a different manner now than they did when Congress passed them. They operate as advisory rather than mandatory.
MR. CLEMENT: Well, but Justice Kagan, I mean I actually think Booker supports our point as well, because there are two aspects of the remedial holding of Booker. And the first part of it, which I think actually very much supports our point is where the majority rejects the approach of the dissent, which actually would have required nothing in the statute to have been struck, not a single word.

But nonetheless this Court said, well, if you do that then all of the sentencing is basically

going to be done by a combination of the juries and the prosecutors and the judges are going to be cut out. And the Court said the one thing we know is that’s not the manner in which Congress thought that this should operate.
Now later they make a different judgment about the — which particular provisions to cut out. But I do think Booker is consistent with this way of looking at it and certainly consistent with Brock, the opinion we rely on because there the Court only reached that part of the opinion after they already found that the must-hire provision operated functionally independent from the legislative detail, so

RBG takes the *conservative* approach:

So why should we say it’s a choice between a wrecking operation, which is what you are requesting, or a salvage job. And the more conservative approach would be salvage rather than throwing out everything.

Clement views PPACA without the mandate as just a “hollow shell.”

if you follow that through what you end up with at the end of that process is just sort of a hollow shell. And at that point I think there is a strong argument for not — I mean, you can’t possibly think that Congress would have passed that hollow shell without the heart of the Act.

AMK opens up:

KENNEDY: But I’m still not sure, what is the test — and this was the colloquy you had with Justice Scalia with the corn husker hypothetical. So I need to know what standard you are asking me to apply. Is it whether as a rational matter separate parts could still function, or does it focus on the intent of the Congress?
If you — suppose you had party A wants proposal number 1, party B wants proposal number 2. Completely unrelated. One is airline rates, the other is milk regulation. And we — and they decide them together. The procedural rules are these have to be voted on as one. They are both passed. Then one is declared unconstitutional. The other can operate completely independently. Now, we know that Congress would not have intended to pass one without the other. Is that the end of it, or is there some different test? Because we don’t want to go into legislative history, that’s intrusive, so we ask whether or not an objective — as an objective rational matter one could function without — I still don’t know what the test is that we are supposed to apply. And this is the same question as Justice Scalia asked. Could you give me some help on that?

Clement prefers an objective test based on text!

MR. CLEMENT: I’m — I’m a big believer in objective tests, Justice Kennedy. I would be perfectly happy with you to apply a more textually based objective approach. I think there are certain justices that are more inclined to take more of a peek at legislative history, and I think if you look at the legislative history of this it would only fortify the conclusion that you would reach from a very objective textual inquiry. But I am happy to focus the Court on the objective textual inquiry. . . .

MR. CLEMENT: Is whether the statute can operate in the manner that Congress — that Congress intended.

Sotomayor would turn severability doctrine into a simple test–if Congress says nothing, don’t sever:

SOTOMAYOR: So what is wrong with the presumption that our law says, which is we presume that Congress would want to sever? Wouldn’t that be the simplest, most objective test? Going past what Justice Scalia says we have done, okay, get rid of legislative intent altogether, which some of our colleagues in other contexts have promoted, and just say: Unless Congress tells us directly, it’s not severable, we shouldn’t sever. We should let them fix their problems.
You still haven’t asked — answered me why in a democracy structured like ours, where each branch does different things, why we should involve the Court in making the legislative judgment?

Clement’s answer, crushing:

MR. CLEMENT: Well, one thing that’s wrong with that, which is still at a smaller level, is that’s inconsistent with virtually every statement in every one of your severability opinions, which all talk about congressional intent.

Kagan tries to bail out Soto:

JUSTICE KAGAN: Well, it’s not inconsistent with our practice, right, Mr. Clement? I mean, you have to go back decades and decades and decades, and I’m not sure even then you could find a piece of legislation that we refused to sever for this reason.

MR. CLEMENT: I don’t think that’s right, Justice Kagan. I think there are more recent examples. A great example I think which sort of proves, and maybe is a segue to get to my broader point, is a case that involves a State statute, not a Federal statute, but I don’t think anything turns on that, is Randall against Sorrell, where this Court struck down various provisions of the Vermont campaign finance law.

And Clement calls out Buckley! The Court would have been better off striking down the entire act.

And if I could make the broader point, I mean, I think the reason it makes sense in the democracy with separation of powers to in some cases sever the whole thing is because sometimes a half a loaf is worse. And a great example, if I dare say so, is Buckley. In Buckley this Court looked at a statute that tried to, in a coherent way, strike down limits on contributions and closely related expenditures.

This Court struck down the ban on expenditures, left the contribution ban in place, and for 4 decades Congress has tried to fix what’s left of the statute, largely unsuccessfully, whereas it would have I think worked much better from a democratic and separation of powers standpoint if the Court would have said: Look, expenditures are — you can’t limit expenditures under the Constitution; the contribution provision is joined at the hip. Give Congress a chance to actually fix the problem.

Not even Breyer read the bill (you can hear him flipping through the 2700 pages of the bill)

BREYER: Could I ask you one question, which is a practical question. I take as a given your answer to Justice Kennedy, you are saying let’s look at it objectively and say what Congress has intended, okay? This is the mandate in the community, this is Titles I and II, the mandate, the community, pre-existing condition, okay? Here’s the rest of it, you know, and when I look through the rest of it, I have all kinds of stuff in there. And I haven’t read every word of that, I promise. As you pointed out, there is biosimilarity, there is breast feeding, there is promoting nurses and doctors to serve underserved areas,

there is the CLASS Act, etcetera.
What do you suggest we do? I mean, should we appoint a special master with an instruction? Should we go back to the district court? You haven’t argued most of these. As I hear you now, you’re pretty close to the SG. I mean, you’d like it all struck down, but we are supposed to apply the objective test. I don’t know if you differ very much.
So what do you propose that we do other than spend a year reading all this and have you argument all this? . . .

So that’s — do you know what you have there? A total off-the-cuff impression. So that’s why I am asking you, what should I do?

Then Clement starts talking about how many of Breyer’s provisions perhaps aren’t so uncontroversial:

MR. CLEMENT: At — at a certain point, I just think that, you know, the better answer might be to say, we’ve struck the heart of this Act, let’s just give Congress a clean slate. If it’s so easy to have that other big volume get reenacted, they can do it in a couple of days; it won’t be a big deal. If it’s not, because it’s very -(
MR. CLEMENT: — well, but — I mean, you can laugh at me if you want, but the point is, I’d rather suspect that it won’t be easy. Because I rather suspect that if you actually dug into that, there’d be something that was quite controversial in there and it couldn’t be passed quickly -CHIEF
JUSTICE ROBERTS: But the — the -MR.
CLEMENT: — and that’s our whole point.

And the Chief wades into some public choice shit.

CHIEF JUSTICE ROBERTS: — the — the reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote.
Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the black lung provision, and I’ll go along with it. That’s why all — many of these provisions I think were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together, the votes to get it through.


No Buckley redux!

 I think you do want to strike it all down to avoid a redux of Buckley.


Scalia talks more about the political process:

SCALIA: — don’t you think it’s unrealistic to say leave it to Congress, as though you are sending it back to Congress for Congress to consider it dispassionately on balance, should we have this provision or should we not have provision? That’s not what it’s going to be. It’s going to be, these provisions are in effect; even though you — a lot of you never wanted them to be in effect, and you only voted for them because you wanted to get the heart of the — the Act, which has now been cut out; but

nonetheless these provisions are the law, and you have to get the votes to overturn them. That’s an enormously different question from whether you get the votes initially to put them into the law.
What — there, there is no way that this Court’s decision is not going to distort the congressional process. Whether we strike it all down or leave some of it in place, the congressional process will never be the same. One way or another, Congress is going to have to reconsider this, and why isn’t it better to have them reconsider it — what — what should I say — in toto, rather than having some things already in the law which you have to eliminate before you can move on to consider everything on balance?

Scalia was getting really ornery.

JUSTICE SCALIA: Mr. Kneedler, what happened
to the Eighth Amendment? You really want us to go
through these 2,700 pages?
JUSTICE SCALIA: And do you really expect the Court to do that? Or do you expect us to — to give this function to our law clerks?
Is this not totally unrealistic? That we are going to go through this enormous bill item by item and decide each one?
SOTOMAYOR: I thought the answer was you don’t have to because -MR.

That would be making the Court into a “whip count!” Kagan needled Nino

MR. KNEEDLER: That is correct, and I’d also like to — going — I just want to finish the thought I had about this being a matter of statutory interpretation. The Court’s task, we submit, is not to look at the legislative process to see whether the bill would been — would have passed or not based on the political situation at the time, which would basically convert the Court into a function such as a whip count. That is not the Court’s

JUSTICE KAGAN: And Mr. Kneedler, that would be a revolution -MR.
JUSTICE KAGAN: — in our severability law, wouldn’t it?
MR. KNEEDLER: It would.
JUSTICE KAGAN: I mean, we have never suggested that we were going to say, look, this legislation was a brokered compromise and we are going to try to figure out exactly what would have happened in the complex parliamentary shenanigans that go on across the street and figure out whether they would have made a difference.
Instead, we look at the text that’s actually given us. For some people, we look only at the text. It should be easy for Justice Scalia’s clerks.
MR. KNEEDLER: I — I think — I think that -JUSTICE
SCALIA: I don’t care whether it’s easy for my clerks. I care whether it’s easy for me.

Scalia is like the grumpy old man.

AMK asks about imposing risk insurance companies! The pro-corporation Roberts Court!

JUSTICE KENNEDY: But I still don’t understand where you are with the answer to Justice Alito’s question.

