Jul 23, 2014

Neighbor Stops Construction of Neighbors “Modern” House In Historic District

Under modern land-use law, cities effectively have approval over all designs to build houses, based on aesthetics. This is often an arbitrary, and daunting process, as it is very difficult to know in advance which designs will, and will not comply with the government’s tastes (unless you hire one of their preferred architects). There are serious First Amendment, Takings, and Due Process issues with these vague and nebulous standards, but they have been upheld by courts, except in some really egregious cases.

The Times has a lengthy feature about neighborly spat to stop the construction of a modern house in a historic district. Even though a design made its way through the gauntlet of the approval process, a neighbor and other concerned citizens have now held it up in court.

historic-houseIN September, Louis Cherry, an architect here, received a building permit and the necessary approvals to begin constructing a house for himself and his wife, Marsha Gordon, on an empty lot in Oakwood, a historic district in Raleigh. The neighborhood features a variety of architectural styles, from postwar bungalows to Greek Revivals, shotguns to Queen Annes. Construction began in October and the home, modern but modestly so, is nearly complete.

But it is also at risk of demolition. Not because of a tornado or termites or some other natural disaster, but because one of his neighbors doesn’t want it there.

Through a series of protracted appeals, the neighbor has been successful in getting the city to reverse its approval of Mr. Cherry’s permit. The house passed its building inspections and is 85 percent complete, yet sits empty, its future dependent on who finally wins a legal battle that never should have been allowed to happen.

Gail Wiesner, who lives across the street from Mr. Cherry — not incidentally, in a house built in 2008 — doesn’t like it in her neighborhood. In her appeal, she complained not only that the house was too modern for the area’s historical character, but also that the impact of its completion posed a threat to the community. Testifying to the Raleigh City Council, Ms. Wiesner argued that past attempts to engage in similar stylistic treachery had been made by architects who had been “churned out from a very modernist school,” and like to “show off their abilities.”

For the most part, these rebels have been prevented from building homes like this one, she continued in her public comments, but thanks only to “scrupulous, agonizing” processes.

Over a period of about four months Ms. Wiesner filed a series of appeals to the Board of Adjustment to reverse the ruling with the intent of halting construction.

A small group of Oakwood neighbors, who call themselves the Oak City Preservation Alliance, rallied to the cause. The actions of Ms. Wiesner and her allies have created “such a weird hysteria in the neighborhood,” Mr. Cherry told me. “Words like ‘holocaust’ have been used in reference to the idea that our house could inspire a rash of tear-downs which could then be replaced with modern homes. I designed my house specifically within the design guidelines of this historic district and to be compatible, a good neighbor. But the term ‘modernism’ just clicks a switch in people’s brain and they can’t see the house for what it is.”

Does this construction decrease property values?

Ms. Wiesner, who works in real estate, has also argued that having a modern house on the block will adversely affect the resale value of her own home. Here, too, Mr. Howard begs to differ: “The Cherry house doesn’t bring her property value down; in fact, it probably has a more positive affect on the neighborhood than Wiesner’s. Her house is two-thirds bungalow and one-third Victorian cottage. This is like putting strawberries and broccoli in the blender together. I love strawberries and I love broccoli, but not together.”

Those who support the construction of the house are those dastardly “libertarians.”

Some of the staunchest supporters of the Cherry-Gordon house are, says Mr. Cherry, “people who believe in property rights and are sort of libertarian.” However, those live-and-let-live types feel as if they’re in a minority. Increasingly, it seems, building a house that doesn’t fit in with your neighbor’s vision of home has become grounds for legal action, often in places emblematic of the American dream, like historic districts and gated communities.

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Jul 22, 2014

Standing to Challenge The Rewriting of Obamacare: Senator Ron Johnson edition

It wasn’t bad enough that BOTH the D.C. and Fourth Circuit decided to drop a total of 120+ pages of opinions in the tax credit case while I drifted at sea from Bayonne to Bermuda. In addition, our courts gave us a third Obamacare decision. (The Bermuda triangle? I’m sure Sissel will drop later this week).

The District Court for the District of Wisconsin dismissed Senator Ron Johnson’s complaint, filed by the Badger State’s native son Paul Clement, for lack of jurisdiction. Though the opinion is (thankfully) is only 20 pages, but there is a lot of significant discussion about standing.

