Mar 5, 2015

SG Cites Scalia/Garner Book As “Learned Treatise” During Oral Arguments in King v. Burwell

During oral arguments in King v. Burwell, Solicitor General Verrilli made an oblique reference to a “learned treatise” concerning a statutory canon concerning how courts should read tax deductions:

Your Honor raised this point about the need for clarity in ­­ in a tax deduction and IRS in the  statutory reading of tax deductions, there is a learned treatise that describes that as a false notion.

Who are the authors of that “learned treatise”? Why, Justice Scalia and Bryan Garner. The 63rd principle listed makes this exact point:

63. The false notion that tax exemptions— or any other exemptions for that matter— should be strictly construed. …

United States Supreme Court cases often set forth a requirement of a higher-than-normal level of clarity to support an exemption from taxation. This is variously expressed as a rule that “exemptions from taxation are to be construed narrowly,”1 that they must be “unambiguously proved,”2 that they “are not to be implied,”3 and that doubts regarding them “must be resolved against the taxpayer.”4 Yet many Supreme Court cases denying an exemption make no mention of this rule,5 and even some cases granting an exemption ignore it.6

But whatever the worthy or unworthy origins of the rule that exemptions from taxation are to be strictly construed, we agree with the Supreme Court opinions ignoring it.18 Like any other governmental intrusion on property or personal freedom, a tax statute should be given its fair meaning, and this includes a fair interpretation of any exceptions it contains. So when one statutory provision imposes a categorical tax, any exception assertedly imported by another provision must be clear. But it can be clearly implied no less than clearly expressed, and the terms of the exception ought to be reasonably, rather than strictly, construed.

Scalia, Antonin; Garner, Bryan A. (2012-07-05). Scalia and Garner’s Reading Law: The Interpretation of Legal Texts (Kindle Locations 5055-5059). Thomson West. Kindle Edition.

Well played SG, well played.


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Mar 5, 2015

Did the DOJ Mislead Judge Hanen About Implementation Date for Expanded DACA?

On Wednesday, shortly after Texas filed its brief opposing the government’s motion for a stay, the United State filed a strange “Advisory” with the court. In short, even though the government represented that no new relief would be issued under the November 20, 2014 memorandum until February 18, 2015 (two days after the preliminary injunction was issued), it turns out that the administration deferred the deportations for 100,000 aliens for a period of 3 years (the previous policy was limited to 2 years).

Out of an abundance of caution, however, Defendants wish to bring one issue to the Court’s attention. Specifically, between November 24, 2014 and the issuance of the Court’s Order, USCIS granted three-year periods of deferred action to approximately 100,000 individuals who had requested deferred action under the original 2012 DACA guidelines (and were otherwise determined to warrant such relief), including the issuance of three-year EADs for those 2012 DACA recipients who were eligible for renewal. These pre-injunction grants of three-year periods of deferred action to those already eligible for 2012 DACA were consistent with the terms of the November Guidance. Deferred Action Guidance at 3; see also Neufeld Decl. ¶ 12 n.6 (“Pursuant to the November 20, 2014 memo issued by Secretary Johnson, as of November 24, 2014, all first-time DACA requests and requests for renewal now receive a three- year period of deferred action.”) [ECF No. 130-11].

DOJ says this may have led to “confusion.” You think?

Defendants nevertheless recognize that their identification of February 18, 2015, as the date by which USCIS planned to accept requests for deferred action under the new and expanded DACA eligibility guidelines, and their identification of March 4, 2015, as the earliest date by which USCIS would make final decisions on such expanded DACA requests, may have led to confusion about when USCIS had begun providing three-year terms of deferred action to individuals already eligible for deferred action under 2012 DACA.

What makes this late admission so stunning–after all of the briefs had been filed and the injunction was issued–is that the DOJ consistently represented that no new relief had been issued under the November 20, 2014 memorandum. On that basis, Texas and the Court proceeded under the assumption that the status quo would be maintained until February 18, 2015. Now, we see that this wasn’t the case.

In response, Texas admits it was “surprised” by this late representation:

This is surprising to Plaintiffs, as Defendants had represented on sev- eral prior occasions that USCIS would not consider requests for deferred action under that memorandum until at least February 18, 2015.

Plaintiffs find themselves hard-pressed to reconcile Defendants’ past represen- tations with Defendants’ actions as reported in their advisory.

In its brief, Texas offers a helpful timeline of all the times the DOJ made clear they would not implement any of the programs, authorized by the November 24, 2014 memorandum until February 18. In particular, on January 14, DOJ stated that “Plaintiffs will not be prejudiced” by the extension “because U.S. Citizenship and Immigration Services (USCIS) does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015.”

During oral arguments on January 15, the DOJ again repeated that none of the expanded programs would go into effect before February 18.

MS. HARTNETT: In that document [Defendants’ January 14 motion for extension of time] we reiterated that no applica- tions for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of Feb- ruary, and that no action would be taken on any of those ap- plications until March the 4th. …

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.

MS. HARTNETT: For revised DACA, just to be totally clear.

Revised DACA extended the window from 2 years to 3 years.

It was on this basis that the court ruled. As Texas explains:

This newly disclosed conduct is difficult to square with Defendants’ prior rep- resentation to the Court that “nothing is going to happen” until weeks after the pre- liminary-injunction hearing. Hr’g Tr. at 134. Likewise, Plaintiffs do not understand why Defendants do not consider their implementation of Expanded DACA to be “granting” or “entertaining requests” for deferred action under the challenged DHS Directive. After all, Original DACA provided only for two-year relief; it is only Ex- panded DACA that provided for the three-year relief that Defendants granted to 100,000 aliens. Moreover, Defendants’ advisory contains no details about how many of the aliens who received Expanded DACA relief applied for some form of DACA during the time period at issue, or the extent to which those applicants formally or informally requested or were told they would receive Expanded DACA relief.

It is really, really difficult to see how DOJ could make such representations.

The advisory also contains no details about whether Defendants and their counsel understood that USCIS was affording Expanded DACA relief, and what in- structions were given to USCIS in that regard before Defendants made representa- tions to the Court and to Plaintiffs.

