Category: Legal Profession

“Snowflake” Standing based on the Executive Order’s “Message” in Hawaii v. Trump

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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NPR’s Evolving Story about Professor Gorsuch

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

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

The story reported:

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

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

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

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

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

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

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

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

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

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

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

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

Other students in the class have not come forward publicly.

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

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

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

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

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

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

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

Other students in the class have not come forward publicly.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After that refutation, the story seemed to vanish.

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

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“The best thing politically is to let Obamacare explode.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

End Obamacare’s illegal “reinsurance” payments.

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

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

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

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


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The End of AHCA

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

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

From Tim Alberta in Politico:

Donald Trump had heard enough about policy and process. It was Thursday afternoon and members of the House Freedom Caucus were peppering the president with wonkish concerns about the American Health Care Act—the language that would leave Obamacare’s “essential health benefits” in place, the community rating provision that limited what insurers could charge certain patients, and whether the next two steps of Speaker Paul Ryan’s master plan were even feasible—when Trump decided to cut them off.

“Forget about the little shit,” Trump said, according to multiple sources in the room. “Let’s focus on the big picture here.”
The group of roughly 30 House conservatives, gathered around a mammoth, oval-shaped conference table in the Cabinet Room of the White House, exchanged disapproving looks. Trump wanted to emphasize the political ramifications of the bill’s defeat; specifically, he said, it would derail his first-term agenda and imperil his prospects for reelection in 2020. The lawmakers nodded and said they understood. And yet they were disturbed by his dismissiveness. For many of the members, the “little shit” meant the policy details that could make or break their support for the bill—and have far-reaching implications for their constituents and the country.

“We’re talking about one-fifth of our economy,” a member told me afterward. . . . .

The president had been working on many of them individually in recent days, typically with what members described as “colorful” phone calls, littered with exaggerations and foul language and hilariously off-topic anecdotes. In some cases, the pressure worked. Jim Bridenstine, a Freedom Caucus member and longtime problem for the Republican leadership, agreed to back the bill after conversations with Trump and other administration officials. (It wasn’t necessary to remind Bridenstine that he was a leading candidate to become NASA administrator, and would likely hurt his chances by voting against the president.) . . .

Then Trump made a mistake. After singling out Meadows and asking him to stand up in front of his colleagues, Trump joked that he might “come after” the Freedom Caucus boss if he didn’t vote yes, and then added, with a more serious tone: “I think Mark Meadows will get on board.”

It was a crucial misreading of Meadows, who has been determined to please both the White House and his conservatives colleagues on the Hill. Upon assuming the chairmanship of the Freedom Caucus earlier this year, Meadows was viewed suspiciously by some of his members who worried that the North Carolina congressman is too cozy with Trump and would hesitate to defy him. Meadows campaigned extensively with Trump last fall and struck up a relationship with White House chief strategist Steve Bannon, who communicates with him almost daily by text. Meadows knew the heath care fight would be viewed a test of his independence from Trump, and the moment the president called him out, he was boxed in.

“That was the biggest mistake the president could have made,” one Freedom Caucus member told me. “Mark desperately wanted to get to yes, and Trump made it impossible for him. If he flipped after that he would look incredibly weak.”

“Take one for the team” was a phrase repeatedly deployed; at one point, after Bannon used it, Joe Barton, a white-haired conservative from Texas, snapped back in response that Bannon was talking to them like children and he didn’t appreciate it. The room filled with uncomfortable silence; Bannon backed down and the meeting went on.

Through charm, force of personality and sheer intimidation, Trump did move some votes into the yes column. But GOP leaders were left wondering why he didn’t do more—why he didn’t send tweets, travel to congressional districts, put his famed dealmaking skills to work. The answer, to Republicans on both ends of Pennsylvania Avenue, is obvious: Because he lacked familiarity with the legislation itself, and thought it was Ryan’s job to sell the specifics.

“Trump is a business executive. When he tells his lieutenants to get something done, he’s used to it getting done,” one senior House GOP aide told me. “He’s really not used to getting involved himself.”