First, a brief background. When Obamacare was being debated in the Senate, Senators made it abundantly clear that members of Congress, and their staff, should be subject to the same Obamacare exchanges as their constituents. They would not be able to receive the cushy plans of other federal employees. Unlike Halbig, there was fairly clear legislative history on this, as the Senate considered proposal to allow staff to participate in the exchanges, and it was rejected. Anyway, as it is wont to do, when people started complaining that the Congressional staffers would be put on the Obamacare exchanges—without any tax credits—OPM did its thing. They wrote a regulation saying that members of Congress could designate employees who would not have to go onto the exchanges.

Needless to say, OPM totally lacked the authority to do so. Zero. Zilch. Not even the pretense of statutory authority. Unlike Halbig, where at least there is a colorable argument that the IRS was acting within the scope of the statute, this is a case where the Executive clearly rewrote the statute. Remarkably, in a lengthy discussion, the District Court effectively acknowledged this fact.

Indeed, the allegations of the complaint here, which must be accepted as true at this stage of the proceedings, Navarro v. Neal, 716 F.3d 425, 429 (7th Cir. 2013), are that the executive branch has rewritten a key provision of the ACA so as to render it essentially meaningless in order to save members of Congress and their staffs from the consequences of a controversial law that will affect millions of citizens. If proven, this would be a violation of Article I of the Constitution, which reposes the lawmaking power in the legislative branch.

Believe it or not, this may be the clearest judicial statement of the Obama administration’s modus operandi—rewrite statutes to save people from the unpopular ramifications of laws it enforces. And the court did not find this “tweak” was within the President’s Article II discretions. If the allegations are “true,” it would be a “violation of Article I” and an assumption of the “lawmaking power.” This is big.

The decision continues, with references to Madison about the dangers of the executive assuming the legislative powers.

The violation alleged is not a mere technicality. It strikes at one of the most important safeguards against tyranny that the framers erected—the separation of powers. As James Madison explained in response to the objection that the proposed Constitution disproportionally distributed the powers of government:
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self- appointed, or elective, may justly be pronounced the very definition of tyranny. THE FEDERALIST NO. 47.

Tweaks to reduce the harms caused by Obamacare are not a “mere technicality.” It is an affront to the separation of powers itself. This should provide some confidence to those planning the Boehner lawsuit on the merits. Rewriting the law, outside the scope of executive discretion, is a per se violation of Article II.

But that cannot be the holding of this case, as Sen. Johnson lacks standing.

Nevertheless, absent a concrete injury to the party bringing the lawsuit, there is no “case” or “controversy” over which the courts have jurisdiction. For the judiciary to intervene under these circumstances would violate the same principle Plaintiffs seek to vindicate in their own lawsuit with far less opportunity for correction by either the other branches or the people. For all of these reasons, the dispute must be left to the “Nation’s elected leaders, who can be thrown out of office if the people disagree with them.” Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2579 (2012). “It is not our job to protect the people from the consequences of their political choices.” Id.

The rest of the decision addresses numerous arguments concerning Article III standing. Here I’ll highlight a few of the most salient discussions.

First, Johnson and his staffer argue that he suffers an injury because he is participating in an “unlawful” scheme. Even though the court acknowledged that, if the allegations are true (and they are) the scheme is unconstitutional, he is not willing to assert that the violation to the Constitution, in and of itself, is an injury for purposes of Article II.

Plaintiffs also argue that they experience injury even if there is no actual administrative burden because the very act of classifying employees forces them to participate in a scheme they view as unlawful. This argument is unpersuasive for at least two reasons. First, it puts the cart before the horse. The question of the legality of the regulation has not been determined yet; although Plaintiffs believe the regulation is unlawful, such a belief cannot be enough to create standing because that would open the door to any uninjured party who had a generalized grievance with a government regulation. Under such an approach, there would be no principled limit on standing because a plaintiff need only allege a belief that the challenged regulation is illegal. Valley Forge Christian Coll. v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 485 (1982) (“Although respondents claim that the Constitution has been violated, they claim nothing else. They fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees.”) In short, one’s personal belief that a regulation is unlawful is not itself an “injury” sufficient to confer standing.

This argument strikes me as problematically circular. If you read Coleman v. Miller in light of Raines v. Byrd, a violation of the separation of powers that results in a “nullification” of the legislative vote can be, by itself, an injury for purposes of Article III. (More on that later, as I’m working on something on point). With the right case, this theory would offer a grounds for standing based on an injury to the separation of powers. Though, this is not that case.

The Court also addresses an argument raised by amici—if the court doesn’t fix this case, no one will, and the President can continue to act unlawfully.