The 3-year renewals were directly authorized by the November 20, 2014 memorandum. Either (a) Ms. Hartnett didn’t know about the fact that 100,000 applications were granted, (b) or she was not forthcoming with the court. If it is the former, then there is a serious breakdown in DOJ’s ability to defend this law. If it is the latter, the court should order a ruling to show cause, and give her an opportunity to explain why she made this representation. A trip back to Brownsville would be very salutary.

To pursue this, Texas asks the Court for leave to request discovery from the government concerning the extent to which they failed to comply with their representations in court.

Because the nature and extent of those actions inform remedies Plaintiffs may pursue, related to both Defendants’ past representations and to their current compliance with the prelimi- nary injunction, Plaintiffs move for early discovery focused on the subject.

What are they looking for?

At present, the record is not sufficiently developed to draw firm conclusions about the nature and extent of the actions Defendants took to implement Expanded DACA while litigating this case. The need to clarify the record in that regard, given the substantial questions raised by the difficulty of squaring Defendants’ representa- tions in this case with their newly disclosed conduct, is good cause to allow early dis- covery into that limited matter.

There is at least a substantial possibility that the facts revealed by early dis- covery would prompt Plaintiffs to pursue remedies related to Defendants’ represen- tations and actions. Plaintiffs have proceeded in this litigation based on their under- standing, from Defendants’ representations, that neither DAPA nor Expanded DACA would be implemented until February 18, 2015. Had Plaintiffs known that Defend- ants began granting Expanded DACA relief as soon as the DHS Directive was prom- ulgated, they would have explored seeking a temporary restraining order to block that implementation of the Directive. This, in turn, would have avoided any need to litigate potential remedies now. Likewise, Plaintiffs may have requested discovery from Defendants, in the context of the motion for preliminary injunction, to explore the manner in which Defendants were implementing Expanded DACA, as that might be relevant to their standing and irreparable-harm arguments. Good cause exists to authorize limited early discovery.

Any such discovery would be very useful for a future contempt hearing, as well as for the appeal.

Byron York has much more here. For full disclosure, I filed an amicus supporting Texas.

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Mar 4, 2015

The SG Should Not Have Said “Well, this Congress, Your Honor”

One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.

We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­


You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.

Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.


After the laughter, Verrilli dug his hole deeper.

GENERAL VERRILLI: You know, I mean, of course, theoretically ­­ of course, theoretically they could.

This was also said with a slight chuckle.

Justice Scalia, who seemed visibly offended by this comment, replied sharply.

JUSTICE SCALIA: I ­­ I don’t care what Congress you’re talking about. If the consequences are  as disastrous as you say, so many million people  without ­­ without insurance and whatnot, yes, I think this Congress would act.

I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.

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Mar 4, 2015

Federalism, The Avoidance Canon, and the Remedy

When the D.C. Circuit invalidated the IRS Rule in July, if I had told you that Justice Sotomayor would be pressing Mike Carvin on the principles of federalism, you would have thought I was crazy. And after oral arguments, here we are. The federalism argument goes something like this: in order to avoid potential coercion problems, whereby states are “forced” to choose between establishing exchange or triggering a death spiral, the Court should vote to uphold the Rule, even if it it unambiguously limits credits to states that establish exchanges. Several of Justice Kennedy’s question seemed to suggest this troubled him, and he referred to it as a “serious constitutional problem.”

While this is now the en vogue argument, and has filled the legal blogosphere, I pause to note that the remedy is, shall we say, complicated, for the reasons pointed out in NFIB v. Sebelius. Seven Justices found that the Medicaid expansion, as written, was unconstitutionally coercive. The joint opinion (Scalia, Kennedy, Thomas, and Alito), after finding that the condition violated the principles articulated in South Dakota v. Dole, voted to invalidate the entire Medicaid expansion.

Seven Members of the Court agree that the Medicaid Expansion, as enacted by [2667] Congress, is unconstitutional. See Part IV-A to IV-E, supra; Part IV-A, ante, at ___ – ___, 183 L. Ed. 2d, at 490-497 (opinion of Roberts, C. J., joined by Breyer and Kagan, JJ.). Because the Medicaid Expansion is unconstitutional, the question of remedy arises. The most natural remedy would be to invalidate the Medicaid Expansion. However, the Government proposes–in two cursory sentences at the very end of its brief–preserving the Expansion. Under its proposal, States would receive the additional Medicaid funds if they expand eligibility, but States would keep their pre-existing Medicaid funds if they do not expand eligibility. We cannot accept the Government’s suggestion.

The Chief Justice, along with Justices Kagan and Breyer, in the other saving construction that people don’t talk about, rewrote the statute–states that wanted to expand Medicaid would  be able to, and states that did not could keep the “old” money. The new Medicaid expansion, which we are laboring under today, is at great odds with the one Congress designed.

The joint opinion made this point, however, and stressed that it is not for the Courts to rewrite statutes:

The reality that States were given no real choice but to expand Medicaid was not an accident. Congress assumed States would have no choice, and the ACA depends on States’ having no choice, because its Mandate requires low-income individuals to obtain insurance many of them can afford only through the Medicaid Expansion. Furthermore, a State’s withdrawal might subject everyone in the State to much higher insurance premiums. That is because the Medicaid Expansion will no longer offset the cost to the insurance industry imposed by the ACA’s insurance regulations and taxes, a point that is explained in more detail in the severability section below. To make the Medicaid Expansion optional despite the ACA’s structure and design “ ‘would be to make a new law, not to enforce an old one. This is no part of our duty.’ Trade-Mark Cases, 100 U.S. 82, 99, 25 L. Ed. 550, 1879 Dec. Comm’r Pat. 619 (1879).

The joint dissent labels this rewriting of the statute a “judicial usurpation”:

This analysis also shows how closely interrelated the Act is, and this is all the more reason why it is judicial usurpation to impose an entirely new mechanism for withdrawal of Medicaid funding, see Part IV-F, supra, which is one of many examples of how rewriting the Act alters its dynamics.