Of course, leadership officials also were eager to blame the Freedom Caucus, claiming the group simply has no interest in voting yes. But the fact is, after Thursday night’s impromptu conference meeting—in which Mulvaney delivered Trump’s ultimatum that he would move on from health care after Friday’s vote—the number of conservatives still opposed to the bill had dwindled significantly. There were 27 Freedom Caucus members voting no at the beginning of the week; by late Thursday, that number appeared to drop below 20. Jordan, worried that conservative opposition might be crumbling, spent Thursday night and Friday morning whipping his comrades to prevent further defections, members said.

Trump’s attempt to cajole the group into submission—tweeting Friday morning about the “irony” of its members opposing abortion but voting against a bill that removed Planned Parenthood funding—didn’t work, and probably backfired, just like his singling out of Meadows. I was told the members were slightly irritated but mostly laughed it off as “Trump being Trump,” and expressed surprise that he hadn’t tried to publicly pressure them ever sooner.

On the opposite end of the spectrum were Meadows, Jordan, Labrador and Michigan Rep. Justin Amash, arguably the four core members of the Freedom Caucus. Moments before I talked to Walker, I had intercepted the four of them walking toward the meeting room. They hadn’t heard the news; when I told them Ryan had pulled the bill, they exchanged glances and tried to suppress grins. Only Meadows looked upset; a southern gentleman and successful businessman, he wants to be liked by everyone, and the episode clearly took an emotional toll on him. He declined to provide a comment. So did Labrador and Amash. But Jordan, the godfather of the House conservatives—he arrived four year prior to the tea party wave of 2010—made clear that he wouldn’t go along with Trump’s decree that Republicans would abandon health care and move on to tax reform.

“We want to see Obamacare repealed,” Jordan told me. “That hasn’t changed.”

Ryan, for his part, told reporters in a somber press conference a short while later that he stood with Trump. Obamacare, that great white whale Republicans had long hunted—and hoped to harpoon on its seven-year anniversary Thursday—would remain “the law of the land” due to the GOP’s inability to function as a “governing body,” the speaker of the House announced. They had failed at fixing the health-care system; next they would try to overhaul the tax code.

The improbability of this sequence was not lost on anyone. Earlier, as Ryan’s motorcade was zipping toward the White House, I spoke with Kevin Brady, the Ways and Means chairman whose committee sits at the intersection of health care and taxes. I’ve known Brady, one of Congress’s truly decent people and a reliably cheerful spirit, for years; never had I seen him looking so despondent and defeated. Positing that health care was about to die, I asked Brady if re-writing the tax code would be any easier. “Tax reform is the hardest lift in a generation,” he told me, shaking his head. “So that would be a big challenge.”

“If you couldn’t get health care done,” I ask him, “how can you get tax reform done?”

Brady thought for a moment. “Every Republican is all-in on tax reform. We still have a lot of work. But it’s just a natural issue for us in a very positive way.”

But every Republican was all-in on repealing and replacing Obamacare, too, I told him. “Won’t the devil be in the details?”

Brady stared back at me. “It always is,” he said. “It always is.”

From WSJ:

And, on Friday, as Mr. Ryan hustled down Pennsylvania Avenue to deliver news that they didn’t have support to pass the repeal-and-replace bill, Mr. Trump insisted on a vote. A few hours later, he reversed himself and spared his Republican colleagues from taking a stand that likely would be used against them in the midterm elections.

Addressing reporters, a subdued Mr. Trump said that along the way he had “learned a lot” about loyalty, the legislative process and the “arcane rules” in Congress.

Still, New York’s Rep. Chris Collins, an early supporter of Mr. Trump during the campaign who has served as a liaison between the White House and Congress, said he had barely seriously considered that the bill might not pass.

“I don’t think many of us, myself included, even a week ago thought there was any chance that this would fail,” he said Friday. “And now it’s like, oh my God, this may fail, and if this fails, where do we go next, and how do we get there?”

The miscalculation by Mr. Ryan and Mr. Trump about the Freedom Caucus came to a head in the Oval Office on Thursday—on what was supposed to be the day the House voted on it, which also happened to be the seventh anniversary that President Barack Obama had signed the Affordable Care Act.

The White House had planned for Vice President Mike Pence to leave for Little Rock, Ark., to begin selling the bill in states that were home to wary GOP senators. Instead, Mr. Trump was still negotiating with Rep. Mark Meadows (R., N.C.), the head of the Freedom Caucus.

