May 28, 2016

Airport Delays in Houston

Yesterday I was schedule to fly back from Philadelphia to Houston. Due to awful storms in Houston, my 12:19 pm flight was cancelled by 7:00 am. Bush Intercontinental Airport (IAH) had a ground stop in effect for most of the day. Other flights were diverted to New Orleans or Austin. I was rebooked for a 5:40 pm flight that did not leave until 7:00 ET. Our flight was schedule to land around 9:30 CT. Before landing, we had to circle in the air for about 30 minutes. Finally, we landed at 10:00 CT. But then something absolutely crazy happened. There were so many airplanes backed up on the tarmac that there were not enough empty gates to pull into. When we finally landed, the captain announced that there were 14 planes ahead of us waiting for gates. Every 30 minutes, the captain would announce that we were moving up in the line, and would soon have a gate in another 30 minutes. The announcements came at 10:30, 11:00, 11:30, 12:00, and 12:30. Finally, around 1:15 we pulled into a gate. I spent about 3 hours in the air, and about 3 hours on the ground waiting for a gate.

The pilot said in 21 years he had never seen a delay quite this bad. About an hour in, the flight attendants started handing out water. About two hours in, they gave a round of free snacks. Fortunately, no one on the plane misbehaved. Most people were resolved that their travel plans were absolutely screwed. One guy I talked to was flying to Brazil for a wedding on Saturday. No way he made it. The person sitting next to me was heading to Las Vegas for a weekend. She was rebooked for a Sunday evening flight to Vegas. So she will be stuck in Houston for two days.

After I entered the terminal, it was surreal. There are two customer service desks: one in Terminal C and one in Terminal E. As the below videos illustrate, the line snaked hundreds of people deep. It took me roughly two minutes to walk the line, so to speak. And I fear that the customer service reps will not be able to help these poor stranded passengers on memorial day weekend. Flights will be backed up for days, and United does not provide free hotels when delays are caused by weather. I saw a countless number of people sleeping throughout the terminal. Even worse, all food concessions were closed, so there was nothing to eat late at night. I am grateful that I was able to get home.

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May 27, 2016

Donald Trump’s Dangerous Attack on U.S. District Judge Gonzalo Curiel and the “Rigged” Federal Judiciary

During his rally in San Diego, Donald Trump spent twelve minutes lambasting U.S. District Judge Gonzalo Curiel and Magistrate Judge William Gallo. His jaw-dropping comments reflect an utter ignorance about what judges do, and amounts to a dangerous attacks on the fairness of our court system. Whatever negligible good will he built up by nominating a list of solid potential nominees to the Supreme Court was squandered with this scurrilous attack. Those who defended his selection process should immediately rebuke him for these baseless insults.

The remarks began at 22:16. I’ve cleaned up the C-SPAN closed captioning so it makes it easier to follow along, but I encourage you to actually watch the video.

Does everybody have a little time? [cheers and applause] so I end up with a lawsuit, and it ends up in San Diego in federal court. It is a disgrace the way the federal court is acting, because it is a simple lawsuit. Everybody that took the so-called course. Trump University is in San Diego. The trial, they wanted it to start while I am running for president. The trial is going to take place sometime in November. There should be no trial. This should have been dismissed on summary judgment easily. Everybody says it, but I have a judge who is a hater of Donald trump. He’s a hater. His name is Gonzalo Curial. And he is not doing the right thing. I figure what the hell? Why not talk about it for two minutes. Should I talk about it? Yes? [cheers and applause] so we should have won. . . .

But I am getting railroaded by a legal system, and frankly they should be ashamed. I will be here in November. Hey, if I win as president, it is a civil case. I could have settled this case numerous times. But I don’t want to settle cases when we are right. I don’t believe in it. When you start settling cases, do you know what happens? Everybody sues you because you get known as a settler. One thing about me, I am not known as the settler. And people understand with this whole thing, with this whole deal with the lawyers, class action lawyers are the worst. It is a scam. Here is what happens. We are in front of a very hostile judge. The judge was appointed by by Barrack Obama – federal judge. [Boos]. Frankly he should recuse himself. He has given us ruling after ruling, negative, negative, negative. I have a top lawyer who said he has never seen anything like this before. So what happens is we get sued. We have a Magistrate named William Gallo who truly hates us. The good news is it is a jury trial. We can even get a fully jury. We are entitled to a jury, and we want a jury of 12 people. And you are going to watch. First of all, it should be dismissed. Watch how we win it was I have been treated unfairly. Very much like with the veterans, where I raised all that money, but on Tuesday I am announcing all of the groups we are giving almost $6 million to. You turn things around. Here is the story. We have a law firm named Robin Skeller. It is the spin-off of two law firms. Two of those partners went to jail for an extended period of time for doing very bad things legally. This same group is the lawyers against. So what happens is the judge, who happens to be, we believe Mexican, which is great. I think that is fine. You know what? I think the Mexicans are going to end up loving Donald Trump when I give all these jobs. I think they are going to love it. I think they are going to love me. . . .

A lot of people said before you run you should settle. I said I don’t care. The people understand it. And they use it. So when I have 10,000 people, and when we have mostly unbelievable reviews, how do you settle? And in fact, when the case started originally, I said how can I settle when I have a review like this? Now I should have settled, but I am glad I didn’t. I will be seeing you in November either as president. And I will say this. I have all these great reviews, but I will say this. I think Judge Curiel should be ashamed of himself. I think it is a disgrace he is doing this. I look forward to going before a jury, not this judge, and we will win that trial. We will win that trial. Check it out. Check it out, folks. You know, I tell this to people.  November 28. I think it is scheduled for. It should not be a trial. It should be a summary judgment dismissal. . . .