This brings us back to King v. Burwell, where we are faced with a somewhat analogous situation. If the Court sees fit to avoid the constitutional difficulty by construing an unambiguous statute as ambiguous, they run into the broader jurisprudential issue of rewriting a law that the Court admits Congress didn’t write. If the statute is ambiguous, and the government wins at Chevon Step II, there is no need to engage the canon of avoidance. You only go to the canon if the government loses at Chevron Step II. In other words, the only way to get to the constitutional avoidance canon is to find that the statute does not provide for subsidies. However, the result of applying the canon would be to rewrite the statute the Court just found that Congress did not enact. First, the Court would hold that Congress did not provide subsidies for states without exchanges, but then hold, we will reach that result anyway, to avoid a constitutional difficulty. This is a perverse application of the federalism, which inflicts great violence to the will of Congress.

The joint opinion makes this point very clear:

The Court severs nothing, but simply revises §1396c to read as the Court would desire. We should not accept the Government’s invitation to attempt to solve a constitutional problem by rewriting the Medicaid Expansion so as to allow States that reject it to retain their pre-existing Medicaid funds. Worse, the Government’s remedy, [2668] now adopted by the Court, takes the ACA and this Nation in a new direction and charts a course for federalism that the Court, not the Congress, has chosen; but under the Constitution, that power and authority do not rest with this Court.

Again, the only way to get to the avoidance canon is to find that Congress did not intend to provide subsidies for states without exchanges. But rewriting the statute would do just that. The Court would be enacting a statute directly at odds with what Congress intended. As the joint opinion notes, citing many recent cases including PCAOB, this is not how severance jurisprudence works.

The Court has applied a two-part guide as the framework for severability analysis. The test has been deemed “well established.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (1987). First, if the Court holds a statutory provision unconstitutional, it then determines whether the now truncated statute will operate in themanner Congress intended. If not, the remaining provisions must be invalidated. See id., at 685, 107 S. Ct. 1476, 94 L. Ed. 2d 661. In Alaska Airlines, the Court clarified that this first inquiry requires more than asking whether “the balance of the legislation is incapable of functioning independently.” Id., at 684, 107 S. Ct. 1476, 94 L. Ed. 2d 661. Even if the remaining provisions will operate in some coherent way, that alone does not save the statute.The question is whether the provisions will work as Congress intended. The “relevant inquiry in evaluating severability is whether the statute will function in a manner consistent with the intent of Congress.” Id., at 685, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (emphasis [2669]  in original). See also Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (2010) (the Act “remains fully operative as a law with these tenure restrictions excised”) (internal quotation marks omitted); United States v. Booker, 543 U.S. 220, 227, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005) (“[T]wo provisions . . . must be invalidated in order to allow the statute to operate in a manner consistent with congressional intent”); Mille Lacs, supra, at 194, 119 S. Ct. 1187, 143 L. Ed. 2d 270 (“[E]mbodying as it did one coherent policy, [the entire order] is inseverable”).

Second, even if the remaining provisions can operate as Congress designed them to operate, the Court must determine if Congress would have enacted them standing alone and without the unconstitutional portion. If Congress would not, those provisions, too, must be invalidated. See Alaska Airlines, supra, at 685, 107 S. Ct. 1476, 94 L. Ed. 2d 661 (“[T]he unconstitutional provision must be severed unless the statute created in its absence is legislation that Congress would not have enacted”); see also Free Enterprise Fund, supra, at ___, 130 S. Ct. 3138, 177 L. Ed. 2d 706 (“[N]othing in the statute’s text or historical context makes it ‘evident’ that Congress, faced with the limitations imposed by the Constitution, would have preferred no Board at all to a Board whose members are removable at will”); Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 330, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006) (“Would the legislature have preferred what is left of its statute to no statute at all”); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767, 116 S. Ct. 2374, 135 L. Ed. 2d 888 (1996) (plurality opinion) (“Would Congress still have passed § 10(a) had it known that the remaining provisions were invalid” (internal quotation marks and brackets omitted)).

Avoiding the constitutional issue would yield far greater constitutional difficulties than striking down the IRS Rule. In truth, the only way to apply the principles of the joint opinion here would be to invalidate ALL of the subsidies. No state, whether it established an exchange, or not, would get any tax credits. The joint opinion explains this approach would be preferable to rewriting the law.

An automatic or too cursory severance of statutory provisions risks “rewrit[ing] a statute and giv[ing] it an effect altogether different from that sought by the measure viewed as a whole.”Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330, 362, 55 S. Ct. 758, 79 L. Ed. 1468 (1935). The Judiciary, if it orders uncritical severance, then assumes the legislative function; for it imposes on the Nation, by the Court’s decree, its own new statutory regime, consisting of policies, risks, and duties that Congress did not enact. That can be a more extreme exercise of the judicial power than striking the whole statute and allowing Congress to address the conditions that pertained when the statute was considered at the outset.

At the end of the day, the avoidance canon creates more problems than it solves.

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Mar 4, 2015

The New York Times on Mike Carvin

Cheryl Gay Stohlberg had a fantastic profile of Mike Carvin, which generously quoted me:

In March 2012, a blunt-talking and rumpled lawyer named Michael A. Carvin told Supreme Court justices that President Obama’s health care law was an unconstitutional attempt to “regulate every activity from cradle to grave.”

He lost that case — and has never quite gotten over it.

“The operation was a success, but the patient died,” Mr. Carvin said then, insisting he had won at least a moral victory.

Now Mr. Carvin, 58, has a second chance to dismantle a law that conservatives despise. On Wednesday, he will again appear before the Supreme Court, this time on behalf of plaintiffs in King v. Burwell, a case that could cripple the Affordable Care Act — and, the White House says, deprive as many as 7.5 million Americans of their health coverage.