An increasingly frustrated Mr. Trump cut off the congressman in the Oval Office, according to a person briefed on the meeting. As Mr. Meadows made his case for a more comprehensive repeal of the insurance provisions, the president said, no, “this is my final offer.”

As the lawmakers were leaving, Mr. Meadow turned to Mr. Trump. “What about this…” he began. Mr. Trump rejected any further discussion, telling him he could take or leave his offer as it stands. “It’s always something else,” a person briefed on the conversation said. “Eventually [the White House] got tired of it.”

Mr. Mulvaney told the caucus Mr. Trump had made his final offer. The White House aides presented two letters, including one from the president, committing the administration to implementing some of the conservatives demand.

Still, the familiar arguments went round and round. Messrs. Ryan and Mulvaney told the lawmakers it was time to go around the room with each of them to say whether they would vote yes or no. Mr. Meadows stepped in to stop them, according to lawmakers who attended the meeting.

“I speak for them,” he told the speaker and the president’s aides, saying they wouldn’t have the votes. The vote, Mr. Mulvaney said, would go ahead anyway.

Around 10 p.m. Thursday, Messrs. Trump and Ryan connected, spending 45 minutes talking through what had happened and where that left them heading into the vote.

Mr. Trump, Mr. Pence and White House officials, including Kellyanne Conway, Mr. Bannon and Mr. Priebus continued to place calls Friday morning. Many of them were making intense arguments to Republican lawmakers. “March or die,” was the message, according to one person who participated in a phone call.

On Friday morning, after the Republican leadership’s last whip check, Mr. Ryan pulled Mr. Meadows into a room off the House floor. “You said you speak for the Freedom Caucus,” Mr. Ryan said to him. “Are you a yes or a no?” He was a no. Mr. Ryan left the room, according to people familiar with their talk.

Mr. Ryan traveled 2 miles from the Capitol to the White House during the lunch hour. Inside the West Wing, Mr. Ryan received a clear message back from Mr. Trump and his team: “Let’s vote,” said one official who was in the room during the meeting.

The vote would take place at 3:30 p.m., Mr. Spicer said Friday afternoon in a televised news briefing. Mr. Trump and his staff had “left everything on the field.”

From WaPo:

Shortly after House Speaker Paul D. Ryan (R-Wis.) unveiled the Republican health-care plan on March 6, President Trump sat in the Oval Office and queried his advisers: “Is this really a good bill?”

And over the next 18 days, until the bill collapsed in the House on Friday afternoon in a humiliating defeat — the sharpest rebuke yet of Trump’s young presidency and his negotiating skills — the question continued to nag at the president.

Even as he thrust himself and the trappings of his office into selling the health-care bill, Trump peppered his aides again and again with the same concern, usually after watching cable news reports chronicling the setbacks, according to two of his advisers: “Is this really a good bill?”

In the end, the answer was no — in part because the president himself seemed to doubt it.

“We were a little bit shy — very little, but it was still a little bit shy, so we pulled it,” Trump said Friday afternoon in an interview with The Washington Post.

He cajoled and charmed uncertain members, offering flattery and attention to some and admonishment and the vague threat of political retribution to others. He invited members to the White House for bowling sessions, gave others rides on Air Force One (complete with ­lasagna) and grinned for pictures in the Oval Office, where he reminded lawmakers of his margins of victory in their districts.

This account of Trump’s work on the health-care bill — based on interviews with roughly three dozen White House aides and advisers, members of Congress, and other key figures in the debate — revealed a president in a constant state of negotiation. He remarked to friends and aides that it did not feel much different from his real estate transactions.

“It’s the same thing,” he said Wednesday in the Oval Office. “Really, it is.”

Reflecting Friday on the failure, Trump said he thought he had cultivated a good relationship with the House Freedom Caucus — the band of hard-line conservatives who proudly oppose Ryan and other House leaders.

“I couldn’t get them,” Trump said in The Post interview. “They just wouldn’t do it. . . . I think they made a mistake, but that’s okay.”

Alluding to the long-running dramas on Capitol Hill, Trump added, “There are years of problems, great hatred and distrust, and, you know, I came into the middle of it.”