Assume that there is a, a substantial
probability that the 350 billion plus 350 billion equals 7 is going to be cut in half if the individual mandate is — is stricken. Assume there is a significant possibility of that. Is it within the proper exercise of this Court’s function to impose that kind of risk? Can we say that the Congress would have intended that there be that kind of risk?
MR. KNEEDLER: Well, we don’t think it’s in the Court’s place to look at the, at the budgetary implications, and we also -JUSTICE
KENNEDY: But isn’t that — isn’t that the point then, why we should just assume that it is not severable?
JUSTICE KENNEDY: If we — if we lack the competence to even assess whether there is a risk, then isn’t this an awesome exercise of judicial power?
KENNEDY: To say we are doing something and we are not telling you what the consequences might be?

Yawn. I am on SCOTUS overload this week. I’ll blog as I listen if anything big comes up.

Kennedy again asks about expertise:

JUSTICE KENNEDY: But you are saying we have — we have the expertise to make the inquiry you want us to make, i.e., the guaranteed-issue, but not the expertise that Justice Alito’s question suggests we must make.
KENNEDY: I just don’t understand your position.


Oh the details here are so wonky.

Scalia is grumpy, and asks about a dictionary:

SCALIA: Is there any dictionary

that gives that -MR.
FARR: I’m sorry, Justice Scalia?
JUSTICE SCALIA: — that definition of “essential”? It’s very imaginative. Just give me one dictionary.
MR. FARR: Well, but I think my point, Justice Scalia, is that they are not using it in the true dictionary sense.
JUSTICE SCALIA: How do we know that? When people speak, I assume they are speaking English.

Clement on Rebuttal

More on Buckley!

And that takes me to my last point, which is simply this court in Buckley created a halfway house and it took Congress 40 years to try to deal with the situation, when contrary to any time of their intent, they had to try to figure out what are we going to do when we are stuck with this ban on contributions, but we can’t get at expenditures because the Court told us we couldn’t? And for 40 years they worked in that halfway house. Why make them do that in health care? The choice is to give Congress the task of fixing this statute, the residuum of this statute after some of it is struck down, or giving them the task of simply fixing the problem on a clean slate. I don’t think that is a close choice. If the individual mandate is unconstitutional, the rest of the Act should fall.

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Mar 27, 2012

Instant Analysis or Oral Arugment: HHS v. Florida (Individual Mandate)

The transcript is here. Here we go!


Verilli starts off coughing and stumbling. Unreal. Apparently he was sweating and took a glass of water. He talks about how the current health care market fails.

Scalia asks why aren’t those problems the federal government address them directly. SG says the act regulates the means by which health care is purchased.

JUSTICE SCALIA: Why aren’t those problems that the Federal Government can address directly?

Then Kennedy jumps in and asks if you can create commerce in order to regulate it?

JUSTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That’s not what’s going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the — what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce. And –

Scalia pushes the boundaries of this theory. SG thinks the health care market is just unique.

JUSTICE SCALIA: Any self purchasing? Anything I — you know if I’m in any market at all, my failure to purchase something in that market subjects me to regulation.

Roberts asks about emergency services–you don’t know when you’ll need it. Can gov require you buy a cell phone?

CHIEF JUSTICE ROBERTS: Well, the same, it  seems to me, would be true say for the market in emergency services: police, fire, ambulance, roadside assistance, whatever. You don’t know when you’re going to need it; you’re not sure that you will. But the same is true for health care. You don’t know if you’re going to need a heart transplant or if you ever will. So there is a market there. To — in some extent, we all participate in it.

So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services? You can just dial 911 no matter where you are?

GENERAL VERRILLI: No, Mr. Chief Justice. think that’s different. It’s — We — I don’t think we think of that as a market. This is a market. This is market regulation. And in addition, you have a situation in this market not only where people enter involuntarily as to when they enter and won’t be able to control what they need when they enter but when they -CHIEF
JUSTICE ROBERTS: It seems to me that’s the same as in my hypothetical. You don’t know when you’re going to need police assistance. You can’t predict the extent to emergency response that you’ll need. But when you do, and the government provides it. I thought that was an important part of your argument,

that when you need health care, the government will make sure you get it. Well, when you need police assistance or fire assistance or ambulance assistance, the government is going to make sure to the best extent it can that you get it — get it.
GENERAL VERRILLI: I think the fundamental difference, Mr. Chief Justice, is that that’s not an issue of market regulation. This is an issue of market regulation, and that’s how Congress, that’s how Congress looked at this problem. There is a market. Insurance is provided through the market system

Then Alito asked about another type of insurance we will all need- burial insurance:

ALITO: Do you think there is a, a market for burial services?
GENERAL VERRILLI: For burial services?
GENERAL VERRILLI: Yes, Justice Alito, I think there is.
JUSTICE ALITO: All right, suppose that you and I walked around downtown Washington at lunch hour and we found a couple of healthy young people and we stopped them and we said, “You know what you’re doing? You are financing your burial services right now because eventually you’re going to die, and somebody is going to have to pay for it, and if you don’t have burial insurance and you haven’t saved money for it, you’re  going to shift the cost to somebody else.” Isn’t that a very artificial way of talking about what somebody is doing?

ALITO: And if that’s true, why isn’t it equally artificial to say that somebody who is doing absolutely nothing about health care is financing health care services? . . .

ALITO: I don’t see the difference. You can get burial insurance. You can get health insurance. Most people are going to need health care. Almost everybody. Everybody is going to be buried or cremated at some point. What’s the difference?

There is cost shifting with burial insurance too!

GENERAL VERRILLI: Well, one big difference, one big difference, Justice Alito, is the — you don’t have the cost shifting to other market participants. Here -JUSTICE
ALITO: Sure you do, because if you don’t have money then the State is going to pay for it. Or some -GENERAL
VERRILLI: That’s different.
JUSTICE ALITO: Or a family member is going to pay.

You’d think SG could have had better answers prepared… I bet Kagan wishes she was on the other side of the bench. Not really. But you know. A friend at argument told me Barnett’s jaw dropped when he heard the burial insurance hypothetical.

Alito makes a strong public choice argument–that the point of the mandate is to subsidize insurance companies (hello rent-seeking!)

So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn’t — if those figures are right, isn’t it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.
GENERAL VERRILLI: No, I think that — I do think that’s what the Respondents argue. It’s just not right. I think it — it really gets to a fundamental problem with their argument.

OMG. Kennedy said unprecedented!

JUSTICE KENNEDY: Could you help — help me with this. Assume for the moment — you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?
I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

SG tried to define the healthcare unique market quite broadly:

So two things about that, Justice Kennedy. First, we think this is regulation of people’s participation in the health care market, and all — all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market

Scalia tried to separate health care elements, and asked about broccoli!

JUSTICE SCALIA: Why do you — why do you define the market that broadly? Health care. It may well be that everybody needs health care sooner or later, but not everybody needs a heart transplant, not everybody needs a liver transplant. Why -GENERAL

VERRILLI: That’s correct, Justice Scalia, but you never know whether you’re going to be that person.
JUSTICE SCALIA: Could you define the market — everybody has to buy food sooner or later, so you define the market as food, therefore, everybody is in the market; therefore, you can make people buy broccoli.

GENERAL VERRILLI: No, that’s quite different. That’s quite different. The food market, while it shares that trait that everybody’s in it, it is not a market in which your participation is often unpredictable and often involuntary. It is not a market in which you often don’t know before you go in what you need, and it is not a market in which, if you go in and — and seek to obtain a product or service, you will get it even if you can’t pay for it. It doesn’t –

Scalia isn’t buying SG’s distinction:

JUSTICE SCALIA: Is that a principal basis for distinguishing this from other situations? I mean, you know, you can also say, well, the person subject to this has blue eyes. That would indeed distinguish it from other situations. Is it a principle basis?
I mean, it’s — it’s a basis that explains why the government is doing this, but is it — is it a basis which shows that this is not going beyond what — what the — the system of enumerated powers allows the government to do.

Breyer returns to the issue of whether Congress can create commerce, and then regulate it! To Breyer, Congress can make you do anything!

JUSTICE BREYER: All right. So if that is your difference — if that is your difference, I’m somewhat uncertain about your answers to — for example, Justice Kennedy asked, can you, under the Commerce Clause, Congress create commerce where previously none existed.
Well, yeah, I thought the answer to that was, since McCulloch versus Maryland, when the Court said Congress could create the Bank of the United States which did not previously exist, which job was to create commerce that did not previously exist, since that time the answer has been, yes. I would have thought that your answer — can the government, in fact, require you to buy cell phones or buy burials that, if we propose comparable situations, if we have, for example, a uniform United States system of paying for every burial such as Medicare Burial, Medicaid Burial, CHIP Burial, ERISA Burial and Emergency Burial beside the side of the road, and Congress wanted to rationalize that system, wouldn’t the answer be, yes, of course, they could.

JUSTICE BREYER: And the same with the computers or the same with the — the cell phones, if you’re driving by the side of the highway and there is a federal emergency service just as you say you have to buy certain mufflers for your car that don’t hurt the environment, you could — I mean, see, doesn’t it depend on the situation?

Not even SG would go there!

GENERAL VERRILLI: My responsibility — and I would defend them on a rationale like that, but I do think that we are advancing a narrower rationale.

BOOM- AMK asks if there are any limits on the Commerce Clause:

JUSTICE KENNEDY: Well, then your question is whether or not there are any limits on the Commerce Clause. Can you identify for us some limits on the Commerce Clause?

SG stutters  a bit to start. This should’ve been a cold memorized answer.

GENERAL VERRILLI: Yes. The — the rationale purely under the Commerce Clause that we’re advocating here would not justify forced purchases of commodities for the purpose of stimulating demand. We — the — it would not justify purchases of insurance for the purposes — in situations in which insurance doesn’t serve as the method of payment for service

Tony ain’t buying:

JUSTICE KENNEDY: But why not? If Congress — if Congress says that the interstate commerce is affected, isn’t, according to your view, that the end of the analysis.

SG’s answer was not persuasive to the Chief:

GENERAL VERRILLI: No. The, the — we think that in a — when — the difference between those situations and this situation is that in those situations, Your Honor, Congress would be moving to create commerce. Here Congress is regulating existing commerce, economic activity that is already going on, people’s participation in the health care market, and is regulating to deal with existing effects of existing commerce.