“The solicitor general will get up there and say, ‘Mr. Chief Justice, if you rule against us, people will lose their insurance and they may die,’ ” said Josh Blackman, the author of a book on the 2012 health care case and an assistant professor at South Texas College of Law. “No lawyer other than Michael Carvin could make the argument: ‘So what?’ ”

“So what?” is not precisely the argument Mr. Carvin will make Wednesday in confronting Solicitor General Donald B. Verrilli Jr., but the phrase does come close to capturing his aggressive courtroom style. Instead he will tell the justices that Mr. Obama must be held to the letter of his own law — a principle that he argues trumps the fate of the uninsured.

Update: In one of the odd quirks of modern-day journalism, the New York Times published this story online for Wednesday morning, and updated it for the print edition for Thursday morning. My quote remains, in an altered form:

His latest case could cripple the Affordable Care Act — and, the White House says, deprive as many as 7.5 million Americans of their health coverage. Josh Blackman, the author of a book on the 2012 health care case and an assistant professor at South Texas College of Law, says Mr. Carvin is unsentimental about that.

“No lawyer other than Michael Carvin,” he said, “could make the argument: ‘So what?’ ”

“So what?” is not precisely the argument Mr. Carvin made Wednesday in confronting Solicitor General Donald B. Verrilli Jr., but the phrase does come close to capturing his aggressive courtroom style. Instead, he told justices that Mr. Obama must be held to the letter of his own law — a principle that he argues trumps the fate of the uninsured.

The old version is down the memory hole.

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Mar 3, 2015

Boehner: Courts Are “Best Chance of Winning this Fight”

My closing remarks in my testimony before the House Judiciary Committee stressed that it is for Congress, first, to enforce the separation of powers, and not leave this all-important task to the courts:

In the words of James Madison, the only way to keep the separation of powers in place is for “ambition . . . to counteract ambition.” Although the Courts play an essential role to serve as the “bulwarks of a limited Constitution,” our Republic cannot leave the all-important task of safeguarding freedom to the judiciary. To eliminate the dangers of non-enforcement, the Congress must counteract the President’s ambition. The failure to do so here will continue the one-way ratchet towards executive supremacy, and a dilution of the powers of the Congress, and the sovereignty of the people.

Today, as the House of Representatives voted on a clean bill, funding DAPA, Speaker Boehner punted this all-import responsibility to the courts.

“I am as outraged and frustrated as you at the lawless and unconstitutional actions of this president,” Boehner told House Republicans during a conference meeting Tuesday morning, according to a source in the room. “I believe this decision – considering where we are – is the right one for this team, and the right one for this country. The good news is that the president’s executive action has been stopped, for now. This matter will continue to be litigated in the courts, where we have our best chance of winning this fight.”

While I support Texas’s challenge to DAPA, it is very, very sad that Congress is willing to relinquish its constitutional prerogative to support the separation of powers. If they are not willing to fight, it is troubling to think that only the courts are left.

I’ll close with Justice Jackson’s concurring opinion in Youngstown:

The essence of our free Government is “leave to live by no man’s leave, underneath the law” – to be governed by those impersonal forces which we call law. Our Government  is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.

Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.

Last, not first.

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Mar 3, 2015

Lobbying the Supreme Court

King v. Burwell has given me the oddest sense of deja vu. I’ve commented to several friends, “We’ve been here before.” Before it even began, I sensed an imminent effort to lobby the Chief Justice. And, shortly after certiorari was granted, this effort began. Since then, there has been an onslaught of blog posts, articles, and even amicus briefs that make the naked argument that the Court–the Chief in particular–should not invalidate the IRS Rule because it would amount to a partisan decision divesting innocent people of their subsidies, and corrupt the Court as an institution. These are separate, and apart, from briefs that make various textual or structural arguments about how to interpret the ACA (including my own), which I have no problem with. Why shouldn’t those on the left make these types of arguments? As I discuss in Unprecedented, they worked the first time around. So, the argument goes, let’s do it again.

Yet, this deja vu cuts both ways. Conservatives that criticize these liberals are invariably attempting to influence the Court in their own right. In 2012, liberals told the Chief Justice to be the “Chief Justice for all of us.” Conservatives replied, in kind, that the Chief Justice should grow a “spine of steel.” Both sides were engaging in the same game. And we know how that turned out.

As before, politicians are starting to get involved in the lobbying effort. The President, who three years ago compared a decision invalidating the individual mandate to “Lochner,” has preemptively called a decision invalidating the IRS rule “bad law.”

“If they rule against us, we’ll have to take a look at what our options are. But I’m not going to anticipate that,” President Obama said Monday in an interview with Reuters. “I’m not going to anticipate bad law.”

Bad law. The President has already delegitimized a decision of the Court, without even reading it. In another interview, he said there is no “plausible legal basis” to invalidate the rule. Whether or not the result is correct, there are hundreds of articles, briefs, and essays making at least a “plausible” cause. It would survive Iqbal. But for now, the effort is to render the opinion void ab initio.

The New York Times reports that the Obama administration claims to have no plan whatsoever if the Court invalidates the IRS Rule. But that isn’t the important revelation. What is significant, is the administration signaled that they were deliberately not implementing a plan

Administration officials insist that any steps they could take to prepare for the potential crisis would be politically unworkable and ineffective, and that pursuing them would wrongly signal to the justices that reasonable solutions exist. The do-nothing strategy is meant to reinforce for the court what White House officials believe: that a loss in the health care case would be unavoidably disastrous for millions of people.

Think about that for a moment. Some administration official is openly signaling to the Times that the White House isn’t even thinking of a Plan B, in the hope that such a “reasonable solution” may assuage the Justices to invalidate for a rule. (For what it’s worth, I don’t believe for a second they don’t have a contingency plan–this makes such posturing even worse).

On the flipside, Rep. Sandy Levin (D-MI) has charged that proposals by Republicans to fix the subsidies are sending a “false message” to the Court.

“Republicans are trying to send a false message to the Supreme Court that they could repair the enormous damage that this case could bring to the health care of Americans when they cannot even address basic funding for the Department of Homeland Security,” he continued. “This plan is vacuous. The result of an adverse Supreme Court ruling would be hugely dangerous.”

Democrats are claiming to have no plan, in order to signal to the Court that they should uphold the Rule. Republicans are claiming to have a plan, in order to signal to the Court they should invalidate the Rule.