But that didn’t stop the president from trying. Just two days before the bill was withdrawn by House leadership, Trump sat inside the Oval Office at dusk as his aides offered yet another blunt warning in a week full of them: The measure was likely to fail. Too many Republicans were opposed.

Still in a suit jacket and striped red tie Wednesday evening, the president dialed Rep. Joe Barton, a wavering Republican from Texas, and placed the call on speakerphone. He put his finger to his lips to shush the clutch of advisers that always surrounds him. The president listened as the congressman ticked through his concerns, sipping from a glass of Diet Coke and jotting down notes with a thick, black Sharpie.

Never one to get caught up in policy details, Trump concentrated his pitch on the big picture: winning. Trump said he wanted a win for Barton, for Texas, for their party, for the country — and, of course, for himself.

When Barton told Trump that he could probably support the bill, with a few changes, the president smiled and winked at Vice President Pence, who stood hovering over the Resolute desk, and Health and Human Services Secretary Tom Price, who leaned forward to listen. As Trump wrapped up the call — “Talk soon,” he told Barton — Pence and Price silently punched their fists in the air. Barton was not an absolute yes but, for the moment, it was good enough.

Then the president was on to the next call.

On Thursday, Trump appeared embarrassingly out of the loop; as the congressional whip efforts faltered, Trump was busy at the White House, greeting commercial truckers and climbing into the cab of a 18-wheeler to honk the horn.

“It’s going to be a very close vote,” the president said, referring to what everyone else seemed to know had been delayed.

As the talks stalled later that night, Trump’s exasperation with the hemming and hawing of members escalated and he delivered an ultimatum: Go ahead with the vote no matter what on Friday, he said, all but daring fellow Republicans to vote against his first significant bill.

The president was finished negotiating, and his thinking was straight from “The Art of the Deal”: If the White House continued to postpone the vote, the holdouts would gain leverage and learn the dangerous lesson that they could challenge Trump and win. Lawmakers wanting to oppose the president would have to do so publicly, in a vote, and face the consequences.

Yet in the end, Trump acquiesced to the preferences of House leaders, who did not want their members voting on a controversial measure if the outcome were in doubt. Realizing the health-care plan did not have the support to pass, Trump and Ryan decided Friday afternoon to pull the bill — news Trump announced in a phone call with The Post, before Ryan even had time to personally brief GOP members.

“Just another day,” Trump said in the call. “Just another day in paradise, okay?”

Meadows said his mantra in negotiating with Trump had been, “If this was about personalities, we’d already be at ‘yes.’ He’s charming, and anyone who spends time with him knows that. But this is about policy, and we’re not going to make it about anything else.”

Trump also sought leverage by surprising members with cold calls. Rep. Dave Brat (R-Va.) was at home near Richmond one day last week, moving boxes into his car, when his cellphone rang.

“Someone came on with this very formal voice and said, ‘Please hold for the president of the United States,’ ” Brat recalled. But when Trump got on the line, the president could not have been less formal, Brat said. “He goes, ‘C’mon, Brat, what’s going on with this thing?’ ”

“I said, ‘I want you to be a success, but the price has to come down,’ ” Brat said. “But he puts on the hard sell. He’s selling. The salesman in sell mode. On that, he’s the best. Humor, heart, personality.”

Trump ended the call with a plea: “Dave, c’mon, we’re going to get it right.” But Brat was unmoved. “I get it,” he said he told the president, “but I couldn’t get behind it.”

From this surreal interview between the President and Robert Costa:

The Democrats, he said, were to blame.

“We couldn’t get one Democratic vote, and we were a little bit shy, very little, but it was still a little bit shy, so we pulled it,” Trump said.

Trump said he would not put the bill on the floor in the coming weeks. He is willing to wait and watch the current law continue and, in his view, encounter problems. And he believes that Democrats will eventually want to work with him on some kind of legislative fix to Obamacare, although he did not say when that would be.

“As you know, I’ve been saying for years that the best thing is to let Obamacare explode and then go make a deal with the Democrats and have one unified deal. And they will come to us; we won’t have to come to them,” he said. “After Obamacare explodes.”

“The beauty,” Trump continued, “is that they own Obamacare. So when it explodes, they come to us, and we make one beautiful deal for the people.”