Finally, it is necessary to address an argument advanced primarily by the amici curiae. In short, they argue that if these Plaintiffs do not have standing, then there will be no recourse to stop the Obama Administration from ignoring the laws Congress passes and from exceeding its authority in other ways. They portray the OPM rule as just one more example of an administration that has on multiple occasions usurped the powers entrusted to Congress by rewriting or amending laws the Congress has passed or simply refusing to enforce them. If the courts—a co-equal branch of government—do not step in, amici argue, then there will be no check on executive authority.
First, there is nothing in the Constitution stipulating that all wrongs must have remedies, much less that the remedy must lie in federal court….
Second, as the above quotation also makes clear, it is not true that the courts are the only remedy for the Administration’s alleged unlawfulness. The Congress itself is surely not helpless to rein in the executive: it has spending authority, investigative powers, and it even wields the blunt instrument of impeachment; it has the power to pass, delay, or kill initiatives the executive branch might propose; and it may delay or thwart consideration of executive branch nominees .… In sum, the fact that the allegations advanced in this action might be difficult or even impossible to pursue in federal court for any other plaintiffs does not mean that these Plaintiffs have suffered the kind of injury that could give rise to standing.

This discussion raises the important issue of proportionality, that was addressed at some length by Elizabeth Price Foley during her testimony last week before the House. What is a proportional response by Congress for a violation of Article II. Let’s consider each item identified by the court. With respect to the “spending authority,” Congress made a deliberate decision in 2009 not to spend money for staffers to receive federal health benefits. The President’s rewriting, and suspension of the law, disregarded that authority. So much for that. The “investigative powers” would reveal that OPM issued this regulation, without even the pretense of authority, and is damn proud of it. Not much help there, with such an open, flagrant violation of the law. Impeachment is certainly a “blunt” instrument, that is totally out of whack to this significant, but fairly minor scale violation of the Constitution.

Repeated efforts to “pass, delay, or kill” executive branch initiatives have only emboldened President Obama to take further unilateral executive action. This is the Catch 22 of congressional intransigence and executive power. The more Congress thwarts the President, the more he exercises “self help” and takes matters into his own hand. In sum, the issue of proportionality, with respect to the various remedies Congress has at its disposal, renders the suspension and rewriting of the law a unique type of constitutional injury.


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Jul 22, 2014

Video: Harlan Institute’s FantasySCOTUS Featured in USA Today

Check it out here:

FantasySCOTUS is a fantasy supreme court league that allows users to submit their own briefs in the form of blog posts. These briefs are then judged by members of the Harlan Institute, a non-profit dedicated to expanding citizens’ knowledge of our nation’s most fundamental laws. A select group of players moves to the next round where teams present oral arguments on Google+ Hangout. This is judged by members of the Harlan Institute and ConSource, an online library featuring constitutional history.


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Jul 22, 2014

Counting Votes in Halbig and King

While the D.C. Circuit invalidated the rule by a 2-1 vote, a unanimous 4th Circuit panel upheld the rule, the votes were more complicated.

Judges Edwards (CADC) and Davis (CA4)  found the tax credits unambiguously apply to the federal exchange.
Judges Gregory and Thacker (CA4) found the statute ambiguous, and through Chevron step 2, deferred to the IRS.
Judges Griffith and Randolph (CADC) found that the statute unambiguously blocks the tax credits for the federal exchanges.
In a bit of a flashback, Judge Davis was on the CA4 panel that decided Liberty University v. Geithner. He was the only judge who reached the commerce clause issue and found the ACA’s mandate. constitutional on those grounds. Likewise, Judge Edwards was on the D.C. Circuit panel that unanimously upheld the ACA’s mandate.
This is going to be fun with competing cert petitions an en banc petitions. Even if the SG files a petition for rehearing en banc, and opposes the 4th Circuit cert petition, I suspect there are 4 votes on the Court (the NFIB dissenters) who would want to grant cert, before this issue fully percolates.


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Jul 22, 2014

Halbig, “Legislative Supremacy,” and the Boehner Law Suit

The gravamen of the complaint in Halbig, and the imminent Boehner lawsuit, is that the Administration unilaterally rewrote provisions of the Affordable Care Act that are clear, because they would generate results the Administration did not like, and Congress was in no position to fix the law.

The Court in Halbig rejected that, citing a presumption of “legislative supremacy.”

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges. Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacate the IRS Rule.

Tea leaves.

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Jul 22, 2014

Halbig Appeal Timing

As I noted in an earlier post, the United States will go for en banc review on the nuclear panel. The 4th Circuit plaintiffs will almost certainly go for certiorari. This presents an interesting timing issue, and a race for the Court house.

I suspect the plaintiffs will file for certiorari first. If the government files a petition for en banc, I suspect the plaintiffs to ask the D.C. Circuit to put en banc on hold while the certiorari petition is pending. That would have the result of preventing the D.C. Circuit from vacating the panel opinion–which would have the result of killing the Circuit split.