Peter Suderman summed up the issue well:

But consensus isn’t really the goal here. Instead, the Republicans are playing a strategy that is the reverse of the one employed by the White House: They want to convince the court that the fallout from a ruling for the challengers would not be too great, because the GOP has a mitigation strategy at the ready.

What this messaging tug-of-war leaves us with, then, is an odd dynamic in which the administration insists it has no contingency plan, even though it (likely) does, and Republicans in Congress insist they have a backup, even though they don’t.


The lobbying, or politicking, of the Supreme Court is unhealthy, and I think poses a true death spiral to our system of justice, far beyond the impact on health insurance premiums. The final paragraph of my afterword in Unprecedented is truer today, than when I wrote it.

Though the administration’s effort to politicize the courts worked in the short term, I fear what this may do to the Supreme Court in the long run. Attempts by the political branches to intimidate the Court are nearly as dangerous as the Court disrespecting its role among the political branches. As Justice Thomas said in February 2011, in response to calls for his recusal, “You all are going to be, unfortunately, the recipients of the fallout from [this politicization of the judiciary]. There’s going to be a day when you need these institutions to be credible and to be fully functioning to protect your liberties.” When that day comes, Thomas implied, those institutions won’t be there. The leak of the chief justice’s decision to change his vote, followed by the battle to sway him back, underscores how precarious this credibility is.

For now, I hope that the constitutional clash from 2009 to 2012 remains unprecedented and is never repeated.

Alas, we now have a template. I fully expect this pattern to repeat after arguments tomorrow. And we are all worse off for it.

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Mar 2, 2015

The New York Times on the Origin of King v. Burwell

Adam Liptak generously quotes me on the origin of King v. Burwell:

Opponents of the subsidies say it is the text of the law that matters, not what individual lawmakers knew or believed.

“It is extremely doubtful that any senators read the entire bill at the time, and even more doubtful that all but a few senators were even aware of how the exchanges were structured,” said Josh Blackman, a law professor at South Texas College of Law who has filed a brief supporting the plaintiffs.

“When you have such a large bill, that changes so many aspects of our society, that no one bothered to read, discerning a single legislative intent is elusive,” he continued. “To this, the challengers reply that the text provides the best indication of what Congress meant — the majority voted on it.”

One point that has been weighing on my mind of late, is how sophisticated the arguments have become over the last two years. When the IRS rule was initially proposed, Treasury did almost no research. They declared federal exchanges to be equivalent to state exchanges, ipse dixit. Over the past two years, academics and government lawyers have put together a compelling case about why the government wins. But absolutely none of this was part of the “reasoned decisionmaking” when the rule was proposed, or adopted.

This reminds me (tragically) of the individual mandate. When it was crafted, it was framed as a regulation of commerce, and all the constitutional findings about the mandate cited the commerce clause. None cited the taxing power. However, as soon as the challenges were filed, the government quickly pivoted to the taxing power. And the rest is history.

There is something perverse about the government relying on rationales that were totally absent when the original action was taken. It is akin to the rational basis test, where the state can fabricate rationales after the fact to justify a regulation, even if that regulation was unknown. When the IRS regulation was issued, the explanation proffered amounted to lawlessness. Now, they have a legitimate textualist argument. This history is why, I argue in my brief with Cato, that the normal presumption of deference should not be applicable.

Anyway, that’s it for me for now. I’ll have a lot more to say after attending oral arguments.

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Mar 2, 2015

Talks Today in Tucson and Tempe

Today at noon I will be speaking to the University of Arizona Federalist Society Chapter about the constitutionality of bans on 3D-Printed guns, with respect to the 1st and 2nd Amendments. Professors Jane Bambauer and Hank Shea will be providing comments. The event will be in room 418.

At 4:30, I will be speaking to the Phoenix Federalist Society Lawyers Chapter for an event on the same topic at the University of Advancing Technology. The event, which is free, will be followed by a demonstration of a 3D-printer. You can register here.

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Mar 1, 2015

Justice Kagan is the Master of the Parenthetical Aside to Break #SCOTUS Fourth Wall

I remain enamored by Justice Kagan’s writing style, and in particular her colloquial manner. One of her best tools is the parenthetical aside–as if she is breaking the Supreme Court’s proverbial “fourth wall.” Instead of speaking to the U.S. Reports, she is speaking directly to us. Consider a few parentheticals, speaking directly to the audience, in her dissent in Yates v. United States.

So the ordinary meaning of the term “tangible object” in §1519, as no one here disputes, covers fish (including too-small red grouper).

From Alabama and Alaska through Wisconsin and Wyoming (and trust me—in all that come between), States similarly use the terms “tangible objects” and “tangible things” in statutes and rules of all sorts.

That is not necessarily the end of the matter; I agree with the plurality (really, who does not?) that context matters in interpreting statutes.

Section 1519 refers to “any” tangible object, thus indicating (in line with that word’s plain meaning) a tangible object “of whatever kind.”

This Court has time and again recognized that “any” has “an expansive meaning,” bringing within a statute’s reach all types of the item (here, “tangible object”) to which the law refers.

These parentheticals serve no purpose, other than to connect with the reader–and connect they do. When I read a Kagan opinion, I feel like she is having a personal conversation with me. It’s almost like when Zak Morris called a time-out on Saved By The Bell and spoke directly to the camera.

Pound for pound, the Chief is still the best technical writer, and Scalia is the most witty, but I enjoy reading Kagan’s decisions the most. With sentences like these, who wouldn’t:

A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).

Not a one has limited the phrase’s scope to objects that record or preserve information.

And legislative history, for those who care about it, puts extra icing on a cake already frosted.

In any event, score this as another victory for Florida Man.

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Mar 1, 2015

En Banc For A Stay in the 5th Circuit

In an earlier post about the timing of the appeals from Judge Hanen’s order, I noted that even if the panel rule for the administration and granted a stay, it was very likely that at least one judge on the panel would sua sponte call for en banc. Josh Gerstein of Politico tweeted that the 5th Circuit’s Practitioner’s Guide (p. 85) provides that stays are not subject to en banc.