Trump returned to the theme of blaming the Democrats.

“Hey, we could have done this,” he said. “But we couldn’t get one Democrat vote, not one. So that means they own Obamacare and when that explodes, they will come to us wanting to save whatever is left, and we’ll make a real deal.”

“Well,” Trump said, “we could do that, too. But we didn’t do that. It’s always possible, but we pulled it.”

Trump brought up the vote count. “We were close,” he said.

How close?

“I would say within anywhere from five to 12 votes,” Trump said — although widespread reports indicated that at least three dozen Republicans opposed the measure.

“You’re right,” Trump said. “I’m a team player, but I’ve also said the best thing politically is to let Obamacare explode.”

Trump said he made the decision to pull the bill after meeting Friday at the White House with House Speaker Paul D. Ryan (R-Wis.).

Was that a tense, tough conversation with Ryan, I asked?

“No, not tough,” Trump said. “It’s just life. We had great support among most Republicans but no Democratic votes. Zero. Not one.”

I mentioned to Trump that some of his allies were frustrated with Ryan. Did he share those frustrations, and would he be able to work with Ryan moving forward on plans to cut taxes and build an infrastructure package?

“I don’t blame Paul,” Trump said.

He then repeated the phrase: “I don’t blame Paul. He worked very hard on this.”

And again.

“I don’t blame Paul at all.”

As he waits for Democrats, I asked, what’s next on health care, if anything, policy-wise?

“Time will tell. Obamacare is in for some rough days. You understand that. It’s in for some rough, rough days,” Trump said.

“I’ll fix it as it explodes,” he said. “They’re going to come to ask for help. They’re going to have to. Here’s the good news: Health care is now totally the property of the Democrats.”

Speaking of premium increases, Trump said: “When people get a 200 percent increase next year or a 100 percent or 70 percent, that’s their fault.”

On this last point, Andy Slavitt sums it up well:

Trump’s threat could become “a self-fulfilling prophecy,” said Andy M. Slavitt, the acting administrator of the federal Centers for Medicare and Medicaid Services for the last two years of the Obama administration. “That’s like inheriting an overseas war, and deciding you let your own soldiers get killed because you didn’t elect to enter that war.”

Harvard University economics professor David Cutler, who helped advise the Obama White House on health care, challenged Trump’s argument that the ACA will always be associated with Democrats. “He owns it now,” Cutler said in an email, “because he could take many steps to stabilize things.”








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Media Hits, Commentary, and Events (3/13/17 – 3/23/17)

Over the past 10 days, my attention was focused primarily on the travel ban litigation and Judge Gorsuch’s nomination.  Here are my media hits, commentary, and events over this period. For highlights, I was a guest on All Things Considered and Lou Dobbs Tonight twice. Also, Rush Limbaugh quoted from my Lawfare post. (He referred to me as “some guy named Josh Blackman.”).


  1. Why Courts Shouldn’t Try to Read Trump’s Mind, Politico Magazine (Mar. 16, 2017).
  2. The Legality of the 3/6/17 Executive Order, Part III: The Establishment Clause, Lawfare (Mar. 15, 2017).
  3. The Legality of the 3/6/17 Executive Order, Part II: The Due Process Clause Analysis, Lawfare (Mar. 12, 2017).



  • Guest on AM740 KTRH, Houston to discuss health care (Mar. 15, 2017).

  • Interviewed on WHDT News to discuss American Health Care Act (Mar. 12, 2017).

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Guest on the Michael Berry Show to discuss Judge Gorsuch, the Supreme Court, and Mr. Smarty Pants

The Michael Berry Show, which started in Houston, is now syndicated in over two-dozen markets. On Wednesday, Michael invited me to the studio to talk about Judge Gorsuch for (what he told me would be) 30 minutes. Little did I know that he had other ideas in mind. I was in studio for a full three hours–yes, the entire show!–to participate in a new feature he called “Mr. Smarty Pants.”

Listeners sent in questions on a whole range of topics–everything from horse breeding to well drilling–trying to stump me. It worked! My knowledge about the law is deep, though I am rationally ignorant about so many other areas of our world. In between the “Mr. Smarty Pants” segment, Michael asked me to discuss the Supreme Court, Judge Gorsuch, and the Constitution. Usually on the radio I am limited to 15 second sound bites. Here I could speak for minutes, uninterrupted. It is well worth the listen.