In any event, the Court should have a cert petition on its docket this fall. Then, the government could oppose cert, by asking the Court to delay its resolution pending the D.C. Circuit’s en banc proceedings. Thus, the Court can deny certiorari on King (4th Circuit case) and wait for Halbig. Oh what fun!

It’s so rare that a Circuit split forms in one day.

Update: Let’s think about the timing this way. Let’s assume that the plaintiffs file a cert petition in the next week or so. The following week the United States files a petition for rehearing en banc. The plaintiffs will reply that a cert petition is pending, and the en banc proceedings should be put on hold pending resolution of the cert petition. The government will certainly raise the en banc petition in their opposition to cert. But, the plaintiffs can say, if the Court denies certiorari from the 4th Circuit, then the en banc proceedings can continue in the D.C. Circuit. If the Court grants certiorari, then there is no point in the D.C. Circuit granting en banc review bc the Justices will go for it. Really, there is no point in the D.C. Circuit considering en banc, or even vacating the panel decision, if the Court takes it. That is, unless the D.C. CIrcuit sua sponte grants en banc–without the need for briefing–and vacates the opinion. I think that outcome is unlikely.

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Jul 22, 2014

To Save the ACA, the Supreme Court Will Have to Rewrite It. Again.

Judge Griffith’s opinion for the D.C. Circuit boiled down to one point–he was not willing to rewrite the ACA to save it.

The point is that we don’t know, and in asking us to ignore the best evidence of Congress’s intent—the text of section 36B—in favor of assumptions about the risks that Congress would or would not tolerate—assumptions doubtlessly influenced by hindsight—the government and dissent in effect urge us to substitute our judgment for Congress’s. We refuse. As the Supreme Court explained just this term, “an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” UARG, 134 S. Ct. at 2446. And neither may we. “The role of th[e] [c]ourt is to apply the statute as it is written—even if we think some other approach might ‘accor[d] with good policy.’” Burrage v. United States, 134 S. Ct. 881, 892 (2014) (quoting Comm’r v. Lundy, 516 U.S. 235, 252 (1996)) (third alteration in original); see also Lewis v. City of Chicago, 560 U.S. 205, 217 (2010) (“[I]t is not our task to assess the consequences of each approach [to interpreting a statute] and adopt the one that produces the least mischief. Our charge is to give effect to the law Congress enacted.”); United States v. Locke, 471 U.S. 84, 95 (1985) (“[T]he fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do.”).

This has to be a not-too-veiled note to the other Court down Constitution Ave. Then again, rewrite the statute is exactly what Chief Justice Roberts did, twice. First, to treat the mandate as a tax, and second to totally rework the Medicaid expansion. Only time will tell if the Court is willing to rewrite the ACA one more time. Ditto for the other lingering bomb, Sissell, and the origination clause challenge.

A related issue–will the Court (Roberts) be willing to “gut” the ACA with adverse consequences to millions. As I noted many times during my talk: John Roberts wasn’t willing to kill Obamacare in 2012 when no one was relying on it. Why would he do so in 2015 when millions are relying on it: For this, perhaps Judge Griffith will be right, or wrong:

We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly. But, high as those stakes are, the principle of legislative supremacy that guides us is higher still. Within constitutional limits, Congress is supreme in matters of policy, and the consequence of that supremacy is that our duty when interpreting a statute is to ascertain the meaning of the words of the statute duly enacted through the formal legislative process. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed, life-tenured judges. Thus, although our decision has major consequences, our role is quite limited: deciding whether the IRS Rule is a permissible reading of the ACA. Having concluded it is not, we reverse the district court and remand with instructions to grant summary judgment to appellants and vacate the IRS Rule.


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Jul 22, 2014

In case you weren’t busy enough, a District Court threw our Sen. Ron Johnson’s Obamacare Suit

The opinion is here.

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Jul 22, 2014

With A Circuit Split, Halbig Will Go to the Supreme Court

The D.C. Circuit found that the IRS’s tax credit rule was invalid. On the same day (seemingly a few hours later), the 4th Circuit upheld the rule. While the government has every interest to bring this case before the nuclear en banc D.C Circuit, the plaintiffs in the 4th Circuit have every incentive to file a cert petition with haste. (Mike Carvin of Jones Day filed and argued both cases). And I’m fairly certain the cert petition is ready to roll. And it should be filed in time for a conference this fall.