CHIEF JUSTICE ROBERTS: That — that it seems to me, it’s a — it’s a passage in your reply brief that I didn’t quite grasp. It’s the same point. You say health insurance is not purchased for its own sake, like a car or broccoli; it is a means of financing health care consumption and covering universal risks. Well, a car or broccoli aren’t purchased for their own sake, either. They are purchased for the sake of transportation or in broccoli, covering the need for food. I — I don’t understand that distinction.
GENERAL VERRILLI: The difference, Mr. Chief Justice, is that health insurance is the means of payment for health care and broccoli is

CHIEF JUSTICE ROBERTS: Well, now that’s a

significant — I’m sorry.
GENERAL VERRILLI: And — and broccoli is not the means of payment for anything else. And an automobile is not -CHIEF
JUSTICE ROBERTS: It’s the means of satisfying a basic human need, just as your insurance is a means of satisfying -GENERAL
VERRILLI: But I do think that’s the difference between existing commerce activity in the market already occurring — the people in the health care market purchasing, obtaining health care services — and the creation of commerce. And the principle that we are advocating here under the Commerce Clause does not take the step of justifying the creation of commerce. It’s a regulation of the existing commerce.

RBG asks about cost-shifting as the basis beneath the law, but Scalia says the same rational applies to cars:

GENERAL VERRILLI: That — that absolutely is a justification for Congress’s action here. That is existing economic activity that Congress is regulating by means of this rule.
JUSTICE SCALIA: General Verrilli, you -you could say that about buying a car. If — if people don’t buy cars, the price that those who do buy cars pay will have to be higher. So you could say in order to bring the price down, you are hurting these other people by not buying a car.
GENERAL VERRILLI: That is not what we are saying, Justice Scalia.
JUSTICE SCALIA: That’s not — that’s not what you’re saying.
SCALIA: I thought it was.
I thought you were saying other people are going to have to pay more for insurance because you’re not buying it.

In the midst of a long solliloquy, Sotomayor made a 1% Joke!

Because virtually no one, perhaps with the exception of 1 percent of the population, can afford the massive cost if the unexpected happens.

Kagan asks about alternative ways of dealing with the cost shifting?

JUSTICE KAGAN: General, you’ve talked on -a couple of times about other alternatives that Congress might have had, other alternatives that the Respondents suggest to deal with this problem, in particular, the alternative of mandating insurance at the point at which somebody goes to a hospital or an emergency room and asks for care.
Did Congress consider those alternatives? Why did it reject them? How should we think about the question of alternative ways of dealing with these problems?

SG keeps going back to means, and that Congress should receive deference (paging Lochner!):

GENERAL VERRILLI: I do think, Justice Kagan, that the point of difference between my friends on the other side and the United States is about one of timing. They have agreed that Congress has Article I authority to impose an insurance requirement or other -or other penalty at the point of sale, and they have agreed that Congress has the authority to do that to achieve the same objectives that the minimum coverage provision of the Affordable Care Act is designed to achieve. This is a situation if which we are talking about means. Congress gets a substantial deference in the choice of means, and if one thinks about the difference between the means they say Congress should have chosen and the means Congress did choose, I think you can see why it was eminently more sensible for Congress to choose the means that it chose.

AMK asks about single payer national health service, and whether it is using the tax payer:

JUSTICE KENNEDY: I’m not sure which way it cuts. If the Congress has alternate means, let’s assume it can use the tax power to raise revenue and to just have a national health service, single payer. How does that factor into our analysis? In the one sense, it can be argued that this is what the government is doing; it ought to be honest about the power that it’s using and use the correct power. On the other hand, it means that since the Court can do it anyway — Congress can do it anyway, we give a certain amount of latitude. I’m not sure which the way the argument goes.

SG says the Court has upheld other similarly novel and *gasp* unprecedented Act!

But beyond that, in the sense that it’s novel, this provision is novel in the same way, or unprecedented in the same way, that the Sherman Act was unprecedented when the Court upheld it in the Northern Securities case; or the Packers and Stockyards Act was unprecedented when the Court upheld it, or the National Labor Relations Act was unprecedented when the Court upheld it in Jones and Laughlin; or the — the dairy price supports in Wrightwood Dairy and Rock Royal

Scalia pulls back and says, that all those cases involved commerce!

SCALIA: Oh, no, it’s not. They all involved commerce. There was no doubt that was what regulated was commerce. And here you’re regulating somebody who isn’t covered [I heard *commerce* not covered].
By the way, I don’t agree with you that the relevant market here is health care. You’re not regulating health care. You’re regulating insurance. It’s the insurance market that you’re addressing and you’re saying that some people who are not in it must be in it and that’s — that’s difference from regulating in any manner commerce that already exists out there.

Scalia then asks about the distinction between “necessary” and “proper.” (This is a point Ilya Somin raised in his WLF Amicus)

JUSTICE SCALIA: Wait. That’s — that’s -it’s both “Necessary and Proper.” What you just said addresses what’s necessary. Yes, has to be reasonably adapted. Necessary does not mean essential, just reasonably adapted. But in addition to being necessary, it has to be proper. And we’ve held in two cases that something that was reasonably adapted was not proper because it violated the sovereignty of the States, which was implicit in the constitutional structure.

The argument here is that this also is — may be necessary, but it’s not proper because it violates an equally evident principle in the Constitution, which is that the Federal Government is not supposed to be a government that has all powers; that it’s supposed to be a government of limited powers. And that’s what all this questioning has been about. What — what is left? If the government can do this, what, what else can it not do?

GENERAL VERRILLI: This does not violate the norm of proper as this Court articulated it in Printz or in New York because it does not interfere with the States as sovereigns. This is a regulation that — this is a regulation -JUSTICE
SCALIA: No, that wasn’t my point. That is not the only constitutional principle that exists.
SCALIA: An equally evident constitutional principle is the principle that the Federal Government is a government of enumerated powers and that the vast majority of powers remain in the States and do not belong to the Federal Government. Do you acknowledge that that’s a principle?

GENERAL VERRILLI: Of course we do, Your Honor.
JUSTICE SCALIA: Okay. That’s what we are talking about here.

SG was answering a different question then Scalia asked. This was an anti-commandeering answer. Scalia was asking about N&P. I like that. So there are apparently several different principles to inform the “proper” aspect of N&P.

 JUSTICE SCALIA: I mean, the Tenth Amendment says the powers not given to the Federal Government are reserved, not just to the States, but to the States and the people. And the argument here is that the people were left to decide whether they want to buy insurance or not.

And Verrilli answers with LOCHNER (just emailed David Bernstein):

GENERAL VERRILLI: But this — but, Your Honor, this is — what the Court has said, and I think it would be a very substantial departure from what the Court has said, is that when Congress is regulating economic activity with a substantial effect on interstate commerce that will be upheld. And that is what is going on here, and to embark on — I would submit with all due respect, to embark on the kind of analysis that my friends on the other side suggest the Court ought to embark on is to import Lochner-style substantive due process –

CHIEF JUSTICE ROBERTS: The key in Lochner is that we were talking about regulation of the States, right, and the States are not limited to enumerated powers. The Federal Government is. And it seems to me it’s an entirely different question when you ask yourself whether or not there are going to be limits in the Federal power, as opposed to limits on the States, which was the issue in Lochner.

Did the Chief just issue a qualified defense of Lochner? SG didn’t mean Lochner in the sense of state/federal. He meant the Court was scrutinizing economic regulations. Oh boy. Liberals are going to go nuts over this.

AMK brings it back to the law of torts, and no affirmative duties:

JUSTICE KENNEDY: But the reason, the reason this is concerning, is because it requires the individual to do an affirmative act. In the law of torts our tradition, our law, has been that you don’t have the duty to rescue someone if that person is in danger. The blind man is walking in front of a car and you do not have a duty to stop him absent some relation between you. And there is some severe moral criticisms of that rule, but that’s generally the rule.
And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases and that changes the relationship of the Federal Government to the individual in the very fundamental way.

Roberts makes the point that people are forced to buy more products then they will need:

CHIEF JUSTICE ROBERTS: Well, but it’s critical how you define the market. If I understand the law, the policies that you’re requiring people to purchase involve — must contain provision for maternity and newborn care, pediatric services, and substance use treatment. It seems to me that you cannot say that everybody is going to need substance use treatment, substance use treatment or pediatric services, and yet that is part of what you require them to purchase.
GENERAL VERRILLI: Well, it’s part of what the statute requires the insurers to offer. And I think the reason is because it’s trying to define minimum essential coverage because the problem -CHIEF
JUSTICE ROBERTS: But your theory is that there is a market in which everyone participates because everybody might need a certain range of health care services, and yet you’re requiring people who are not — never going to need pediatric or maternity services to participate in that market.

SG kept going back to giving Congress latitude and deference Lochner. Word.

GENERAL VERRILLI: The — with respect to what insurance has to cover, Your Honor, I think Congress is entitled the latitude of making the judgments of what the appropriate scope of coverage is. And the problem here in this market is that for — you may think you’re perfectly healthy and you may think that you’re not — that you’re being forced to subsidize somebody else, but this is not a market in which you can say that there is a immutable class of healthy people who are being forced to subsidize the unhealthy. This is a market in which you may be healthy one day and you may be a very unhealthy participant in that market the next day and that is a fundamental difference, and you’re not going to know in which

CHIEF JUSTICE ROBERTS: I think you’re posing the question I was posing, which is that doesn’t apply to a lot of what you’re requiring people to purchase: Pediatric services, maternity services. You cannot say that everybody is going to participate in the substance use market and yet you require people to purchase insurance coverage for that.

GENERAL VERRILLI: Congress has got –Congress is enacting economic regulation here. It has latitude to define essential, the attributes of essential coverage. That doesn’t — that doesn’t seem to me to implicate the question of whether Congress is engaging in economic regulation and solving an economic problem here, and that is what Congress is doing.