It is a disgrace. It is a rigged system. I had a rigged system, except we won by so much. This court system, the judges in this court system, federal court. They ought to look into Judge Curiel because what Judge Curiel is doing is a total disgrace. Ok? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case? Where everybody likes it. Ok. This is called life, folks. . . .

I am speechless. Absolutely, and totally speechless. I was highly critical of President Obama’s attacks on the Court. I cringe to think what will happen when the Supreme Court rules against him. I repeat everything I said here: Donald Trump is unqualified to be President.

Update: Yesterday, shortly after Trump’s speech, Judge Curiel issued a decision unsealing a “playbook” used by Trump University employees. The opinion referenced the fact that Trump “place the integrity off these court proceedings at issue.”

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May 27, 2016

Video: “The Next Supreme Court Battle” at the National Constitution Center.

The National Constitution Center hosted me for a discussion on “The Next Supreme Court Battle.” I was joined by former 3rd Circuit Judge Timothy Lewis, Michael Gerhardt of UNC Law School, and David Strauss of the University of Chicago Law School. As always, the event was moderated by Jeff Rosen. I was the sole person on the stage who did not think the Senate had any obligation to provide a hearing for Judge Garland. My remarks were based on articles I wrote in the Wall Street Journal and National Review. I also previewed some of the arguments advanced in Restoring the Lost Confirmation, which I co-authored with Randy Barnett for the University of Chicago Law Review Online.

You can watch the video here (my questions come at 10:30, 23:30, 38:40, 50:05, and 1:10:10).







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May 27, 2016

#SCOTUS Life Goals: RBG References My Breyer-Page Statistics During 2nd Circuit Judicial Conference

Yesterday Justice Ginsburg addressed the 2nd Circuit Judicial Conference. She made some news with her comment that “Eight is not a good number” for the Court, but the far more momentous occasion came when she discussed records set during the Term. This morning Will Baude emailed me, and said “RBG just mentioned you in her speech at the second circuit judicial conference.” I patiently waited for the transcript to be posted, and she did not disappoint.

From her prepared remarks:

Records set during the term. According to a law professor who keeps tabs on these things, then blogs about them, Justice Breyer asked the longest question at oral argument. In United States v. Texas, a challenge to the President’s immigration executive order, Breyer’s inquiry ran 52 transcript lines.

That law professor would be me! #SCOTUS life goals. Not as good as an actual citation in the U.S. Reports, but I’ll take it for a start.

I am glad to perform this public service, and do whatever is in my power to highlight the plight of the poor advocate who has to cede 10% of his time for a single question that has no answer.


Breyer’s 52-line question in U.S. v. Texas–which lasted 3 minutes and 15 seconds–was not just the record for this term, but the longest one I have ever seen. (If anyone can find a longer Breyer question, please send it in). He went for 49 lines in Zubik v. Burwell. His previous record was in 44 lines in Hosannah-Tabor. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines inZivotofsky.

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May 25, 2016

The History of the Section 1402 Payments in House of Representatives v. Burwell

On May 11, under subpoena by the House Ways & Means Committee, David Fisher was deposed about the Obama administration’s funding for the ACA’s Section 1402 cost-sharing payments. (For a background of this issue as it relates to House of Representatives v. Burwell, see this piece in National Review). Fisher served as the IRS’s Chief Risk Officer.

In a nutshell, Fisher was concerned that there was not a valid appropriation. He attended a meeting with an OMB political appointee who provided a memo explaining the administration’s position, but he was not allowed to keep the memo or take any notes. The Chief Risk Officer still was not persuaded, so he called for a meeting with the IRS Commissioner. The Secretary of the Treasury and AG Holder both personally signed off on the memo, which the IRS Commissioner approved over Fisher’s dissent.

In this (lengthy) post, I digest the 73-page deposition into a narrative (with record cites) to try to explain from Fisher’s perspective what transpired. I’ll offer my commentary in a later writing. Here, I’d like to establish the record as clearly as I can.

“As the Chief Risk Officer,” David Fisher said, “I am commonly engaged with senior leaders from around the IRS. And there was a potential concern about these payments.” (p. 13). David Fisher first became aware of the 1402 issue in the “late fall of 2013.” Gregory Kane, Deputy Chief Financial Officer, “raised a little confusion about the funding source for the cost-sharing program, as to whether or not that source was going to be subject to sequester or not subject to sequester.” (p. 13). He described the thirty-year civil servant’s role as “engag[ing] senior leaders into making sure they have all the information necessary to make a good decision.” (p. 16). Permanent appropriations are not affected by the sequester, but annual appropriations are subject to the restriction on federal spending. “The IRS would need to decide,” Fisher said, “whether or not to sequester those funds if sequestration kicked in.” (p. 16).

The IRS’s “original understanding,” Fisher explained, “was that these funds were going to be appropriated funds and, therefore, subject to the sequester.” (p. 16). But there was a “shift,” and HHS’s budget request “had been withdrawn.” (p. 17). By December, “it became clear that . . . the intent was to use the permanent appropriation to pay the cost-sharing reduction payments.” (p. 22). This decision, Fisher said, raised “some confusion and concern . . .  from an audit standpoint,” because auditors had to be “able to trace these payments all the way back to the source.” (p. 19).