Reconsideration of denials of relief in administrative motions is by a three-judge panel only. Procedural and interim matters, such as stay orders, injunctions pending appeal, appointment of counsel, leave to appeal in forma pauperis, denial of permission for an abusive litigant to file pleadings, denials of more time to file briefs, etc., are not matters subject to en banc consideration.

However, FRAP 35(a) provides that any “proceeding” can be rehearing en banc. That would seem to include en banc proceedings.

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc.

There is nothing in the 5th Circuit’s local rules suggesting that stay orders are not subject to an en banc vote. While the practitioner’s guide is certainly helpful, it does not trump the FRAP, or the local rules, which expressly provide for an en banc vote for any “proceeding,” of which a stay vote counts. The local rules make no specification that stays are excluded from en banc polls:


It’s possible this was put into the guide to discourage pro se plaintiffs from seeking frivolous stays. The Internal Operating Procedures make this point implicitly on p. 35:


But in any event, this guide will not serve as a barrier if one judge seeks to call for en banc.

H/T to Cato’s inestimable local counsel, Leif Olson, for explaining 5th Circuit procedures to me.

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Mar 1, 2015

President Bypasses Senate on Iran Agreement, Threatens to Veto Bill Requiring Notice to Congress Before Deal Reached

During his testimony before the Senate Foreign Relations Committee last week, Secretary of State John Kerry made clear that Congress would have “no other role or feedback” with respect to negotiations with Iran. He explained that Congress’s authority would be limited to voting to lift congressionally-mandated sanctions, but that’s it. Why? Because Article II.

“No, I believe this falls squarely within the executive power of the president of the United States in the execution of American foreign policy. And he [the President] is executing thoroughly all his responsibilities of consultation, but in the end this is the president’s prerogative,” he continued. “You can always decide to oppose it one way or the other, as you might. Our hope is that we will consult, work together, not set up predetermined barriers that make it difficult to get to an agreement.”

In response, Sen. Bob Corker, Chairman of the Committee, has introduced the Iran Nuclear Negotiations Act (here is a version from the last Congress). The bill would require the President to submit the administration to submit any nuclear deal concerning Iran to Congress within three days of entering into the agreement. Corker explains:

In the event of any agreement with Iran, he said, “I do think it’s important that it is submitted, that we have the opportunity to approve it prior to the sanctions being lifted.”

Now, the President has threatened to veto a bill that would give Congress the opportunity to weigh in on the agreement.

President Barack Obama would veto a bill recently introduced in the U.S. Senate allowing Congress to weigh in on any deal the United States and other negotiating countries reach with Iran on its nuclear capabilities, the White House said on Saturday.

“The president has been clear that now is not the time for Congress to pass additional legislation on Iran.  If this bill is sent to the president, he will veto it,” said Bernadette Meehan, a spokeswoman for the White House’s National Security Council.

The United States and five other major powers are seeking to negotiate an agreement with Iran to curb its nuclear program in exchange for relief from economic sanctions.

The Iran Nuclear Agreement Review Act would require to submit to Congress the text of any agreement within five days of concluding a final deal with Iran. The bill would also prohibit Obama from suspending or waiving sanctions on Iran passed by Congress for 60 days after a deal.

Meehan said United States “should give our negotiators the best chance of success, rather than complicating their efforts.”


Like the National Defense Authorization Act, which required that POTUS give 30 days notice before releasing high-value detainees from Guantanamo, this bill would only require notice–not approval. The idea is that the President would not be able to quietly enter into a bad deal, without public scrutiny. But, the President will still veto this effort by Congress to limit his power. No doubt, if the veto was overturn by the Congress, the President would disregard it as an unconstitutional limit on his foreign powers–even though, in effect, it would approximate the level of support needed for ratification of a treaty (2/3 of the Senate!). (Update: Senator Graham suggests that a veto-proof majority may exist for an Iran bill).

One aspect of modern-day constitutional law that always irked me is the so-called “executive agreement.” By calling it an executive agreement, rather than a treaty, the President can avoid the requirement of advice and consent by the Senate. Of course, these agreements cannot bind domestically, in the absence of any implementing legislation, so Congress would have to be involved, but the agreement itself can be reached without input from the Senate. Once the agreement has been reached, and the Executive makes a deal with a foreign country, there are a whole host of other pressures that inhibit Congress from opposing the implementation of the executive agreement. This is why, I think, the framers put the ratification requirement for treaties as one of the few restrictions on the President’s powers over foreign affairs. The United States should not get entangled in foreign agreements unless the Senate concurs.

Here, as has become the pattern, the President openly flouts the Constitution’s structural provisions, meant to check his foreign policy powers (here the treaty ratification requirement), and then openly flouts Congress’s efforts to reassert their constitutional prerogatives (checking his ability to enter into foreign agreements) through the veto threat. This is an exact replay of DAPA, where the President bypassed his duty of faithful execution under a specious argument about prosecutorial discretion, an then threatens to veto a bill that would defund his unconstitutional actions. He did the same with a bipartisan bill in 2013 to allow people to keep their bills cancelled by Obamacare–he threatened to veto it, and then did it himself through executive power. This is a very, very disquieting pattern.

As a footnote, let me reiterate that I do not write about foreign affairs unless they implicate domestic constitutional separation of powers issues. Also, I do not have an informed opinion about how and what a deal with Iran should look like. My interests only concern how foreign policy interacts with the Constitution.

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Feb 28, 2015

President Weighs In On King v. Burwell and “Republican Party … suing us constantly” on Obamacare

During an interview on immigration, the President tried to draw a comparison between Judge Hanen’s ruling and the various challenges to Obamacare, which he described as (drumroll) “unprecedented.”

THE PRESIDENT:  Well, José, we’ve got one judge who made this decision.  We appeal it to a higher court.  We believe that the law is clearly on our side.  This is true in everything that we do.

Look at the Affordable Care Act.  We’ve signed up 11 million people to get coverage through the Affordable Care Act.  Over 2.5 million of them are Latino.  (Applause.)  Because of what we’ve done, we’ve seen the percentage of uninsured Latinos drop by almost 7 percent.  It’s unprecedented.  So we know it can work.