He seems to be stuttering here. He seems dumbfounded that the Court would scrutinize an economic regulation.

SG is talking more about cost-shifting. His response to Scalia seems wrong:

Telephone rates in this country for a century were set via the exercise of the commerce power in a way in which some people paid rates that were much higher than their costs in order to subsidize -JUSTICE
SCALIA: Only if you make phone calls.
GENERAL VERRILLI: Well, right. But — but everybody — to live in the modern world, everybody needs a telephone. And the — the same thing with respect to the — you know, the dairy price supports that — that the Court upheld in Wrightwood Dairy and Rock Royal. You can look at those as disadvantageous contracts, as forced transfers, that — you know, Isuppose it’s theoretically true that you could raise your kids without milk, but the reality is you’ve got to go to the store and buy milk. And the commerce power -as a result of the exercise of the commerce power, you’re subsidizing somebody else

Lactose intolerant parents unite!

So Kagan interrupts SG here, almost bailing him out.

Woo Jersey and Kentucky!

SCALIA: — I don’t know why you think that they’re never going to buy it.
GENERAL VERRILLI: That’s the problem, Justice Scalia. That’s — and that’s exactly the experience that the States had that made the imposition of guaranteed-issue and community rating not only be ineffectual but be highly counterproductive. Rates, for example, in New Jersey doubled or tripled, went from 180,000 people covered in this market down to 80,000 people covered in this market.
In Kentucky, virtually every insurer left the market. And the reason for that is because when people have that guarantee of — that they can get insurance, they’re going to make that calculation that they won’t get it until they’re sick and they need it, and so the pool of people in the insurance market gets smaller and smaller. The rates you have to charge to cover them get higher and higher. It helps fewer and fewer — insurance covers fewer and fewer people until the system ends.
This is not a situation in which you’re conscripting — you’re forcing insurance companies to cover very large numbers of unhealthy people

Nino proposes an alternative legislative judgment—Scalia sees the law as a “self-created” problem.

SCALIA: You could solve that problem by simply not requiring the insurance company to sell it to somebody who has a — a condition that is going to require medical treatment, or at least not -not require them to sell it to him at — at a rate that he sells it to healthy people.
But you don’t want to do that.
GENERAL VERRILLI: But that seems to me to say, Justice Scalia, that Congress — that’s the problem here. And that seems to be -JUSTICE
SCALIA: That seems to me a self-created problem.
GENERAL VERRILLI: Congress cannot solve the problem through standard economic regulation, and that — and — and I do not think that can be the premise of our understanding of the Commerce Clause -JUSTICE
VERRILLI: — this is an economic problem –

JUSTICE SCALIA: — whatever problems Congress’s economic regulation produces, whatever they are, I think Congress can do something to counteract them. Here, requiring somebody to enter — to enter the insurance market.

SG sounds really, really frustrated here:

GENERAL VERRILLI: This is not a — it’s not a problem of Congress’s creation. The problem is that you have 40 million people who cannot get affordable insurance through the means that the rest of us get affordable insurance. Congress, after a long study and careful deliberation, and viewing the experiences of the States and the way they tried to handle this problem, adopted a package of reforms. Guaranteed-issue and community rating, and — and subsidies and the minimum coverage provision are a package of reforms that solve that problem.
I don’t — I think it’s highly artificial to view this as a problem of Congress’s own creation.

It was also passed over the most razor thin margins on an earlier version of the law that no one read and was never meant to be voted on because Ted Kennedy passed away. But, deference anyway.

CJ asks about the limitation of their argument, with some more talk about Lochner.

CHIEF JUSTICE ROBERTS: Well, now why is that? Congress could — once you — once you establish that you have a market for health care, I would suppose Congress’s power under the Commerce Clause meant they had a broad scope in terms of how they regulate that market. And it would be — it would be going back to Lochner if we were put in the position of saying no, you can use your commerce power to regulate insurance, but you can’t use your commerce power to regulate this market in other ways. I think that would be a very significant intrusion by the Court into Congress’s power.

So I don’t see how we can accept your -it’s good for you in this case to say oh, it’s just insurance. But once we say that there is a market and Congress can require people to participate in it, as some would say — or as you would say, that people are already participating in it — it seems to me that we can’t say there are limitations on what Congress can do under its commerce power, just like in any other area, all — given significant deference that we accord to Congress in this area, all bets are off, and you could regulate that market in any rational way.

Isn’t that the essence of the rational basis test?

CHIEF JUSTICE ROBERTS: And you’re worried — that’s the area that Congress has chosen to regulate. There’s this health care market. Everybody’s in it. So we can regulate it, and we’re going to look at a particular serious problem, which is how people pay for it. But next year, they can decide everybody’s in this market, we’re going to look at a different problem now, and this is how we’re going to regulate it. And we can compel people to do things — purchase insurance, in this case. Something else in the next case, because you’ve — we’ve accepted the argument that this is a market in which everybody participates.

SG tries to move onto his tax argument, but Scalia goes back to CJ’s question.

JUSTICE SCALIA: Can — can I tell you what the something else is so — while you’re answering it? The something else is everybody has to exercise, because there’s no doubt that lack of exercise cause — causes illness, and that causes health care costs to go up.
So the Federal government says everybody has to — to join a — an exercise club. That’s — that’s the something else.

Boy that slope is slippery!

GENERAL VERRILLI: No. The — the position we’re taking here would not justify that rule, Justice Scalia, because health club membership is not a means of payment for — for consumption of anything in — in a market.
CHIEF JUSTICE ROBERTS: Right. Right. That’s — that’s exactly right, but it doesn’t seem responsive to my concern that there’s no reason — once we say this is within Congress’s commerce power, there’s no reason other than our own arbitrary judgment to say all they can regulate is the method of payment. They can regulate other things that affect this now-conceded interstate market in health care in which everybody participates.

The Chief called SG out for repeating himself:

JUSTICE ROBERTS: — unless I’m missing something, I think you’re just repeating the

idea that this is the regulation of the method of payment. And I understand that argument. And it may be — it may be a good one. But what I’m concerned about is, once we accept the principle that everybody is in this market, I don’t see why Congress’s power is limited to regulating the method of payment and doesn’t include as it does in any other area.
What other area have we said Congress can regulate this market but only with respect to prices, but only with respect to means of travel? No. Once you’re — once you’re in the interstate commerce and can regulate it, pretty much all bets are off.

GENERAL VERRILLI: But we agree Congress can regulate this market. ERISA regulates this market. HIPAA regulates this market. The — the market is regulated at the Federal level in very significant ways already. So I don’t think that’s the question, Mr. Chief Justice. The question is, is there a limit to the authority that we’re advocating here under the commerce power, and the answer is yes, because we are not advocating for a power that would allow Congress to compel purchases

Not advocating today. But what about tomorrow? And Advocates don’t make laws. Congress does. Advocates just defend them. SG had no good answer to this question. Or this one from Alito:

JUSTICE ALITO: Could you just — before you move on, could you express your limiting principle as succinctly as you possibly can? Congress can force people to purchase a product where the failure to purchase the product has a substantial effect on interstate commerce — if what? If this is part of a larger regulatory scheme? Was that it? Was there anything more?

Seriously. This is a question he should have been able to answer in 5 seconds. The fact that he can’t says something. SG gave a long answer that was far from succinct, and far from limiting.

Sotomayor (thankfully) changed the topic to the taxing power.

Nino chides Barry:

JUSTICE SCALIA: The President said it wasn’t a tax, didn’t he?
GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were — and I think it’s clear that — that the — the — they were exercising the tax power as well as -JUSTICE
SCALIA: You’re making two arguments. Number one, it’s a tax; and number two, even if it isn’t a tax, it’s within the taxing power. I’m just addressing the first.
GENERAL VERRILLI: If the President said -JUSTICE
SCALIA: Is it a tax or not a tax? The President didn’t think it was.
GENERAL VERRILLI: The President said it

wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance.
I don’t think it’s fair to infer from that anything about whether that is an exercise of the tax power or not.

Kagan, repeating a point she made yesterday, noted that Congress determined to not call it a tax:

KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you’re suggesting we should just look to the practical operation. We shouldn’t look at labels. And that seems right, except that here we have a case in which Congress determinedly said this is not a tax, and the question is why should that be irrelevant?
GENERAL VERRILLI: I don’t think that that’s a fair characterization of the actions of Congress here, Justice Kagan. On the — December 23rd, a point of constitutional order was called to, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to39 on that proposition.
The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don’t think this is a situation where you can say that

Congress was avoiding any mention of the tax power.
It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn’t done so, it seems to me that it’s — not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

What obligation? CJ calls BS on SG:

CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is — in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say -CHIEF
JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.

Sotomayor asks further about a limiting principle–talking over Sotomayor:

And Nino asks about commerce clause blah blah blah:

JUSTICE SCALIA: You’re saying that all the discussion we had earlier about how this is one big

uniform scheme and the Commerce Clause blah, blah, blah, it really doesn’t matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said everybody who doesn’t buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It — it used its powers together to solve the problem of the market not -JUSTICE
SCALIA: Yes, but you didn’t need that.
GENERAL VERRILLI — providing for the -JUSTICE
SCALIA: You didn’t need that. If it’s a tax, it’s only — raising money is enough.
GENERAL VERRILLI: It’s justifiable under its tax power.
JUSTICE SCALIA: Extraordinary.

Nino said “Extraordinary” under his breath. SG was off his A-Game.


After a brief pause, Clement is up!

CHIEF JUSTICE ROBERTS: Thank you, gentlemen. We’ll take a pause for a minute or so, Mr. Clement.
CHIEF JUSTICE ROBERTS: Why don’t we get started again.
Mr. Clement.