Fisher explained that in his experiences, “in all previous instances” when Congress wanted to create a “permanent appropriation,” there was a “discrete update to the Internal Revenue Code.” (p. 49-50). For example, “section 1401 of the Affordable Care Act creates section 36B of the Internal Revenue Code,” which established a permanent appropriation for the Advance Premium Tax Credits (subsidies on the exchanges). (p. 49). While the funding for Section 36B was “discretely articulated in” the ACA, he noted, “there was no clear reference in the section regarding the cost-sharing reduction payments to the Internal Revenue Code in the Affordable Care Act.” (p. 50). The Section 1402 “cost-sharing reduction payments are not linked to the Internal Revenue Code, as far as I could tell, directly anywhere.” (p. 59).  The requirement of Congress “mak[ing] it clear,” was the “consistent practice, perhaps in all cases.” (p. 51-52). In light of this “risk,” and the statute being “at best unclear,” Fisher was “looking for the administration’s perspective on this.” (p. 50, 54).

Fisher attended a meeting at the Old Executive Office Building—across the street from the White House—on January 13, 2014. He requested an invitation to attend this meeting because he determined “there was at least some risk here and it was appropriate for the Chief Risk Officer to be involved in the discussion.” (p. 25). Fisher explained that the “risk” was “whether or not the utilization of the permanent appropriation for the cost-sharing program had been appropriately appropriated by the law.” (p. 26).

At the meeting with the Office of Management and Budget, Fisher recalled, “We were given a memo to read,” but “we were instructed we were not to take notes and we would not be keeping the memo, we’d be giving it back at the end of the meeting.” (p. 26) There “was no real explanation as to why we couldn’t keep the memo,” Fisher said. (p. 46). It “was just simply stated.” (p. 48). This secrecy “was not a common practice” in Fisher’s “10 years in government at the three agencies where [he] worked.” (p. 47). Other than dealing with classified information at the Department of Defense, he did not “recall another occurrence” of not being able to keep a memorandum. (p. 47). Fisher speculated that the cloak-and-dagger protocol was triggered because the administration “wanted to have some kind of contained distribution for whatever purpose. I don’t know their purpose. They clearly wanted to have that information only shared with a select group of folks.” (p. 48). It was “a little unusual,” he said. (p. 69). Further, while Fisher usually takes copious notes, he “took no notes in the meeting at OMB because we were told not to take notes.” (p. 70).

After distributing the memo, “The OMB team left the room,” and the “IRS team stayed in the room” “to read the detailed memo.” (p. 26). Afterwards, Fisher recalled, “the OMB people came back in.” (p. 26). Fisher asked if he would “be able to use this memo” in the event of an audit to explain the “legal justification that the administration had put forward.” (p. 46). He was told “yes,” and “if our auditors down the road found a concern related to the source of these payments,” the IRS could “actually show that full memo.” (p. 46)

The memo, which Fisher was not allowed to retain a copy of, “justif[ied] the payments out of the permanent appropriation.” (p. 26). He described the memo as a “lengthy . . . list of small justifications of individual things trying to identify why the administration believed that it was Congress’ intent to have the payments for both the Advance Premium Tax Credit and the cost-sharing reduction payment being made in the same manner.” (p. 27). For example, there were “allusions” to statements made on the floor and statements made in the media. (p. 27-28). But “there was no sort of single, main argument.” Instead there was a “collection of . . . elements that in total, would draw the conclusion that these payments out of the permanent appropriation would be appropriate.” (p. 28).

The memo was drafted by attorney Sam Berger, who had worked at OMB since his graduation from Yale Law School in 2010. (p. 28). Fisher recalled that the memo had been “discussed both within the Office of Management and Budget and in the Justice Department,” and “other parts of the executive branch. (p. 29, 64). Geovette Washington, the OMB General Counsel personally briefed Attorney General Eric Holder on the memo. (p. 31, 36). Fisher recalled that “it stood out in [his] mind” that she personally “had an opportunity to brief the Attorney General himself.” (p. 32).

Throughout the deposition, Fisher carefully distinguished the work performed by career civil servants with decisions made by appointed officials in the “administration. The “administration,” Fisher said, “has gone through the legal analysis and has come up with the opinion that, based on the information contained in this memo, it was appropriate to use the permanent appropriation.” (p. 29). “And that was the administration’s conclusion, and, therefore, the payments should be made,” based on the “legal analysis that the administration had performed.” (p. 29).

After the meeting with OMB, Fisher said his “group was not in consensus on the merits of the argument as conveyed to us through the memo.” (p. 33). Mr. Kane also had “some reservations still, even after . . . reading the memo and going to the meeting.” (p. 34-35). Fisher advocated to “set[] up a meeting with the Commissioner of the IRS to make sure he’s fully informed.” (p. 33). Fisher said that their job was to “identify potential risks” that “require senior-level engagement.” (p. 33). This case was particularly suited for the escalation, because Fisher “had concerns about the analysis in the memo.” (p. 34).

Fisher joked, “I know it’s hard to believe for some people,” but “this was not about health care” for him. (p. 34). It was “about appropriations law.” (p. 34). He noted that they take “very seriously” the Antideficiency Act,” which imposes “criminal penalties” for spending money without proper authorization. (p. 34). “We wanted to make sure that these payments were not going to be in violation of appropriation law and the Antideficiency Act,” Fisher said. “That’s what this was all about.” (p. 34).