At the moment, I am on a cruise somewhere between Bayonne and Bermuda, and internet access is quite costly at $.41 per minute. I will read the opinion offline and upload some thoughts later. Stay tuned.

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Jul 22, 2014

Highlights from the Clinton Archives for the RBG Nomination

There are some gems here. It seems RBG was steadfast in not backing away from her record, and she spoke critically of Justice Souter’s circuitous answer,s which she said “demeaned” himself.

First, she offers a “stalwart defense of the ACLU”:

When asked about her support for ACLU policies to legalize prostitution, decriminalize the distribution of pornography to minors, decriminalize marijuana, and ban the death penalty, Judge Ginsburg has a strong tendency to defend the ACLU position. She has an instinct for defending some rather extreme liberal views on these questions. She also relishes defending the ACLU as an institution, and its importance in American society.

Second, she rejects the “Souter approach” and prefers the Bork answers!

When shown videotapes of confirmation hearing answers by Judges Souter and Bork to similar questions, Judge Ginsburg’s reaction has been that JUdge Souter “demeaned” himself in giving “political” answers, while Judge Bork was “unjustly crucified” for his “candid” responses. Her answering style is more akin to Bork than Souter: her answers tend to be legalistic and doctrinal — even when dealing with crucial issues -~ rather than conveying core values.

Third, she has a “disdain for confirmation process:

At the same time, Judge Ginsburg believes that Judge Souter answered “too many” questions of the Committee about specific legal issues — like religious freedom and free speech and intends to be less responsive than he was in an effort to “restore dignity•i to the confirmation process. Her hostility to the process — to the Committee’s “victimizing” of Judge Bork (on the one hand) and Anita Hill and Lani Guinier (on the other) — is evident. She believes (and may publicly state) that the current process should be replaced by the one used for Chief Justice Burger: a one-hour hearing with no substantive questioning.

Fourth, RBG is too direct in discussing her opinions, and doesn’t speak to “core values.”

When asked a specific question about a prior decision G,.r writing,· Judge Ginsburg seems unable (or unwilling) to reassure that questioner’s underlying concerns, and instead, seems set on answering the specific charge (or, more often, nitpicking some aspect of the question’s premise). As noted above, the Judge has trouble addressing larger issues and speaking to core values.

Fifth, they doubt RBG’s “style.”

And finally, Judge Ginsburg’s technique — her failure to make eye contact, her halting speech, her “laconic” nature (to use Jim Hamilton’s phrase) -~ is not helpful.

There is no way a President would nominate RBG today. She wants to be “independent.”

You should be cautious in dealing with her on these and other points. Judge.Ginsburg views the White House’s interest and her interests as being.at odds with each other: she sees us as having a stake in presenting.her as a moderate and in getting along well with the Senate; she s.ees her interests as “being herself,” preserving her “digniti’,” and promoting her “independence.”

Also, Marty Ginsburg (RBG’s husband), recommended potential witnesses for her confirmation hearing. Gunther, and not Tribe, is the top ConLaw scholar in America.

Gerald Gunther — Professor of Law at Stanford and probably the leading constitutional law scholar in America (some would say Larry Tribe but I would not).

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Jul 22, 2014

Acquisition by Find: Ring Lost 60 Years Ago Turns Up In Dry Texas Lake

In Property, one of the first topics we cover is acquisition by finding stuff. A number of the cases tease out the vagaries of what happens if an object is mislaid, abandoned, buried in the ground, and then discovered. One case is South Staffordshire Water Co v. Sharman (Queen’s Bench 1896). In short, the owner of property asked someone to clean out a pool of water. The cleaner found two rings stuck in the mud at the bottom of the pool. So who owns it? The person who finds it, or the person who owns the land? The court found that the owner of the land in question (“locus in quo”) gets the rings. “The possession of land entitles possession of everything attached to land, in absence of better title.” This is true if the land owner isn’t even aware of the items existence.

Now, we have an almost perfect analog to this case. An 84-year old woman, who lost her 1953 university class ring, six decades ago. And remarkably, it wound up in a dry lack in Lubbock!

Elizabeth Clark lost her Howard Payne University class ring in 1954 in Lake Nasworthy near San Angelo when she and her future husband went for a picnic and to wade into the water.

After years of drought, the ring revealed itself in the bed of the lake and was found by a Texas woman in March.

Clark’s daughter says the ring means the world to her mother because she worked so hard to become the lone child out of 16 to finish college.

The ring will be returned to Clark at a family reunion Friday near Lubbock.

Now, in this case, the true owner was ascertained, so it could be returned to her. But otherwise, the finder, or the property owner, could also assert title.