Clement was smooth in his opening:

MR. CLEMENT: Mr. Chief Justice and may it please the Court. The mandate represents an unprecedented effort by Congress to compel individuals to enter commerce in order to better regulate commerce.
The Commerce Clause gives Congress the power to regulate existing commerce. It does not give Congress the far greater power to compel people to enter commerce to create commerce essentially in the first place.
Now, Congress when it passed the statute did make findings about why it thought it could regulate the commerce here, and it justified the mandate as a regulation of the economic decision to forego the purchase of health insurance. That is a theory without any limiting principle.

Sotomayor asks about the fact that one cannot buy insurance at the point of consumption:

JUSTICE SOTOMAYOR: All right. So what do you do with the impossibility of buying insurance at the point of consumption. Virtually, you force insurance companies to sell it to you?

MR. CLEMENT: Well, Justice, I think there is two points to make on that. One is, a lot of the discussion this morning so far has proceeded on the assumption that the only thing that is at issue here is emergency room visits, and the only thing that’s being imposed is catastrophic care coverage; but, as the Chief Justice indicated earlier, a lot of the insurance that’s being covered is for ordinary preventive care, ordinary office visits, and those are the kinds of things that one can predict.

So there is a big part of the market that’s regulated here that wouldn’t pose the problem that you’re suggesting; but, even as to emergency room visits, it certainly would be possible to regulate at that point. You could simply say, through some sort of mandate on the insurance companies, you have to provide people that come in — this will be a high-risk pool, and maybe you will have to share it amongst yourself or something, but people simply have to sign up at that point, and that would be regulating at the point of sale.

Kagan asked more about timing, and whether Congress should receive deference about its choice:

JUSTICE KAGAN: Well, Mr. Clement, now it seems as though you’re just talking about a matter of timing; that Congress can regulate the transaction, and the question is when does it make best sense to regulate that transaction?
And Congress surely has within its authority to decide, rather than at the point of sale, given an insurance-based mechanism, it makes sense to regulate it earlier. It’s just a matter of timing.
MR. CLEMENT: Well, Justice Kagan, we don’t think it’s a matter of timing alone, and we think it has very substantive effects. Because if Congress tried to regulate at the point of sale, the one group that it wouldn’t capture at all are the people who don’t want to purchase health insurance and also have no plans of using health care services in the near term. And Congress very much wanted to capture those people. I mean, those people are essentially the golden geese that pay for the entire lowering of the premium.

AMK asks about actuarial realities:

JUSTICE KENNEDY: Was the government’s argument this — and maybe I won’t state it accurately — it is true that the noninsured young adult is, in fact, an actuarial reality insofar as our allocation of health services, insofar as the way health  insurance companies figure risks?

That person who is sitting at home in his or her living room doing nothing is an actuarial reality that can and must be measured for health service purposes; is that their argument?

RBG asks about Social Security, harkening back to the 1930s:

JUSTICE GINSBURG: Mr. Clement, doesn’t that work — that work the way Social Security does?
Let me put it this way. Congress, in the ’30s, saw a real problem of people needing to have old age and survivor’s insurance. And yes, they did it through a tax, but they said everybody has got to be in it because if we don’t have the healthy in it, there’s not going to be the money to pay for the ones who become old or disabled or widowed. So they required everyone to contribute.
It was a big fuss about that in the beginning because a lot of people said — maybe some people still do today — I could do much better if the government left me alone. I’d go into the private market, I’d buy an annuity, I’d make a great investment, and they’re forcing me to paying for this Social Security that I don’t want; but, that’s constitutional.
So if Congress could see this as a problem when we need to have a group that will subsidize the ones who are going to get the benefits, it seems to me you are saying the only way that could be done is if the government does it itself; it can’t involve the private market, it can’t involve the private insurers. If it wants to do this, Social Security is its model. The government has to do — has to be government takeover. We can’t have the insurance industry in it. Is that your position?

Yes, this is one of the ironies. Striking down the mandate may one day lead to single-payer health care (I think we’d get there anyway).

After some questions about Sotomayor about the taxing power, Clement turns to what the framers thought!

And the one thing I think the framers would have clearly identified as a direct tax is a tax on not having something.
I mean, the framing generation was divided over whether a tax on carriages was a direct tax or not. Hamilton thought that was a indirect tax; Madison thought it was a direct tax. I have little doubt that both of them would have agreed that a tax on not having a carriage would have clearly been a direct tax. I also think they would have thought it clearly wasn’t a valid regulation of the market in carriages.

I’m glad Clement checked with Zombie Madison and Hamilton.”

Then Breyer takes us down the path of not deciding how good the bill is (Lochner):

BREYER: Let me ask — can I go back for a step, because I don’t want to get into a discussion of whether this is a good bill or not. Some people think it’s going to save a lot of money. Some people think it won’t.
So I’m focusing just on the Commerce Clause; not on the Due Process Clause, the Commerce Clause. And I look back into history, and I think if we look back into history we see sometimes Congress can create commerce out of nothing. That’s the national bank, which was created out of nothing to create other commerce out of nothing.
I look back into history, and I see it seems pretty clear that if there are substantial effects on interstate commerce, Congress can act.
And I look at the person who’s growing marijuana in her house, or I look at the farmer who is growing the wheat for home consumption. This seems to have more substantial effects.
Is this commerce? Well, it seems to me more

commerce than marijuana. I mean, is it, in fact, a regulation? Well, why not? If creating a bank is, why isn’t this?
And then you say, ah, but one thing here out of all those things is different, and that is you’re making somebody do something.
I say, hey, can’t Congress make people drive faster than 45 — 40 miles an hour on a road? Didn’t they make that man growing his own wheat go into the market and buy other wheat for his — for his cows? Didn’t they make Mrs. — if she married somebody who had marijuana in her basement, wouldn’t she have to go and get rid of it? Affirmative action?
I mean, where does this distinction come from? It sounds like sometimes you can, and sometimes you can’t.
So what is argued here is there is a large group of — what about a person that we discover that there are — a disease is sweeping the United States, and 40 million people are susceptible, of whom 10 million will die; can’t the Federal Government say all 40 million get inoculation?
So here, we have a group of 40 million, and 57 percent of those people visit emergency care or other care, which we are paying for. And 22 percent of those

pay more than $100,000 for that. And Congress says they are in the midst of this big thing. We just want to rationalize this system they are already in.
So, there, you got the whole argument, and I would like you to tell me -JUSTICE
SCALIA: We’ll get to those questions in inverse order.

[I heard lots of LAUGHTER]
JUSTICE BREYER: Well, no, it’s one question. It’s looking back at that — looking back at that history.
The thing I can see that you say to some people, go buy; why does that make a difference in terms of the Commerce Clause?.

Commerce all the way down.

Clement says that McCullough was not a Commerce clause case.

What, of course, the Court didn’t say, and I think the Court would have had a very different reaction to, is, you know, we are not just going to have the

bank, because that wouldn’t be necessary and proper, we are going to force the citizenry to put all of their money in the bank, because, if we do that, then we know the Bank of the United States will be secure.
I think the framers would have identified the difference between those two scenarios, and I don’t think that the great Chief Justice would have said that forcing people to put their deposits in the Bank of the United States was necessary and proper.

Now, if you look through all the cases you mentioned, I do not think you will find a case like this. And I think it’s telling that you won’t. I mean, the regulation of the wheat market in Wickard against Filburn, all this effort to address the supply side and what producers could do, what Congress was trying to do was support the price of wheat. It would have been much more efficient to just make everybody in America buy 10 loaves of bread. That would have had a much more direct effect on the price of wheat in the prevailing market.
But we didn’t do that. We didn’t say when we had problems in the automobile industry that we are not just going to give you incentives, not just cash for clunkers, we are going to actually have ever everybody over 100,000 has to buy a new car

Clement is so, so, so good. It is scary how effectively he bullied Breyer.

JGR asks about the fact that everyone is in the market:

JUSTICE ROBERTS: Well, Mr. Clement,

the key to the government’s argument to the contrary is that everybody is in this market. It’s all right to regulate Wickard — again, in Wickard against Filburn, because that’s a particular market in which the farmer had been participating.
Everybody is in this market, so that makes it very different than the market for cars or the other hypotheticals that you came up with, and all they’re regulating is how you pay for it.
MR. CLEMENT: Well, with respect, Mr. Chief Justice, I suppose the first thing you have to say is what market are we talking about? Because the government — this statute undeniably operates in the health insurance market. And the government can’t say that everybody is in that market. The whole problem is that everybody is not in that market, and they want to make everybody get into that market.

Sotomayor asks if the Feds could impose car insurance requirements that somehow goes to Lochner.

SOTOMAYOR: But we don’t in car insurance, meaning we tell people, buy car — not we, the states do, although you’re going to — I’ll ask you the question, do you think that if some states decided not to impose an insurance requirement, that the Federal Government would be without power to legislate and require every individual to buy car insurance?
MR. CLEMENT: Well, Justice Sotomayor, let me say this, which is to say — you’re right in the first point to say that it’s the states that do it, which makes it different right there. But it’s also -JUSTICE
SOTOMAYOR: Well, that goes back to the substantive due process question. Is this a Lochner era argument that only the states can do this, even though it affects commerce? Cars indisputably affect commerce. So are you arguing that because the states have done it all along, the Federal Government is no longer permitted to legislate in this area?

And what a great example for the New Yorker!

MR. CLEMENT: But, Justice Sotomayor, what I think is different is there is lots of people in Manhattan, for example, that don’t have car insurance because they don’t have cars. And so they have the option of withdrawing from that market. It’s not a direct imposition from the government.
So even the car market is difference from this market, where there is no way to get outside of the regulatory web. And that’s, I think, one of the real problems with this because, I mean, we take as a given –

Sotomayor looks to the heavens for an example:

SOTOMAYOR: But you’re — but the given is that virtually everyone, absent some intervention from above, meaning that someone’s life will be cut short in a fatal way, virtually everyone will use health care.
MR. CLEMENT: At some point, that’s right, but all sorts of people will not, say, use health care in the next year, which is the relevant period for the insurance.