Now, that hasn’t stopped the Republican Party from suing us constantly, to try to find a judge who may think that what we’re doing is in appropriate, despite the fact that it passed through Congress.  We’ve got a Supreme Court that is still ruling on these cases.  But that hasn’t stopped us from moving forward.

Indeed, the administration hasn’t stopped, failing to prepare any backup plan if the Court invalidates the IRS rule in King v. Burwell. Oh, and while the ACA passed Congress, DAPA did not.

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Feb 28, 2015

President Explains 5th Circuit Appeal To Take “A Couple of Months” And Threatens to Sever Power of Purse With Veto

During a wide-ranging interview in Miami on Wednesday, the President commented on DAPA, DACA, and Judge Hanen’s order.

First, in response to a question about DAPA, the President alluded to forum shopping, by explaining “Republican governors . . . found a district court judge.”

Now, unfortunately, a number of Republican governors chose to sue.  They found a district court judge who has enjoined — meaning stopped — us going forward with this program.  But that’s just the first part of the process.  This is just one federal judge.  We have appealed it very aggressively.  We’re going to be as aggressive as we can because not only do we know that the law is on our side, but history is also on our side.’

But has this appeal been aggressive? Despite their empty threat they DOJ will appeal to the 5th Circuit if Judge Hanen didn’t rule by Wednesday, as of today, no papers have been filed in New Orleans. Is this aggressive?

In response to a question about how long the appeal will take, the President explained it will take “a couple of months.”

MR. DIAZ-BALART:  How long will it take?  Because a lot of people are asking.  They said, we were 24 hours away from registering for the expanded DACA and just months from DAPA.  This happens 12 hours before.  What’s going to happen now? How long is it going to take?  And, again, a lot of the questions are, was the President caught by surprise?  And why is it taking so long?  This is what we’re getting, Mr. President.

THE PRESIDENT:  What I’m saying is, is that of course we weren’t surprised.  I’ve got a bunch of lawyers, we saw the judge who was rendering the opinion.  The fact that we weren’t surprised doesn’t mean we can stop the judge from rendering an opinion.  It means that we then go forward in the appeal process. That’s how the legal system works.

And we have asked –- first and foremost, we have asked for a stay.  What a stay means, by the way, for the non-lawyers, is simply that whatever the judge thinks, it shouldn’t stop us from going ahead and implementing.  The first step is to go before that same judge and say, judge, what you said is wrong, rethink it.  He may not agree with that.

The next step is to go to a higher court, the Fifth Circuit. That will take a couple of months for us to file that and argue that before the Fifth Circuit.  We expect to win in the Fifth Circuit, and if we don’t, then we’ll take it up from there.

So at each stage, we are confident that we’ve got the better argument.  As I said before, what I’ve done is no different than what previous Presidents have done.  In the meantime, what I can do is make sure –-

He later repeated, again, that the process would take “months.”

So we’re going to be in a position I think of going through the legal process over the next several months.

Based on this comment, it doesn’t look like DOJ will file for an emergency stay with the 5th Circuit. A process that takes “a couple of months” will likely be an expedited appeal. But the panel opinion could take 6 months from start to finish. Then, en banc if it goes against the Administration. Then a year for certiorari. As I noted in National Review, the courts can effectively run out the clock on the Obama Administration.

One of the President’s most striking remarks concern the efforts of the House of Representatives to use the power of the purse to stop his executive action on immigration. While I am entirely ambivalent about the politicking around the funding of DHS and government shutdowns, the President explained that he would veto any effort by Congress to cabin his executive powers through the appropriations clause.

So in the short term, if Mr. McConnell, the leader of the Senate, and the Speaker of the House, John Boehner, want to have a vote on whether what I’m doing is legal or not, they can have that vote.  I will veto that vote, because I’m absolutely confident that what we’re doing is the right thing to do.  (Applause.)  And in the meantime, we’re going to continue to pursue all legal avenues to make sure that we have a country in which we are respecting not only the law, because we’re a nation of laws, but we’re also respecting the fact that we’re a nation of immigrants.

In Part II of my series, I spin a counterfactual where President Truman vetoed the “Steel Mill Restoration Act of 1952,” which defunded the President’s efforts to seize any steel mills. I use this as a scary example of how a President could use the veto power to fight back against Congress attempting to reclaim its legislative authority. Yet, this actually happened. In the past, the President threatened to veto a bill that would have grandfathered plans cancelled under Obamacare–then accomplished through executive action the exact goal. We are living in a surreal time, where the President describes such behavior as fitting a “nation of laws.”

The host asked the President in several different manners why he didn’t go further with DAPA. The President replied, as he did before DACA, and before DAPA, that he was already stretching his powers to their furthest extent. (Apparently, after each new program, the powers expanded).

The bottom line is, José, that I’m using all of the legal power vested in me in order to solve this problem.  And one of the things about living in a democracy is that we have separation of powers — we have Congress, we have the judicial branch — and right now, we’ve got some disagreements with some members of Congress and some members of the judiciary in terms of what should be done.

The President considers the current constitutional crisis a mere “disagreement” between Congress and the judiciary.

Once again, he says he expanded his powers “as far as we can” (He said that many times before).

What we’ve done is we’ve expanded my authorities under executive action and prosecutorial discretion as far as we can legally under the existing statute, the existing law.  And so now the question is, how can we get a law passed.

He adds that what makes him confident is “prosecutorial discretion.”

THE PRESIDENT:  Here’s the thing.  I was always very clear about this, even when I made the first announcement about the executive actions.  The reason I’m confident about our legal position in what we did with DACA, which was already in place since 2012, what we’re now proposing in terms of expanding DACA, and also for the parents of those who qualified for DACA — the reason I’m confident is that we could take those steps under my powers of prosecutorial discretion. 

If, in fact, we were completely just rewriting the immigration laws, then actually the other side would have a case, because we can’t violate statutes.  We can’t violate laws that are already in place.  What we can do is make choices to implement those laws.  That’s what we’ve done with DACA and that’s what we’ve proposed with the expansion of DACA and DAPA.