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Jul 22, 2014

Justice Kennedy’s “Historical Defense” Heller and the 2nd Amendment

During his remarks at the 9th Circuit Judicial Conference, Justice Kennedy apparently spoke about D.C. v. Heller, for which he provided the key 5th Vote. Correct me if I’m wrong, but I can’t recall him ever speaking about the 2nd Amendment before. Anyway, here is a writeup by Bob Egelko:

He then proceeded to a brief, historical defense of Scalia’s 2008 ruling that overturned a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual’s right to possess at least certain firearms at home.

The Second Amendment, ratified along with the rest of the Bill of Rights in 1791, had been interpreted by the court as late as 1939 to protect only the right to bear arms in a “well-regulated militia.” But Kennedy observed that constitutional understanding can change over time — for example, the 1896 ruling in Plessy vs. Ferguson, which upheld segregation in public transportation as “separate but equal,” wasn’t overturned by the court until the 1954 Brown vs. Board of Education decision, which outlawed school segregation and mandated equal treatment of the races under the Fourteenth Amendment.

By the same token, he said, some critics have claimed that the decades, or the centuries, it took the court to declare an individual right to keep and bear arms “means that it doesn’t exist.”

“I’m not so sure,” said Kennedy, who was part of Scalia’s 5-4 majority in the 2008 ruling.

Huzzah. Now, grant certiorari on a Second Amendment case already.

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Jul 21, 2014

Questions President Clinton should NOT ask Judge Breyer?

Ron Klain provided a memo to Bernie Nussbaum, listing questions that President Clinton should *not* ask Judge Breyer:

What is your view on the constitutionality of the death penalty?

Do you agree with Bakke v. Regents of California, or Roe v. Wade?

What test would you use to determine when an Establishment Clause violation has occurred?

How do you define the “right to privacy?”

When can race-conscious remedies be used under the civil rights laws?

Here are the questions the President *should* ask:

What guides your overall constitutional philosophy? Breyer will likely speak of “human dignity” and a need to take a non-literal view of the Constitution’s phrases.

How do you define the scope of liberty in the Constitution? Breyer will talk about the need to balance the text’s language with an expansive view of liberty.

Why have you devoted your career to the dry subject of economic regulation? Breyer will discuss how these regulatory issues touch people’s lives.

Some say that your writings suggest an over-emphasis on economics: putting a cost on lives, for example. Breyer will talk about the limits of economic analysis, and the need to make hard choices among safety options.

How does he respond to the criticism that his opinions are “bloodless”? Breyer will discuss he admiration for John Minor Wisdom, who had a similar writing style.

How do you deal with your Republican colleagues on the bench? Breyer will talk about how he goes about persuading them to join him in cases~ • You are the architect of the Sentencing Guidelines.

How do you defend them from criticism? Breyer will speak of how he “did good” by fighting “worse” versions of the Guidelines.

What are the most significant Supreme Court decisions in your lifetime? Breyer will cite a variety of cases involving civil rights and personal liberties.

Who are the great Justices in history? Breyer will cite a variety of Justices, past and present.

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Jul 20, 2014

Decision in Gascho v. Global Fitness Holdings, LLC (S.D. Ohio)

I previously blogged about a class action objection I filed in Gascho v. Global Fitness Holdings, LLC (S.D. Ohio) (see herehere, and here). The District Judge adopted the Magistrate’s Report and Recommendation, and ruled against our claim. You can view the Final Judgment, the Final Opinion approving the Settlement, and the Final Approval Order.

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Jul 19, 2014

What is the cause of action for a violation of a nondiscrimination executive order?

MetroWeekly reports that the President will amend Executive Order 11478 to prohibit discrimination against transgender federal employees. The Executive Order basically sets out goals and guidances, and urges heads of departments to allocate resources to prevent discrimination. But what would the cause of action be if a federal employee was discriminated on this basis? I think the answer has to be none. As a practical matter, if a federal agency discriminates based on any of the protected bases, with the exception of gender identity, a suit could be brought under Title VII. But, for these two cases, no litigation could commence. Unless the President decides to create a federal cause of action through an executive order.

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Jul 18, 2014

Administration, Citing “States’ Rights,” Opposes Amendment To Restrict Marijuana Legalization in District of Columbia

The Administration’s policy statement, opposing an Amendment that would block funding for marijuana legalization in the District of Columbia, cites states’ rights:

 The Administration strongly opposes language in the bill that restricts D.C. from using its local funds for abortion services, undermining the principle of States’ rights and of District home rule. Longstanding Federal policy already prohibits Federal funds from being used for abortions, except in cases of rape or incest, or when the life of the woman would be endangered. Similarly, the Administration strongly opposes the language in the bill preventing the District from using its own local funds to carry out locally- passed marijuana policies, which again undermines the principles of States’ rights and of District home rule. Furthermore, the language poses legal challenges to the Metropolitan Police Department’s enforcement of all marijuana laws currently in force in the District.