That’s  a good point. Premiums are limited to one year, not indefinitely.

Then Breyer drones on about knowing better than experts:

JUSTICE BREYER: But do you think you can, better than the actuaries or better than the members of Congress who worked on it, look at the 40 million people who are not insured and say which ones next year will or will not use, say, emergency care?
Can you do that any better than if we knew that 40 million people were suffering, about to suffer a contagious disease, and only 10 million would get sick . . .

The question that’s a proper question for this Court, though, is whether or not, for the first time ever in our history, Congress also has the power to compel people into commerce, because, it turns out, that would be a very efficient things for purposes of Congress’ optimal regulation of that market

Kagan alludes to the freedom of conscience issue of people who do not want insurance for religious reasons:

JUSTICE KAGAN: But, Mr. Clement, this goes back to the Chief Justice’s question. But, of course, the theory behind, not just the government’s case, but the theory behind this law is that people are in this market right now, and they are in this market because people do get sick, and because when people get sick, we provide them with care without making them pay.
And it that would be different, you know, if you were up here saying, I represent a class of Christian scientists. Then you might be able to say, look, you know, why are they bothering me. But absent that, you’re in this market. You’re an economic actor.

Clement argues that if Congress took a different path, “we wouldn’t be here.” I would respectfully disagree. They’d just have to cook up another argument:

MR. CLEMENT: And with respect to the health insurance market that’s designed to have payment in the health care market, everybody is not in the market. And that’s the premise of the statute, and that’s the problem Congress is trying to solve.
And if it tried to solve it through incentives, we wouldn’t be here; but, it’s trying to solve it in a way that nobody has ever tried to solve an economic problem before, which is saying, you know, it would be so much more efficient if you were just in this market

AMK asked about being in the market by creating risk:

MR. CLEMENT: Well, Justice Kennedy, I don’t think that’s right, certainly in any way that distinguishes this from any other context. When I’m sitting in my house deciding I’m not to buy a car, I am causing the labor market in Detroit to go south. I am causing maybe somebody to lose their job, and for everybody to have to pay for it under welfare. So the cost shifting that the government tries to uniquely to associate with this market, it is everywhere.

Breyer was getting really, really pedantic.

JUSTICE BREYER: Of course we do know that there are a few people, more in New York City than there are in Wyoming, who never will buy a car. But we also know here, and we don’t like to admit it, that because we are human beings we all suffer from the risk of getting sick. And we also all know that we’ll get seriously sick. And we also know that we can’t predict when. And we also know that when we do, there will be our fellow taxpayers through the Federal Government who will pay for this. If we do not buy insurance, we will pay nothing. And that happens with a large number of people in this group of 40 million, none of whom can be picked out in advance.
Now, that’s quite different from a car situation, and it’s different in only this respect. It shows there is a national problem, and it shows there is a national problem that involves money, cost insurance. So if Congress could do this, should there be a disease that strikes the United States and they want every one inoculated even though ten million will be hurt, it’s hard for me to decide why that isn’t interstate commerce, even more so where we know it affects everybody.

Some more originalist-ish arguments from Clement:

In Federalist 45, Madison says the commerce power. That’s a new power, but it’s not one anyone has any apprehension about.
The reason they didn’t have any apprehension about it is because it’s a power that only operated once people were already in commerce. You see that from the text of the clause. The first kind of commerce Congress gets to regulate is commerce with foreign nations. Did anybody think the fledgling Republic had the power to compel some other nation into commerce with us? Of course not. And in the same way, I think if the framers had understood the commerce power to include the power to compel people to engage in commerce

Whenever Kagan asked about aggregate effects, Clement turns to limiting principle:

KAGAN: Well, once again though, who’s in commerce and what are they in commerce?
If the effect of all these uninsured people is to raise everybody’s premiums, not just when they get sick, if they get sick, but right now in the aggregate, and Wickard and Raich tell us we should look at the aggregate, and the aggregate of all these uninsured

people are increasing the normal family premium, Congress says, by a thousand dollars a year. Those people are in commerce. They are making decisions that are affecting the price that everybody pays for this service.
MR. CLEMENT: Justice Kagan, again, with all due respect, I don’t think that’s a limiting principle. My unwillingness to buy an electric car is forcing up the price of an electric car. If only more people demanded an electric car there would be economies of scale, and the price would go down.

Kagan wasn’t so quick to buy it. Clement turned to the fact that the statute covers more than emergency care:

If all we were concerned about is the cost sharing that took place because of uncompensated care in emergency rooms, presumably we have before us a statute that only addressed emergency care and catastrophic insurance coverage. But it covers everything, soup to nuts, and all sorts of other things.
And that gets at the idea that there is two kinds of cost shifting that are going on here. One is the concern about emergency care and that somehow somebody who gets sick is going to shift costs back to other policy areas — holders. But there is a much bigger cost shifting going on here, and that’s the cost shifting that goes on when you force healthy people into an insurance market precisely because they are healthy, precisely because they are not likely to go to the emergency room, precisely because they are not likely to use the insurance they are forced to buy in the health care insurance. That creates a huge windfall. It lowers the price of premiums. And again, this is not just some lawyer up here telling you that’s what it does and trying to second-guess the congressional economic decisions. This is Congress’s findings, findings I on page 43 A of the appendix to the government’s –

Breyer is not a fan of broccoli:

JUSTICE BREYER: All that sounds like you’re
debating the merits of the bill. You ask really for limiting principles so we don’t get into a matter that I think has nothing to do with this case: broccoli, okay?
And the limiting principles, you’ve heard three. First, the Solicitor General came up with a couple joined, very narrow ones. You’ve seen in Lopez this Court say that we cannot, Congress cannot get into purely local affairs, particularly where they are noncommercial. And, of course, the greatest limiting principle of all, which not too many accept, so I’m not going to emphasize that, is the limiting principle derived from the fact that members of Congress are elected from States and that 95 percent of the law of the United States is State law. That is a principle though enforced by the legislature.
The other two are principles, one written into Lopez and one you just heard. It seems to me all of those eliminate the broccoli possibility, and none of them eliminates the possibility that we are trying to take the 40 million people who do have the medical cost, who do affect interstate commerce and provide a system that you may like or not like. That’s where we are in limiting principles

Ha! Clement turned Garcia into a verb!

MR. CLEMENT: Well, Justice Breyer, let me take them in turn. I would encourage this Court not to Garcia-ize the Commerce Clause and just simply say it’s up to Congress to police the Commerce Clause. So I don’t think that is a limiting principle.


MR. CLEMENT: I’d be delighted to, which is — I mean, I — you are absolutely right. Once you’re in the commerce power, there is not — this Court is not going to police that subject maybe to the Lopez limit. And that’s exactly why I think it’s very important for this Court to think seriously about taking an unprecedented step of saying that the commerce power not only includes the power to regulate, prescribe the rule by which commerce is governed, the rule of Gibbons v. Ogden. But to go further and say it’s not just prescribing the rule for commerce that exists but is the power to compel people to enter into commerce in the first place.

And at the end, Clement just shooes away Sotomayor:

SOTOMAYOR: Would you tell me, do you think the States could pass this mandate.
MR. CLEMENT: I represent 26 States. I do think the States could pass this mandate, but I -JUSTICE
SOTOMAYOR: Is there any other area of commerce, business, where we have held that there is a concurrent power between the State and the Federal Government to protect the welfare of commerce?
MR. CLEMENT: Well, Justice Sotomayor, I have to resist your premise, because I didn’t answer yes, the States can do it because it would be a valid regulation of intrastate commerce. I said yes, the States can do it because they have a police power, and that is the fundamental difference between the States on the one hand and the limited, enumerated Federal Government on the other.




Carvin opens up with policy argument:

I’d like to begin with the Solicitor General’s main premise, which is that they can compel the purchase of health insurance in order to promote commerce in the health market because it will reduce uncompensated care. If you accept that argument, you have to fundamentally alter the text of the Constitution and give Congress plenary power.
It simply doesn’t matter whether or not this regulation will promote health care commerce by reducing uncompensated care; all that matters is whether the activity actually being regulated by the act negatively affects Congress or negatively affects commerce regulation, so that it’s within the commerce power. If you agree with us that this is — exceeds commerce power, the law doesn’t somehow become redeemed because it has beneficial policy effects in the health care market.
In other words, Congress does not have the power to promote commerce. Congress has — Congress has the power to regulate commerce. And if the power exceeds their permissible regulatory authority, then the law is invalid.

The Chief asks about promoting commerce v. regulating commerce:


regulation includes the power to promote. Since the New Deal we’ve said that regulation in — there is a market agricultural products; Congress has the power to subsidize, to limit production, all sorts of things.
MR. CARVIN: Absolutely, Chief Justice, and that’s the distinction I’m trying to draw. When they are acting within their enumerated power then obviously they are promoting commerce, but the Solicitor General wants to turn it into a different power. He wants to say we have the power to promote commerce, to regulate anything to promote commerce, and if they have the power to promote commerce then they have the power to regulate everything, right? Because

OK, Carvin’s entire argument is about slippery slopes.

So the question is whether or not you can regulate activity because it has a statistical connection to an activity that harms Congress. And my basic point to you is this: the Constitution only gives Congress the power to regulate things that negatively affect commerce or commerce regulation. It doesn’t give them the power to regulate things that are statistically connected to things that negatively affect the commerce MR. CARVIN: I was just going to say, because if they have that power, then they obviously have the power to regulate everything because everything in the aggregate is statistically connected to something that negatively affects commerce, and every compelled purchase promotes commerce.

Breyer asks him about the innoculation question:

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against -JUSTICE
BREYER: Is your answer to that yes or no?

MR. CARVIN: Oh, I’m sorry; my answer is no,
they couldn’t do it, because Morrison -JUSTICE BREYER: No, they could not do it. MR. CARVIN: Yes. JUSTICE BREYER: They cannot require people
even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there’s — okay, fine. Go ahead.