It was “not unusual” for there to be disagreements about appropriations law, Fisher said, “but this was “probably a stronger disagreement than is typical.” (pp. 67-68). It “did not occur very often, that it would get to [the IRS Commissioner’s] level.” (p. 68).

The meeting with IRS Commissioner John Koskinen was held roughly one week after the OMB meeting. (p. 38). Fisher described the meeting as a “free and open discussion,” and praised Koskinen as a “not only a phenomenal leader but one of the best managers we’ve ever had in government.” (p. 38). He appreciated that he was given “plenty of time to air [his] concerns.” (p. 40).

At the meeting, Koskinen reviewed a memorandum from Mark Mazur, the Assistant Secretary for Tax Policy to Treasury Secretary Jacob Lew. (p. 39). (Mazur was the author of the blog post in July 2013 that announced the delay of the employer mandate). The memo noted that Treasury’s Counsel “had concluded that these payments were appropriate.” (p. 39). It was “signed and initialed ‘Approve’” by Secretary Lew. (p. 39). Fisher recalled that the Justice Department had also “seen the memo and had . . . approv[ed] of it.” (p. 39).

Fisher sensed that there was a “very strong consensus” at the meeting from “fairly senior positions in government that these payments were appropriate.” (p. 39). The “position [that] carried the day” was that the appropriation was “implied,” or an “intermingled requirement.” (p. 60). However, the Chief Risk Officer “was in the dissent,” because he saw “some risk to making these payments with respect to the appropriations law and the Antideficiency Act.” (p. 39). He told those in attendance that “the memo that we read was not compelling to me to counter my concerns about the Appropriations Act.” (p. 40). Fisher “read the law over and over again to try to convince myself, you know, what’s the appropriate reading of this, recognizing that many others have now come to a different conclusion.” (p. 40). But he was still in dissent.

Ultimately, Koskinen sided with the administration officials. Fisher offered his summary of the decision-making process, which is worth quoting in full.

In the end, he made the decision that I actually would expect him to make. It was a decision that I disagreed with. But when a senior leader, an agency head, has brought his senior advisers together, he is given a lot of information — there was nothing held back. He had, I think, a presentation that did appear to him to be compelling, that these payments out of the permanent appropriation were appropriate, again, with multiple components within the executive branch concurring that that’s the appropriate thing to do, including the memo that we had in hand from the leadership at the Treasury Department. He listened to my concerns and thanked me, actually, in the meeting for expressing those concerns but felt the appropriate course was to go forward and make the payments, you know, per the strong majority of folks who believed that they were appropriate. (p. 40).

I was certainly not surprised that he supported that with this level of senior advice given to him as, you know, what should we go do. He made the choice that I bet you 99 out of 100 people would have made. It’s just one that I happen to disagree with in terms of my understanding of both appropriation law and my reading of the statute. (p. 58).

As an aside, there were two comments from Democratic members of the Committee that stood out:

Rep. Sandy Levin (D-MI), ranking member of the Ways & Means Committee, strongly opposed the deposition: “As we have expressed before, we strongly oppose this deposition. It’s unprecedented. It was done without any consultation with the minority. Also, it’s the same subject matter as a lawsuit begun by the very people who have undertaken this deposition — the same people. The House majority filed a lawsuit. It’s on the very same subject matter.” (p. 9).

Rep. Jim McDermott (D-WA) offered an interesting commentary on how Congress views the implementation of the laws it enacts: “Mr. Fisher, I want to thank you for coming and talking about how decisions are made inside the bureaucracy. We write laws out here, and then they get implemented, and sometimes we’re not aware exactly how it works.”


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May 25, 2016

Update from Brownsville: DHS Erroneously Granted 3 More Expanded DACA Work Authorizations

In the latest update from Brownsville in Texas v. U.S., DHS acknowledged that “since its last update to the Court, at total of three EADs (employment authorization documents) with validity periods greater than two years–each of which has been produced and issued prior to the injunction–were inadvertently resent after having been returned to USCIS.” They were resent “due to human error.” Judge Hanen, I’m sure, will take this under advisement.

The affidavit was filed by the U.S. Attorney for the Souther District of Texas. The report noted, “Due to the present uncertainty regarding which lawyers form the Department of Justice are no longer admitted to practice pro hac vice before this Court, the U.S. Attorney for the Southern District of Texas files the attached declaration.”

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May 25, 2016

Video: “Red, White, and Blue” on Houston Public Media -The Supreme Court’s Term

I was recently a guest on “Red, White, and Blue” a public affairs debate program on Houston Public Media. I appeared alongside Martin Levy (Texas Southern) and Teddy Rave (University of Houston) to discuss the Court’s term. As a special treat, I got to read the “Advice and Consent” clause aloud of TV.





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May 25, 2016

Thursday at National Constitution Center: The Next #SCOTUS Confirmation Battle

On Thursday, I will be speaking at the National Constitution Center in Philadelphia on the next Supreme Court confirmation battle. Here is the description of the event:

Former federal appeals judge Timothy Lewis of Schnader Harrison Segal & Lewis LLP and law professors Josh Blackman of the South Texas College of Law, National Constitution Center Scholar-in-Residence Michael Gerhardt, and David Strauss of the University of Chicago Law School assess the Supreme Court confirmation process and the debate over President Obama’s nomination of Judge Merrick Garland to the high court. Jeffrey Rosen, Center president and CEO, moderates.