Citing federalism to allow a federal enclave to enact local laws that are preempted by federal criminal laws. How John C. Calhoun! And yes, marijuana is still an illegal controlled substance, regardless of whether people think it should or should not be.

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Jul 17, 2014

Regulation by Blog Post: HHS Determines that Puerto Rico Not “State” For Purposes of Obamacare

Under the Public Health Service Act, the word “state” is meant to include U.S. territories, such as Puerto Rico and the U.S. Virgin Islands. HHS has long deemed the territories to be subject to the same requirements as the states. But no longer. In a letter from our good friend Marilyn Tavenner at HHS, we learn that after a “careful review” the territories will no longer be deemed a state, and will not be subject to Obamacare requirements that will “underminin[e] the stability of the territories’ health insurance markets.”

Currently, the Department uses the existing Public Health Service Act (PHS Act) definition of “state” for new PHS Act requirements and funding opportunities included in title I of the Affordable Care Act. Under this definition, the new market reforms in the PHS Act apply to the territories. We have been informed by representatives oft he territories that this interpretation is undermining the stability o f the territories’ health insurance markets. After a careful review of this situation and the relevant statutory language, HHS has determined that the new provisions of the PHS Act enacted in title I are appropriately governed by the definition of “state” set forth in that title, and therefore that these new provisions do not apply to the territories. This means that the following Affordable Care Act requirements will not apply to 1 individual or group health insurance issuers in the U.S. territories:

What justified this “careful review”? Absolutely no reasoning, whatsoever. Stay tuned Marilyn tells us:

The Centers for Medicare & Medicaid Services (CMS) intends to issue regulations to affirm this interpretation and eliminate any text in the existing rules that is inconsistent with this interpretation (e.g., the definition of”state” that includes territories set forth in the rate review regulations at 45 CFR 154.102). Pending the completion of such rulemaking, CMS will apply this interpretation and will not subject health insurance issuers in the territories to the Affordable Care Act requirements at issue.

I’m sure the rulemaking will go something like this. Because applying these rules to the territories will disrupt the market, we interpret states, not to mean territories, regardless of what the statute says. An HHS spokesperson just announced the statute would be rewritten.

But don’t worry. This redefinition of a territory will *only* apply to this provision of the ACA, and nothing else.

Our analysis applies only to health insurance that is governed by the PHS Act. It does not affect the PHS Act requirements that were enacted in the Affordable Care Act and were incorporated into the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code (Code) and apply to group health plans (whether insured or self-insured), because such applicability does not hinge on, or rely upon the term “state” as it is defined in either the PHS Act or in the Affordable Care Act. Similarly,it also does not affect the PHS Act requirements that were enacted in the Affordable Care Act and apply to non-federal governmental plans. As a practical matter, therefore, PHS Act, ERISA, and Code requirements applicable to group health plans continue to apply to such coverage and issuers selling policies to both private sector and public sector employers in the territories will want to make certain that their products comply with the relevant Affordable Care Act amendments to the PHS Act applicable to group health plans since their customers- the group health plans- are still subject to those provisions. Group health plans remain subject to those provisions of the PHS Act that were enacted in the Affordable Care Act, including, inter alia, the prohibition on lifetime and annual limits (PHS Act section 2711), the prohibition on rescissions (PHS Act section 2712), coverage of preventive health services (PHS Act section 2713), and the revised internal and external appeals process (PHS Act section 27 I9)

So in other words, HHS is only rewriting the statute where it causes inconveniences.

Also, territories that do not comply are not required to return any funds conditioned on complying! They just can’t get any more money

Because this interpretation applies prospectively, territories will not have to pay back to the federal government any grants that have been spent by the territories as of the date of this letter, such as those provided for rate review (section 2794 of the PHS Act) and for consumer assistance (section 2793 of the PHS Act). However, all unspent grant funding must be returned to CMS, because the interpretation of the law making the territories eligible to expend such funds is no longer in place.

There you have it. Regulation by letter, blog post, or whatever.

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Jul 17, 2014

Regulation by Blog Post: Department of Labor Announces Requirement That Hobby Lobby Must Disclose To Employees That Contraceptions Are Not Covered

In the latest regulation by blog post, titled Part XX of the Department of Labor’s FAQs about the ACA Implementation, we learn that all “closely held for-profit corporations” that do not provide certain contraceptions must provide notice to their employees. Here is the new law.