Breyer gets all snarky that he was in dissent in Morrison:

MR. CARVIN: May I just please explain why? JUSTICE BREYER: Yes. MR. CARVIN: Violence against women
obviously creates the same negative impression on fellow citizens as this communicable disease, but the –and it has huge effects on the health care of our country. Congress found that it increased health care costs by -JUSTICE
BREYER: I agree with you that -MR. CARVIN: Well, but -JUSTICE BREYER: — that it had huge
negative effects but the majority thought that was a
local matter. JUSTICE SCALIA: I think that’s his point. (Laughter.)

Quote of the day out of context:

MR. CARVIN: I — I don’t know why having a
disease is any more local than — that beating up a woman.

Breyer asks about all humans involuntarily entering the health care market:

JUSTICE BREYER: Now we — now you’ve changed the ground of argument, which I accept as — as totally legitimate. And then the question is when you are born, and you don’t have insurance, and you will in fact get sick, and you will in fact impose costs, have you perhaps involuntarily — perhaps simply because you are a human being — entered this particular market, which is a market for health care?
MR. CARVIN: If being born is entering the market, then I can’t think of a more plenary power Congress can have, because that literally means they can regulate every human activity from cradle to grave. thought that’s what distinguished the plenary police power from the very limited commerce power.
I don’t disagree that giving the Congress plenary power to mandate property transfers from A to B would be a very efficient way of helping B and of accomplishing Congress’s objectives. But the framers

That’s Calder v. Bull.

Breyer’s hypo was so long, that everyone forgot the previous question!

BREYER: I see the point. You can go back to, go back to Justice Kagan. Don’t forget her question.
JUSTICE KAGAN: I’ve forgotten my question.
MR. CARVIN: I — I was facing the same

dilemma, Justice Kagan.
JUSTICE GINSBURG: Let me — let me ask a question I asked Mr. Clement. It just seems -JUSTICE
KAGAN: See what it means to be the junior justice?


RBG goes back to social security:

JUSTICE GINSBURG: It just seems very strange to me that there’s no question we can have a Social Security system besides all the people who say: I’m being forced to pay for something I don’t want. And this it seems to me, to try to get care for the ones who need it by having everyone in the pool, but is also trying to preserve a role for the private sector, for the private insurers. There’s something very odd about that, that the government can take over the whole thing and we all say, oh, yes, that’s fine, but if the government wants to get — to preserve private insurers, it can’t do that.

I can’t stop laughing!

MR. CARVIN: Well I don’t think the test of a law’s constitutionality is whether it more adheres to the libertarian principles of the Cato Institute or the statist principles of someone else. I think the test of a law’s constitutionality is not those policy questions; it’s whether or not the law is regulating things that negatively affect commerce or don’t.

And since obviously the failure to purchase an item doesn’t create the kind of effects on supply and demand that the market participants in Wickard and Raich did and doesn’t in any way interfere with regulation of the insurance companies, I don’t think it can pass the basic

Kagan asks about the (lack of) constitutional faces:

JUSTICE KAGAN: That’s why I suggested, Mr. Carvin, that it might be different if you were raising an as-applied challenge and presenting a class of people whom you could say clearly would not be in the health care market. But you’re raising a facial challenge and we can’t really know which, which of the many, many, people that this law addresses in fact will not participate in the health care market and in fact will not impose costs on all the rest of us.
So the question is can Congress respond to those facts, that we have no crystal ball, that we can’t tell who is and isn’t going to be in the health insurance market, and say most of these people will be and most of these people will thereby impose costs on the rest of us and that’s a problem that we can deal with on a class-wide basis?

I think bans on unpasteurized goods are bogus:

MR. CARVIN: You are not forced to buy a product you don’t want. And I agree with you that since the government regulates all markets there is no limiting principle on their compelled purchase. When they put these environmental controls on the –

Breyer calls out Judge Sutton. Carvin is not impressed:

BREYER: What about — the simplest counter-example for me to suggest is you’ve undoubtedly read Judge Sutton’s concurring opinion. He has about two pages, it seemed to me, of examples where everyone accepts the facts that under these kinds of regulations the government can compel people to buy things they don’t otherwise want to buy.
For example, he gives, even in that farm case, the farmer who was being forced to go out and buy grain to feed to his animals because he couldn’t raise it at home. You know and he goes through one example after another. So what — what is your response to that, which you’ve read?
MR. CARVIN: Judge Sutton is wrong in each and every example. {Laughter] There was no — there was no compulsion in Raich for him to buy wheat. He could have gotten wheat substitutes or he could have not sold wheat, which is actually what he was doing. There is a huge difference between conditioning regulation, i.e., conditioning access to the health care market and saying you must buy a product, and forcing you to buy a product. And that, that — I’m sorry.

Soto shows some empathy:

SOTOMAYOR: Do you think that there’s — what percentage of the American people who took their son or daughter to an emergency room and that child was turned away because the parent didn’t have insurance — do you think there’s a large percentage of

the American population who would stand for the death of
that child -MR.
CARVIN: One of the most -JUSTICE
SOTOMAYOR: They had an allergic reaction and a simple shot would have saved the child?
MR. CARVIN: One of the more pernicious, misleading impressions that the government has made is that we are somehow advocating that people be — could get thrown out of emergency rooms, or that this alternative that they’ve hypothesized is going to be enforced by throwing people out of emergency rooms. This alternative; i.e. conditioned access to health care on buying health insurance, is enforced in precisely the same way that the Act does. You either buy health insurance or you pay a penalty of $695. You don’t have doctors throwing people out on the street. And — and so the only

Sotomayor asks an interesting line of questions about the difference between making someone pay a penalty for not buying health insurance v. giving a tax credit for buying health insurance. This was the argument in the Arizona Tax Credit case last term:

SOTOMAYOR: So how is this different than this Act which says if a taxpayer fails to meet the requirement of having minimum coverage, then they are responsible for paying the shared responsibility payment?

MR. CARVIN: The difference is that the taxpayer is not given a choice. It’s the difference between banning cigarettes and saying I’m going to enforce that legal ban through a $5 a pack penalty, and saying look, if you want to sell cigarettes, fine. I’m going to charge you a tax of $5 a pack. And that’s

SOTOMAYOR: I think — I think that’s what’s happening, isn’t it?

SOTOMAYOR: We’re paying — I thought that everybody was paying, what is it, $10 a pack now? I don’t even know the price. It’s pretty high.
MR. CARVIN: Right. And everyone understands -JUSTICE
SOTOMAYOR: I think everybody recognizes that it’s all taxation for the purposes of dissuading you to buy it.

AMK has a concern:

JUSTICE KENNEDY: And the government tells us that’s because the insurance market is unique. And in the next case, it’ll say the next market is unique. But I think it is true that if most questions in life are matters of degree, in the insurance and health care world, both markets — stipulate two markets — the young person who is uninsured is uniquely proximately very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries.
That’s my concern in the case.

Finally, Kagan gets to the activity/inactivity distinction:

JUSTICE KAGAN: Mr. Carvin, a large part of
this argument has concerned the question of whether certain kinds of people are active participants in a market or not active participants in a market. In your test, which is a test that focuses on this activity/inactivity distinction, would force one to confront that problem all the time.
Now, if you look over the history of the Commerce Clause, what you see is that there were sort of unhappy periods when the Court used tests like this -direct versus indirect, commerce versus manufacturing. I think most people would say that those things didn’t really work. And the question is, why should this test, inactive versus active, work any better?
MR. CARVIN: The problem you identify is exactly the problem you would create if you bought the government’s bogus limiting principles. You’d have to draw distinctions between the insurance industry and the car industry and all of that.
We turn you to the Commerce Clause jurisprudence that bedeviled the Court before the 1930s, where they were drawing all these kinds of distinctions among industries; whereas our test is really very simple. Are you buying the product or is Congress compelling you to buy the product? I can’t think of a

brighter line.
And again, if Congress has the power to compel you to buy this product, then obviously, they have got the power to provide you — to compel you to buy any product, because any purchase is going to benefit commerce, and this Court is never going to second-guess Congress’s policy judgments on how important it is this product versus that product.

JUSTICE ALITO: Do you think they are drawing a line between commerce and everything else that is not commerce is drawing an artificial line, drawing a line between Congress and manufacturing?
MR. CARVIN: The words “inactivity” and “activity” are not in the Constitution. The words “commerce” and “noncommerce” are. And again, it’s a distinction that comes, Justice Kagan, directly from the text of the Constitution.
The Framers consciously gave Congress the ability to regulate commerce, because that’s not a particularly threatening activity that deprives you of individual freedom. If you were required, if you were authorized to require A to transfer property to B, you have, as the early cases put it, a monster in legislation which is against all reason in justice, because everyone intuitively understands that regulating people who voluntarily enter into contracts in setting changing conditions does not create the possibility of Congress compelling wealth transfers among the citizenry. And that is precisely why the Framers denied them the power to compel commerce, and precisely why they didn’t give them plenary power.

Calder v. Bull!


No questions. Just a closing argument. Oh, and a shout-out to Romneycare!

Think about how much it would cost to get the insurance when you are at the hospital or at the doctor. It would be — it would be unfathomably high, that will never work. Congress understood that. It chose a means that will work. The means that it saw work in the States and in the State of Massachusetts and that, and that it had every reason to think would work on a national basis.

Boy, I’m done. That was draining to follow. But amazing.

CHIEF JUSTICE ROBERTS: Thank you, General. Counsel, we’ll see you tomorrow.

Sane time, same place tomorrow.

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Mar 26, 2012

Instant Analysis: HHS v. Florida (Anti-Injunction Act)

The transcript is here, all 91 pages of it. Here we go. And the audio is here. Right now I’m listening to the MP3, reading the transcript, and listening to Randy Barnett yap away on a conference call.

And, it seems abundantly clear that none of the Justices–in conflict with the Fourth Circuit and Judge Kavanaugh–buy the AIA argument.

Really, if the facts were any different, this is as boring as hell.