You can listen to the show here:

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Property Midterm – Castaway, Modified

My Property midterm exam was based, loosely, on the film Castaway. You can download the exam here, and the A+ paper here.


You are a mediator. Two castaways who were on a deserted island ask you to write an opinion of no more than 1,000 words, addressing five property disputes that arose between them. Because the island did not have any statutes or regulations governing the issues in this case, you can rely on any common law or natural law principles that American courts have cited.

Tom and Wilson set out to circumnavigate the world in a hot air balloon. Tragically, during a storm, their balloon crashed on a deserted island. All of their radio equipment was damaged, so they cannot signal for help. The two only have enough provisions to last for a few days.

The island is divided down the middle by a mountain range. Tom sets up camp on the north side of the island, and declares it Northacre. Wilson sets up camp on the south side of the island, and declares it Southacre.

There is a fresh-water river that begins on Northacre, flows across the mountain range through Southacre, and spills into the ocean. The river provides more than enough water to satisfy their personal needs, and both Tom and Wilson begin to draw water from it.

Wilson discovers that Southacre is inhabited by a pack of wild boars. At dawn, he begins tracking a boar. Wilson fashioned a spear out of a branch with a rock attached to the tip. He throws the spear at the boar, which grazes the beast’s tail. Frightened, the boar starts running toward the mountain range. Wilson follows it. Once the boar crosses onto Northacre, Tom sees it, and starts chasing it as well. As Tom and Wilson corner the beast, it jumps into the river and starts swimming downstream. At that moment, a freak winter storm arrives, and the temperature suddenly plummets. The river immediately freezes over. The boar is stuck in the river, frozen solid. Tom and Wilson both try to dig the boar out, but the ice is too thick. The next day, as the river thaws, the frozen boar floats downstream to Southacre. Wilson pulls it out of the water. Tom asserts that he has the strongest claim to the boar. Wilson disagrees; he skins the boar, which he makes into a coat, and eats the meat.

While the rocky soil on Northacre was dry, the soil on Southacre was very fertile. Wilson plant crops on Southacre, which, when harvested, would provide more than enough food for both residents on the island to eat. Wilson relies on the river to water the crops. Tom, still bitter about the boar, erects a dam on the river, thus blocking the flow of water to Southacre. Wilson demands that Tom remove the dam, stating that he also has a claim to the water. Tom refuses, destroying Wilson’s entire harvest.

Left without anything to eat, Tom begins to forage the beach of Northacre for food. While digging in the sand, he discovers a buried chest. Without removing the chest from the sand, he pries open the lid, and finds it is full of gold coins. Tom immediately realizes that the island was not as deserted as he had thought. As the sun was setting, Tom decides to wait until the morning to remove the chest from the sand. While Tom is sleeping, Wilson crosses the mountain and

removes all of the gold coins, and leaves the chest buried in the sand. Wilson then buries the gold coins on the sands of Southacre. Tom demands Wilson return the gold coins. Wilson refuses.

The next day, a box washes ashore on Southacre containing a sealed, fully-functional solar- powered flashlight. Wilson tells Tom about it. Tom asks Wilson if he can have it. Without writing anything down, Wilson says that he will use it for the rest of his life, and then Tom can have it. Tom agrees.

Later that year, Tom becomes ill, and writes the following conveyance: “I will continue to live on Northacre, but if I die, then to Wilson and his heirs.” Wilson accepts the conveyance.

Shortly thereafter, Tom makes a speedy recovery. Miraculously, a rescue boat locates the castaways. After they return to the United States, the duo hires you, a mediator, to resolve their disputes.

You are asked to prepare an opinion of no more than 1,000 words addressing the following five issues:

1. Who has the stronger claim to the boar’s skin? Tom or Wilson.

2. What is Tom’s strongest claim to the gold coins? What is Wilson’s strongest claim to the gold coins?

3. What are the present and future interests in the flashlight? 4. What are the present and future interests in Northacre?

5. How should Tom and Wilson have resolved the dispute over the erection of a dam on the river?


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