Disclosure with respect to Preventive Services

Q: My closely held for-profit corporation’s health plan will cease providing coverage for some or all contraceptive services mid-plan year. Does this reduction in coverage trigger any notice requirements to plan participants and beneficiaries?

Yes. For plans subject to the Employee Retirement Income Security Act (ERISA), ERISA requires disclosure of information relevant to coverage of preventive services, including contraceptive coverage. Specifically, the Department of Labor’s longstanding regulations at 29 CFR 2520.102-3(j)(3) provide that, the summary plan description (SPD) shall include a description of the extent to which preventive services (which includes contraceptive services) are covered under the plan. Accordingly, if an ERISA plan excludes all or a subset of contraceptive services from coverage under its group health plan, the plan’s SPD must describe the extent of the limitation or exclusion of coverage. For plans that reduce or eliminate coverage of contraceptive services after having provided such coverage, expedited disclosure requirements for material reductions in covered services or benefits apply. See ERISA section 104(b)(1) and 29 CFR 2520.104b-3(d)(1), which generally require disclosure not later than 60 days after the date of adoption of a modification or change to the plan that is a material reduction in covered services or benefits. Other disclosure requirements may apply, for example, under State insurance law applicable to health insurance issuers.

I don’t think “Accordingly” means what the government thinks it means. It’s unclear what shape this notice must take, and what this notice must say. Hobby Lobby. Go figure this out! More from WSJ.

Update: It seems that Senate Democrats have introduced a bill that would require corporations to give such notice.

The Preventive Care Coverage Notification Act, sponsored by Sens. Dick Durbin (D-Ill.) and Mark Begich (D-Alaska), would require the government to develop standards that would require businesses to tell workers whether they offer contraception coverage in their health plans.

“This bill ensures that employees have the information they need to make smart decisions,” said the lawmakers. “At the very least, we cannot stand by and allow young women or single moms to take a job expecting to get the basic insurance coverage that the law requires, only to find out too late that the corporation is denying her that coverage.”

The legislation specifically says companies should disclose what services guaranteed under the law they won’t cover, including contraception. It does not apply, however, to religious employers and other nonprofit religious organizations that have received an exemption or accommodation for their coverage limitations.

But who needs laws when you have executive power. Really, one hand of the Leviathan should talk to the other hand.

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Jul 17, 2014

An Update on the #AspenGate and Dukeminier & Krier (8th Edition)

After I declared a partial victory in #AspenGate, I decided to stay with the 7th edition of the excellent property book, Dukeminier & Krier. My plan was to stick with the old edition for a semester, see how things go with the 8th edition, and maybe update it next year. That turned out not to be possible. My campus book store informed me that it was impossible to obtain any new copies of the 7th edition, and he could only obtain 50 used copies (I have 125 students in my two sections). My Aspen rep confirmed this. The market for used books will soon dry up. Rather than leaving my students to the mercy of buying used books on Amazon, I reluctantly agreed to move up to the 8th edition.

To make things fair, I asked my book store to stock *both* the traditional print version that you can keep ($223 with the ISBN of 9781454851363) and the “casebook connect” version that you rent ($182 with the ISBN of 9781454837602). At least students will have the option of how they wish to proceed. I encourage adopters of this book to ask their book stores to do the same.

I also asked the book store to add a sign with this note in front of the books, which I will also add to my syllabus.
Please note that if you purchase the Casebook Connect version (the print version and the digital version), you are not buying the book to keep, but only renting it. According to the terms of the license, you do not own the book, and are required to return the book when you are finished with it. You will not be able to resell it, as you are only leasing the book. If you will not use the electronic version, and plan on reselling your book, or want to keep it, you may considering buying the traditional print version, at a higher price. For more information, please see the attached article from the ABA Journal.
Everyone else is welcome to use similar language to your syllabus. Students should be aware of their options.

I think students will appreciate it. One of my former students who saw the ABA Journal article sent me this kind note:

 I appreciated your paying attention and taking the time to inject your logic. Books are a keystone to education (of all kinds) and it’s nice of you to stick up for us. While I pay cash for my books (and my tuition), your point about school loans was well taken last semester. I have friends who are borrowing money to pay for books. Your attention to books prices was greatly appreciated by all of us as a class. We did notice.

Professors should all remain vigilant on this front.

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Jul 17, 2014

My FedSoc SCOTUSCast on Lane v. Franks

You can listen to my post-argument SCOTUSCast on Lane v. Franks, an interesting qualified immunity case.

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