Long-Court Appointed Amicus

This Scalia bit is funny:

JUSTICE SCALIA: Mr. Long, I don’t think you are going to come up with any, but I think your response is you could say that about any jurisdictional rule. If it’s not jurisdictional, what’s going to happen is you are going to have an intelligent federal court deciding  whether you are going to make an exception. And there will be no parade of horribles because all federal courts are intelligent.

So it seems to me it’s a question you can’t answer. It’s a question which asks “why should there be any jurisdictional rules?” And you think there should be.

Even Breyer wasn’t buying the tax argument:

JUSTICE BREYER: I just don’t want you to lose the second half of your argument. And we have spent all the time so far on jurisdiction. And I accept, pretty much, I’m probably leaning in your favor on jurisdiction, but where I see the problem is in the second part, because the second part says “restraining the assessment or collection of any tax.”
Now, here, Congress has nowhere used the word “tax.” What it says is penalty. Moreover, this is not in the Internal Revenue Code “but for purposes of collection.”
And so why is this a tax? And I know you point to certain sentences that talk about taxes within  the code –

MR. LONG: Right.

JUSTICE BREYER: — and this is not attached to a tax. It is attached to a health care requirement.
MR. LONG: Right.
JUSTICE BREYER: — so why does it fall within that word?

RBG flatly rejected the fact that this should be viewed as a revenue-raising model:

JUSTICE GINSBURG: Mr. Long, you — you said before — and I think you were quite right — that the Tax Injunction Act is modeled on the Anti-Injunction Act, and, under the Tax Injunction Act, what can’t be enjoined is an assessment for the purpose of raising revenue. The Tax Injunction Act does not apply to penalties that are designed to induce compliance with the law rather than to raise revenue. And this is not a revenue-raising measure, because, if it’s successful, they won’t — nobody will pay the penalty and there will be no revenue to raise.

Sotomayor wasn’t having it:

JUSTICE SOTOMAYOR: Absolutely. But even the section of the Code that you referred to previously, the one following 7421, the AIA, it does very clearly make a difference — 7422 — make a difference between tax and penalties. It’s very explicit.

Nor was Kagan:

JUSTICE KAGAN: Mr. Long, aren’t there places in this Act — fees and penalties — that were specifically put under the Anti-Injunction Act? There is one on health care plans, there is one on pharmaceutical manufacturers, where Congress specifically said the Anti-Injunction Act is triggered for those. It does not say that here. Wouldn’t that suggest that Congress meant for a different result to obtain?

JUSTICE KAGAN: But, Mr. Long, aren’t you trying to rewrite the statute in a way? The statute has two sections. One is the you have to have insurance section and the other is the sanction. The statute has two different sets of exceptions corresponding to those two different sections. You are trying to suggest that the statute says: Well, it’s your choice; either buy insurance or pay a — or pay a fee.
But that’s not the way the statute reads. And Congress, it must be supposed, you know, made a decision that that shouldn’t be the way the statute reads, that it should instead be a regulatory command and a penalty attached to that command.

I’ve heard Balkin and others spill so much ink about how this was a tax, blah blah. Not one justice buys it.

Oh how politics comes back to bite you in the ass. This was Judge Vinson’s point way back when. The President didn’t want to take the political heat of imposing a new tax so he called it a penalty. Now, boom. Congress makes their bed, and now they have to live with it.

Someone should buy Judge Kavanaugh a stiff drink today. Trying to avoid the issue in a manner that NOT ONE OF THE JUSTICES buy didn’t pan out.

SG Verrili

The SG opened up noting the importance of this case, already looking till tomorrow.

This case presents issues of great moment, and the Anti-Injunction Act does not bar the Court’s consideration of those issues. That is so even though the Anti-Injunction Act is a jurisdictional limit that serves what this Court described in Clintwood Elkhorn as an exceedingly strong interest in protecting the financial stability of the Federal Government, and even though the minimum coverage provision of the Affordable Care Act is an exercise of Congress’s taxing power as well as its commerce power.

Alito hit him right off the bat–today it’s not a tax, tomorrow it is!

 JUSTICE ALITO: General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.

Has the Court ever held that something that is a tax for purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?
GENERAL VERRILLI: No, Justice Alito, but the Court has held in a license tax cases that something can be a constitutional exercise of the taxing power whether or not it is called a tax. And that’s because the nature of the inquiry that we will conduct tomorrow is different from the nature of the inquiry that we will conduct today. Tomorrow the question is whether Congress has the authority under the taxing power to enact it and the form of words doesn’t have a dispositive effect on that analysis. Today we are construing statutory text where the precise choice of words does have a dispositive effect on the analysis.

In a funny interchange, the SG continued its insistence that the Court need not decide the jurisdiction issue:

JUSTICE GINSBURG: So — so you — you agree that we would not — if we agree with you about the correct interpretation of the statute, we need not decide the jurisdiction.
GENERAL VERRILLI: There would be no reason to decide the jurisdictional issue.
JUSTICE KENNEDY: Don’t you want to know the answer?

GENERAL VERRILLI: Justice Kennedy, I think we all want to know the answer to a lot of things in this case. But — but I do — I do think that the prudent course here is to construe the statute in the manner that we read it. . . .

GENERAL VERRILLI: That’s — that is not our assessment of the institutional interests of the United States, Justice Ginsburg. And we do think that the -the right way to go in this case is to read the statute as not applying to the minimum coverage provision of the Affordable Care Act.

Sotomayor asked further about collateral consequences of failing to buy health insurances:

SOTOMAYOR: Could we address, General, the question of whether there are any collateral consequences for the failure to buy — to not buy health insurance? Is the only consequence the payment of the penalty?
The private respondents argue that there are other collateral consequences such as for people on probation who are disobeying the law, if they don’t buy health insurance they would be disobeying the law and could be subject to having their supervised release revoked.
GENERAL VERRILLI: Yes. That is not a correct reading of the statute, Justice Sotomayor. The only consequence that ensues is the tax penalty. And the — we have made a representation, and it was a carefully made representation, in our brief that it is the interpretation of the agencies charged with interpreting this statute, the treasury department and the Department of Health and Human Services, that there is no other consequence apart from the tax penalty.

This seems like a cop-out, as the decision to prosecute would not come from Treasury or HHS.

And, the understatement of the day from Justice Sotomayor on inartful drafting:

JUSTICE SOTOMAYOR: Is your whole point that this was inartful drafting by Congress; that, to the extent that there is an exemption under the penalty, it’s an exemption from the legal obligation?

Kagan asks a similar question, about whether failing to buy health insurance is a federal offense:

JUSTICE KAGAN: The nature of the
representation you made, that the only consequence is the penalty, suppose a person does not purchase insurance, a person who is obligated to do so under the statute doesn’t do it, pays the penalty instead, and that person finds herself in a position where she is asked the question, have you ever violated any federal law, would that person have violated a federal law?
GENERAL VERRILLI: No. Our position is that person should give the answer “no.”
JUSTICE KAGAN: And that’s because -GENERAL
VERRILLI: That if they don’t pay the tax, they violated a federal law.
JUSTICE KAGAN: But as long as they pay the penalty -GENERAL
VERRILLI: If they pay the tax, then they are in compliance with the law.

LOL. Breyer chastised Verrilli for saying tax!

JUSTICE BREYER: Why do you keep saying tax?
GENERAL VERRILLI: If they pay the tax penalty, they’re in compliance with the law.
GENERAL VERRILLI: Thank you, Justice Breyer.
JUSTICE BREYER: The penalty.
GENERAL VERRILLI: Right. That’s right.

Alito cited a brief filed by 2 former IRS Commissioners who opposed the SG’s position:

ALITO: Two former — two former commissioners of the IRS have filed a brief saying that your interpretation is going to lead to a flood of litigation. Are they wrong on that?
GENERAL VERRILLI: Yes. We don’t — you know — we’ve — we’ve taken this position, after very careful consideration, and we’ve assessed the institutional interests of the United States and we think we are in the right place.

It seems the answer to every policy question is that they point to “institutional interests.”

Scalia was so, so quiet. No questions.

Katsas- NFIB

Justice Breyer–paraphrasing one of his judicial icons–notes that taxes are the life blood of government (“Taxes are the price we pay for civilization“:

JUSTICE BREYER: Basically it begs the difference — language is relevant, there are a lot of relevant things. But one thing that’s relevant in my mind is that taxes are, for better or for worse, the life’s blood of government.

Katsas explained clearly that if the rule is jurisdictional, it cannot be waived, noting that the gov argued jurisdiction below, but waived it on appeal:

SOTOMAYOR: Why would that not promote Congress’s policy of insuring — or Congress, explicitly -MR.
KATSAS: It’s jurisdictional except when the Solicitor General waives it?
JUSTICE SOTOMAYOR: Yes. It’s a contradiction in terms. I don’t disagree.
MR. KATSAS: It is a contradiction in terms. All of your cases analyze the situation as if the statute is jurisdictional, then it’s not subject to waiver. If you were to construe this as such a one-of unique statute, it seems to me we would still win because the Solicitor General with full knowledge of the Anti-Injunction Act argument available to him affirmatively gave it up. This is not just a forfeiture where a government lawyer is — through inadvertence fails to raise an argument. This is a case where the government -JUSTICE
SOTOMAYOR: They raised it and then gave it up.

MR. KATSAS: They made it below. They know what it is [JB: a losing argument] ; and not only are they not pursuing it here, they are affirmatively pursuing an argument on the other side.

And with that Roberts, thanked Long as Amicus:

CHIEF JUSTICE ROBERTS: Mr. Long, you were invited by this Court to defend the proposition that the Anti-Injunction Act barred this litigation. You have ably carried out that responsibility, for which the Court is grateful.
MR. LONG: Thank you.
CHIEF JUSTICE ROBERTS: We will continue argument in this case tomorrow..

I have wondered whether the appointment of amicus is improper as there is no live case or controversy. Anyway.

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