If you are in Philadelphia, I hope to see you there.

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May 23, 2016

Amica Curiae

In today’s decision in Green v. Brennan, Justice Sotomayor’s majority opinion used the correct latin, amica curiae, to refer to a female Court-appointed attorney: Catherine M.A. Carroll.

Amica and the dissent read “matter alleged to be discriminatory” as having a clear enough meaning to displace our reliance on the standard rule for limitations periods. They argue that “matter” is not equivalent to “claim” or “cause of action,” and that the use of the phrase “matter alleged to be discriminatory” is a sufficiently clear statement that the standard claim accrual rule should not apply. According toamica and the dissent, “matter” refers only to the discriminatory acts of the Postal Service, not Green’s resignation.

I could only find one other instance of that phrasing in a footnote in Justice Ginsburg’s decision in Daimler AG v. Bauman (2014):

Brief for Lea Brilmayer as Amica Curiae 10–12, amici in support of Daimler homed in on the insufficiency of Daimler’s California contacts for general jurisdiction purposes. In short, and in light of our pathmarking opinion in Goodyear, we perceive no unfairness in deciding today that California is not an all-purpose forum for claims against Daimler.
Perhaps the new focus on the gender of Court-appointed attorneys was on the mind of the Justices after Adam Liptak’s column showing the bulk of Court-appointed amici were male.

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May 23, 2016

Event at National Constitution Center on Thursday: The Next Supreme Court Confirmation Battle

On Thursday, May 26, at 6:30, I will be speaking at the National Constitution Center on the “confirmation battle,” which at the present moment looks more like a stalemate.

Former federal appeals judge Timothy Lewis of Schnader Harrison Segal & Lewis LLP and law professors Josh Blackman of the South Texas College of Law, National Constitution Center Scholar-in-Residence Michael Gerhardt, and David Strauss of the University of Chicago Law School assess the Supreme Court confirmation process and the debate over President Obama’s nomination of Judge Merrick Garland to the high court. Jeffrey Rosen, Center president and CEO, moderates.

I will use this opportunity to discuss a piece on the confirmation process and originalism, that I am working on with Randy Barnett.

I hope to see you there.

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May 23, 2016

Video: “The Legacy of Justice Scalia: Remembering a Conservative Legal Titan’s Impact on the Law”

On Thursday, May 19, the Heritage Foundation hosted an event on Justice Scalia’s legacy. Noel Francisco gave a touching keynote. My discussion on Justice Scalia’s dissents, and the separation of powers, begins at 28:20. After I speak, Stephanos Bibas spoke about Scalia’s criminal procedure cases, and Rick Garnett discussed the freedom of religion. It was a heartfelt and thoughtful tribute to Nino.





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May 22, 2016

Federal Court Holds Google’s Decision to Remove Site From Listing is Not Protected by the First Amendment

E-Ventures Worldwide filed suit against Google for removing its web site from Google’s search listings. The company alleged a violation of the Lanham Act, and several state tort claims. Google (as it has done before) defended its decision to exclude E-Ventures’ site, claiming that the company violated its Terms of Service. As a result, Google’s First Amendment rights protected that decision to include or exclude content.

The District Court rejected Google’s Motion to Dismiss on the First Amendment claims. M.D.Fl. distinguished the output from Google’s “page rank” sorting algorithm–which other courts have recognized are protected by the First Amendment–with its decision to remove a site for a Terms of Service violation. Here is the key part of the analysis:

The Court has little quarrel with the cases cited by Google for the proposition that search engine output results are protected by the First Amendment. Zhang v. Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014); Langdon, 474 F. Supp. 2d 622; Kinderstart v. Google, Inc., No. C06-2057JF(RS), 2007 WL 831806, at *1 (N.D. Cal. Mar. 16, 2007); Search King, Inc. v. Google Tech., Inc., No. CIV-02-1457-M, 2003 WL 21464568, at *1 (W.D. Okla. May 27, 2003). The Court finds these cases persuasive that Google’s PageRanks are pure opinions of the website’s relevancy to a user’s search query, incapable of being proven true or false. While a claim based upon Google’s PageRanks or order of websites on Google’s search results may be barred by the First Amendment, plaintiff has not based its claims on the PageRanks or order assigned to its websites. Rather, plaintiff is alleging that as a result of its pages being removed from Google’s search results, Google falsely stated that e-ventures’ websites failed to comply with Google’s policies. (Doc. #75, ¶¶ 66, 88-89, 92.) Google is in fact defending on the basis that e-ventures’ websites were removed due to e-ventures’ failure to comply with Google’s policies. (Doc. #78.) The Court finds that this speech is capable of being proven true or false since one can determine whether e-ventures did in fact violate Google’s policies. This makes this case distinguishable from the PageRanks situation. Therefore, this case does not involve protected pure opinion speech, and the First Amendment does not bar the claims as pled in the Second Amended Complaint.

(NB: My article, What Happens if Data is Speech, was cited in Zhang v. Baidu).

The court further rejected Google’s claim that the exclusion of the site is protected by Google’s editorial judgment, because the decision was made for “anti-competitive motives”:

Google also argues that its search results are editorial judgments protected by the First Amendment. (Id. at 13.) While publishers are entitled to discretion for editorial judgment decisions, plaintiff has alleged that Google’s reason for banning its websites was not based upon “editorial judgments,” but instead based upon anti-competitive motives. (Doc. #75, ¶ 18; Doc. #79, p. 11); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386 (1973); Ragin v. New York Times Co., 923 F.2d 995, 1003 (2d Cir. 1991); Levitch v. Columbia Broad. Sys., Inc., 495 F. Supp. 649, 662 (S.D.N.Y. 1980) (“[A]bsent such purely editorial conduct, plaintiffs’ claims must be tested against the normal pleading requirements applicable in federal court.”). Further, a fact published maliciously with knowledge of its falsity or serious doubts as to its truth is sufficient to overcome the editorial judgment protection afforded by the Constitution. Pittsburgh Press Co., 413 U.S. at 386.

I am not familiar with the “anti-competitive motive” exception to the First Amendment, so I’ll reserve judgment for now.


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May 22, 2016

Podcast: House of Representatives v. Burwell

On Friday, I participated in a Federalist Society teleforum on the district court’s decision in House of Representatives v. Burwell. You can listen to the podcast here.

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May 20, 2016

Clinton Advisor Says Heller was “Wrongly Decided,” Has No Idea What Case is About

An advisor to Hillay Clinton said that Heller was “wrongly decided.” But she has absolutely no idea what the case held.

“Clinton believes Heller was wrongly decided in that cities and states should have the power to craft common sense laws to keep their residents safe, like safe storage laws to prevent toddlers from accessing guns,” Maya Harris, a policy adviser to Clinton, said in an e-mailed statement. “In overturning Washington D.C.’s safe storage law, Clinton worries that Heller may open the door to overturning thoughtful, common sense safety measures in the future.”

The critical, constitutional issue, was whether the District of Columbia could ban the private ownership of handguns. The case in no way affected “safe storage laws.” In fact, the District of Columbia still has safe storage laws in effect.

From the Metropolitan Police Department’s website:

The law requires that no person shall store or keep any loaded firearm on any premises under his control if he knows or reasonably should know that a minor under the age of 18 is likely to gain access to the firearm without the permission of the parent or guardian of the minor unless such person . . .  Keeps the firearm in a securely locked box, secured container, or in a location which a reasonable person would believe to be secure.

If Ms. Harris is going to criticize a Supreme Court decision, she should have some clue what the case is about.

(I have my doubts about whether such a law is in fact constitutional, but Heller in no way affected such a law).

Update: In Heller, the Court also considered the constitutionality of the D.C. trigger-lock law. This is different from a “safe storage law.”  The Heller Court described the law in this fashion:

District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, “unloaded and dissembled or
bound by a trigger lock or similar device” unless they are located in a place of business or are being used for lawful recreational activities.

Under safe-storage laws, guns are to remain operable, but must remain in a secured case or box.

At the time, the only guns that could lawfully be owned in D.C. were certain long guns, or handguns that were owned before the ban went into effect.

For example, Dick Heller owned a firearm from the 1970s, but was not allowed to remove the locks. The instant he removed the lock–even if it were for self-defense–he would have broken the District of Columbia’s law.


Even assuming that Harris simply used the wrong term, her answer lets on more than she would like.To say that the problem with Heller was that it invalidated some sort of safe-storage law, presupposes that a resident of the District of Columbia had a constitutional right to own a gun in the first place. If you adopt the dissent’s view, D.C. could have banned ownership of handguns all-together. The storage law was an added benefit.

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May 20, 2016

Teleforum today at 2:00 ET on House of Representatives v. Burwell

Today at 2:00, the Federalist Society’s Administrative Law & Regulation Practice Group will host me for a teleforum on House of Representatives v. Burwell. You can read more in my piece last week on NRO.
Here is the info:
Administrative Law & Regulation Practice Group
Friday, May 20, 2016 | 2:00 p.m. EDT   

On Thursday, May 12, a United States District Court Judge upheld a constitutional challenge to the Affordable Care Act by finding that the monies for two programs that reimburse insurance companies for providing health coverage at lower costs to low-income consumers and provide tax credits to help these consumers afford their premiums were never appropriated by Congress, and that the programs were thus unconstitutional. Judge Rosemary M. Collyer stayed her decision pending appeal. Our expert will discuss the opinion as well as its outlook on appeal.

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May 20, 2016

Correcting Josh Blackmun

In legal circles, my last name is a mixed bag. On the plus side, most people are amused that I share a name with a Justice I profoundly disagree with on most legal questions. On the downside, my name is constantly misspelled like the Justice, as Blackmun. According to the WestLaw Law Journal database, there are at least five citations to “Josh Blackmun.” (For academics, citations are the coin of the realm). In 2011, Judge Sykes kindly cited an article I co-authored with Ilya Shapiro in her opinion in Ezell v. City of Chicago. I was thrilled, until I realized my name was spelled, Blackmun. I put a call into the 7th Circuit’s clerk’s office, and the PDF was fixed later that day.

However, this correction from the L.A. Times may be my favorite!


(I Should note that my praise was qualified–see my article in National Review).

The Chicago Tribune, which syndicated the story, offered a similar correction.



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May 20, 2016

New in National Review: “Texas Judge Rebukes Obama Justice Department for ‘Bad Faith’ in Immigration Case”

The case of Texas v. United States has taken more twists and turns than I could have ever anticipated when I first started following it in November 2014. (Part of me wants to write another book about this case, but one at a time). The latest development left me speechless! I summarize the events in National Review Online, but frankly, this piece cannot do justice to what happened. Here is the introduction:

In December 2014, 26 states challenged the legality of President Obama’s executive action on immigration. Led by Texas, the states sought to immediately halt the federal government’s plans to defer the deportations of millions of aliens. Relax, the Justice Department told Judge Andrew Hanen in Brownsville, Texas. We won’t implement this program till February, the government assured the states. On that representation, Texas did not seek a temporary restraining order, and the court allowed the proceedings to stretch into February. Except it wasn’t true. By February, the Department of Homeland Security (DHS) had already granted relief to 100,000 aliens. Even worse, the Justice Department lawyers who repeatedly assured the court that nothing would be done until February knew that DHS was already granting such extraordinary relief. In an unprecedented order, Judge Hanen has now placed the Justice Department under his supervision to ensure that they act ethically. Texas had charged that DHS’s executive actions were in bad faith; now, Judge Hanen has charged that the Justice Department’s defense of those actions was also in “bad faith.” The Obama administration is certain to appeal this rebuke of its stunning actions. Even if the remedy should ultimately be modified, the undisputed facts, as Judge Hanen methodically demonstrated, show that their “conduct is certainly not worthy of any department whose name includes the word ‘Justice.’”

The long-and-short of it is that Judge Hanen has effectively placed under federal supervision Main Justice, to ensure any attorneys that practice in the 26 states that brought this suit attend an annual live ethics course on candor to the court.

First, Judge Hanen sent back to school all of the lawyers in Main Justice who litigate in the 26 states that challenged DAPA. They are required to take a three-hour legal-ethics case on “candor to the court.” And this has to be a real class taught by a “recognized ethics expert who is unaffiliated with the Justice Department,” not a “self-study or online study” course. Second, to ensure compliance, the Justice Department must appoint a person to certify annually that all attorneys who appear in the 26 states have completed the ethics course. This order will remain in effect until December 31, 2021.

Where the opinion jumps the shark, however, is that Judge Hanen requests the names and contact information all of the individuals who received expanded DAPA.

There is a fifth remedy that I frankly do not understand. The court ordered the government to “file a list of each of the individuals in each of the Plaintiff States given benefits” under DACA, including their names, addresses, and other personally identifying information. These records would remain sealed, but the states would be able to access them on a “showing by a state of actual or imminent damage that could be minimized or prevented by release of the information to one of the Plaintiff States.” This portion of the order is somewhat vague, but it would seem that Judge Hanen would allow the release of the identities of the aliens who benefited from expanded DACA if it would result in danger to the state’s interest. I am struggling to think of what would satisfy as good cause for release of this information, or why the court would even want this information. This remedy is inappropriate, and should be struck.

I suppose this information will help Texas and the other states revoke driver’s licenses, or other benefits awarded due to their grant of lawful presence. This is bizarre, and detracts from the otherwise important allegations made in the opinion.

I close with a suggestions–rather than scrambling to the 5th Circuit, Attorney General Lynch should address the matter directly to Judge Hanen in Brownsville.

At this very moment, lawyers in the Robert F. Kennedy Building on Constitution Avenue are frantically drafting an emergency appeal, or perhaps even a motion to disqualify Judge Hanen. Let me propose something different to diffuse the situation. Attorney General Loretta Lynch should personally submit a motion for reconsideration, and ask to appear before Judge Hanen in Brownsville to explain the situation. This sort of bold leadership would elevate to the highest ranks of government how important ethics and candor are, and signal to the court that this issue is being taken seriously. This will not undo the damage, but it will begin the process of restoring the justice in her Department.

DOJ screwed up here. They can attempt to rationalize it however they want, but the Holder Justice Department misled the court on a major separation of powers dispute. The ethics of the Justice Department transcend this case and this judge.

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May 19, 2016

New in National Review: “Cautiously Optimistic about Trump’s SCOTUS Shortlist”

In National Review, I write that Trump’s SCOTUS shortlist gets two cheers–my guarded optimism is due to the fact that his announcement was equivocal of whether he would actually stick with this list. As for the first two cheers, the selections are important for four main reason.

First, his list of potential nominees did not all receive their law degrees in Cambridge, Mass., or New Haven, Conn.Second, Trump did not limit his search to the usual inside-the-beltway favorites. Third, for the first time in a generation, not a single judge from the D.C. Circuit Court of Appeals — often called the second-highest court in the land — made the Supreme Court shortlist.Fourth, this geographic diversity also instills a respect for the principles of federalism: Not all of the answers to our problems will come from the seat of the central government, many will come from the “laboratories of Democracy” in the several states.

Here is the introduction:

In his dissent in last summer’s same-sex marriage case, Justice Antonin Scalia lamented that the Supreme Court is “hardly a cross-section of America.” The problem, Scalia wrote, is that the most serious questions of constitutional law are resolved by a “strikingly unrepresentative” group of attorneys from elite circles. Donald J. Trump’s list of eleven potential nominees to the Supreme Court would fix that problem. Rather than focusing on the usual shortlist of well-credentialed jurists who live along the Amtrak corridor between Boston and D.C., Trump cast a wider net to provide better representation of our constitutional culture. I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, but so long as he sticks with this list, I remain cautiously optimistic.

And here is my conclusion, which sounds a note of caution:

But I must temper my optimism with a note of caution: Mr. Trump stopped short of guaranteeing that he would pick someone from this list. In March, he unequivocally promised, “I will pick, 100 percent pick” from the list. Now, he would only say that these jurists will serve as a “as a guide to nominate our next” justice, and that the list was “representative of the kind of constitutional principles I value.” I have expressed my serious doubts about Mr. Trump’s vision of constitutional law, and this equivocal language leaves me doubting more. For now, I can only give it two cheers. If Mr. Trump wants the third cheer, he must convince us that this will not end up as a “If you like your justices, you can keep your justices” promise. This must be a promise to keep.

Indeed, after the article went to press, Trump last night tweeted that he may add new names.

This is the sort of thing that weakens any confidence I have that he will stick with his promise.

On the third point, I was struck by Politico’s interview of Larry Tribe, among others, who were surprised by Trump’s decision not to pick the usual suspects, including Judge Kavanaugh or Paul Clement

While Trump’s list pulled in five judges from various state supreme courts, he passed over some of those long considered top contenders for any future Republican Supreme Court pick, like 6th Circuit Judge Jeffrey Sutton, D.C. Circuit Judge Brett Kavanaugh and former Solicitor General Paul Clement.

“The missing names … are even more interesting than the names on the list,“ said Harvard Law Professor Laurence Tribe, once considered a top Supreme Court possibility for Democrats.

Trump’s judicial roster includes a bevy of rock-ribbed conservative jurists, many of whom have résumés in Republican politics, ties to The Federalist Society and mentors among the most conservative figures on American courts. But it’s a list designed more to limit any blowback from conservative politicians than to identify a successor to the late Justice Antonin Scalia, a bracing intellectual who dominated conservative legal thinking during his three decades on the court.

With all respect to Larry Tribe, the last time he recommended a Republican nominee to the Supreme Court was in 1987, when he used every ounce of his ability to oppose Robert Bork–a conservative legal giant from the D.C. Circuit. He then turned around to endorse a Sacramento Republican, Anthony Kennedy, whom he knew would overturn Bowers v. Hardwick. Tribe is estopped from offering any comments on the credentials Republican nominees.

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May 18, 2016

On Donald Trump’s Potential Nominees to the Supreme Court

The Trump Campaign has released eleven possible nominees to the Supreme Court. From the federal courts of appeals, he has proposed Steven Colloton (CA8), Raymond Gruender (CA8),  Thomas Hardiman (CA3),  Raymond Kethledge (CA6), William Pryor (CA11), Diane Sykes (CA7), From the state Supreme Courts, he has nominated Allison Eid (Colorado),  Joan Larsen (Michigan), Thomas Lee (Utah), David Stras (Minnesota), and @JusticeWillett (Texas).

This list impresses me for three reasons. First, five of the jurists come from the state court system. We have not had a Justice appointed from a state court since Ronald Reagan plucked Sandra Day O’Connor from the Arizona Court of Appeals. Appointing jurists from the states will implicitly reinforce the importance of federalism–and that the federal Constitution is not the end-all, be-all of laws. Second, the nominees also embody a deep respect for originalism, which was the jurisprudential theory that Justice Scalia taught to a generation of attorneys and judges. Judge Sykes ruled in an important gun case, where she undertook an effort to understand and apply the original understanding of the Second Amendment. Third, he has selected jurists who have evinced a commitment to judicial engagement, and not a rote application of judicial deference. For example, Justice Willett of Texas has written a rigorous and intellectually rich discussion of judicial protection of economic liberty. I still harbor serious doubts about Mr. Trump’s views on constitutional law, but his advisers have served him well here. I hope he stays true to these nominees, and does not subject the judicial selection process to a terrific deal.


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May 18, 2016

Event at Heritage Foundation on Thursday: The Legacy of Justice Scalia

On Thursday at noon I will be speaking at the Heritage Foundation on Justice Scalia’s Legacy. Noel Francisco will be providing the keynote address. Stephanos Bibas will be talking about Justice Scalia’s criminal procedure legacy, Rick Garnett will be talking about his religious liberty legacy, and I will talk about his separation-of-powers jurisprudence, with a special focus on the role of his dissents. It should be an excellent event, hosted by Elizabeth Slattery. It will be live-streamed, so please watch it even if you are not in the area.

Here is Heritage’s description:

On February 13, 2016, Americans lost a legal titan with the passing with Justice Antonin Scalia. Conservatives mourn the loss of a standard-bearer and liberals remember a worthy opponent. When he arrived at the Supreme Court in 1986, legislative history was considered more instructive than the text of a statute for determining its meaning and a majority of the justices thought they should weigh policy options as though they were legislators, rather than simply determining what the law required. But Justice Scalia thought otherwise. He believed that the Constitution and laws should be interpreted based on their original public meaning and based on their actual text; and this could be discerned through dictionaries from the period when the law was passed, from looking to the common law tradition, and foundational documents like Blackstone’s Commentaries to understand what things meant at the time the Framers of our Constitution drafted the language. In nearly 30 years on the Supreme Court, Justice Scalia brought about a huge shift in the law, leading to a generation of law students, lawyers, and judges who interpret the Constitution as it was written; and not how they wish it was written. Scalia’s legacy will continue to flourish. Join us at Heritage to hear from Noel Francisco, who clerked for Justice Scalia in the 1997 term, and a panel of distinguished law professors who will discuss Justice Scalia’s impact on the separation of powers, the integrity of the criminal justice process, and religious freedom.

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