In order for us to do most of the work that Boris refers to in terms of expanding opportunities, for example, to say to any young person who has got an advanced degree in math and science and engineering, which we know we’re going to need, even as we try to get more and more young Americans to go into those fields –- in order for us to do that, we’re going to need a congressional law to be passed.  I don’t have all the authorities that are necessary in order to get some of those things done.

In a fascinating colloquy, the host explains why George H.W. Bush’s 1990 Family Fairness program differed from DAPA. Putting aside the fact that only 50,000 people applied (not the 1.5 million estimated), the key difference is that it served as a temporary bridge during the 9 months between when the Senate and House passed versions of the bill.

MR. DIAZ-BALART:  The numbers are unprecedented.

THE PRESIDENT:  Well, the numbers are unprecedented only relatively speaking.  I mean, if you look at what George H.W. Bush did, he, proportionally to what was then the immigrant population, was very aggressive in expanding.  The difference is, is that Democrats didn’t challenge what he did for largely political reasons.

MR. DIAZ-BALART:  And there was a bill already underway.

Focus very carefully on the President’s response. He quickly acknowledges that there was a bill pending– a fact his OLC neglected to discuss.

THE PRESIDENT:  Well, there was a bill underway…

The rest of the sentence seems to be a riff on his theme–when Congress doesn’t solve a problem, then I will.

… but in some ways, you could make an argument that since a bill had passed that didn’t solve that problem, Congress had been very direct in saying we don’t want to solve that problem.

His next sentence is confusing. Is “He” referring to George H.W. Bush? That’s what I thought till we got to the last part about DHS which didn’t exist in 1990. Is he speaking about his Secretary?

And he went ahead and did it anyway, because it’s in his authority to implement, using prosecutorial discretion, the limited resources of Department of Homeland Security.

It doesn’t really make sense. But I think there is a semblance of an idea there.

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Feb 27, 2015

Supreme Court on Jeopardy!

Today’s episode of Jeopardy had a category about the Supreme Court. I was only able to get a picture of the final three clues. One of the earlier ones involved Justice O’Connor asking what precedent Planned Parenthood v. Casey upheld. The question was “What is Roe v. Wade?” Of course, Casey did no such thing. I’m glad the fact checkers are on it. Alas, for the question of what day the Supreme Court’s term begins, one person said May 1, and another said October 1. Sigh. I would’ve cleaned up this category.




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Feb 27, 2015

Calabresi on the Inside Dirt Behind the Appointments of Justices O’Connor, Kennedy, and Souter, and Non-Appointments of Starr, Posner, and Wilkinson

In his response to Bruce Allen Murphy’s book about Justice Scalia, Steven Calabresi (with his co-author Justin Braga) offers some inside scoops (which I hadn’t seen) about the nominations of Justices O’Connor, Kennedy, and Souter, and the non-appointments of Starr, Posner, and Wilkinson. The details are, well, salacious.

As a member of the Reagan Administration for two years and as a close friend of leading Reagan Administration and George H. W. Bush Administration legal officials, I know a lot about how Justices O’Connor, Kennedy, and Souter got to be appointed to the U.S. Supreme Court.

First, Kenn Starr picked SOC. Calabresi calls Starr’s conservatism “squishy.”

Given the tiny number of women who attended law school in the 1950’s, it is very unlikely that any such conservative woman existed who had attended the nearly all male law schools of the 1950’s. Justice O’Connor was hand-picked by former Judge Ken Starr who served as Attorney General William French Smith’s Councilor and Chief of Staff in the early 1980’s. Starr was at the time a very moderate Republican with squishy views that were indistinguishable from those Justice O’Connor later displayed on the Supreme Court.

Calabresi blames Starr for this nomination.

In hand-picking Justice O’Connor for appointment to the U.S. Supreme Court, Ken Starr picked someone very much like himself: a mediocre, squishy, centrist with slight conservative leanings. Justice Scalia did not drive Justice O’Connor to the left. She was already there when President Reagan appointed her. The person to blame for the fiasco of the O’Connor appointment is not Justice Scalia but Ken Starr.

Calabresi also thinks Starr would have been a terrible nominee:

I think Starr would have joined O’Connor and Kennedy in refusing to overrule Roe v. Wade, and he would have been a constant thorn in William Rehnquist’s and Antonin Scalia’s side as he was when he was on the D.C. Circuit. He craved the approval of the Georgetown dinner party circle and of the elite law schools. He was also prone to make mistakes and furiously stubborn about not backing down from them in a way that has always reminded me of Justice Harry Blackmun who devoted his life to the defense of his mistake in Roe v. Wade. It was a serious error of judgment ever to have considered Ken Starr for appointment to the Supreme Court. His disastrous handling of his appointment as an independent council to investigate Bill Clinton proved to the nation all of his many flaws in judgment.

Second, we learn that Bill Bennett was key in stoning Doug Ginsburg’s nomination (come one, that pun was better than “going up in smoke.”)

After Judge Bork’s defeat, the Justice Department, led by conservative Attorney General Edwin Meese III, offered up a libertarian, former Harvard law professor Douglas Ginsburg as the second nominee. Ginsburg’s nomination went down in flames after it was discovered that he had attended a party at Harvard Law School in which students and faculty were openly smoking marijuana to which he did not object. Education Secretary Bill Bennett and his key aide William Kristol idiotically led a crusade to get Ginsburg to withdraw his nomination because he was soft on marijuana. That campaign succeeded paving the way for Justice Anthony M. Kennedy’s appointment. Ironically, Bennett and Kristol would have more likely agreed with Ginsburg than they have with Kennedy.

Third, the blame for Anthony Kennedy goes to “liberal Republican” Howard Baker and the “squishy” A.B. Culvahouse (who 20 years later helped vet Sarah Palin as VP):

The nomination of Anthony M. Kennedy after the Bork and Ginsburg fiascos fell to liberal Republican Howard Baker, who was the White House Chief of Staff trying to stave off Ronald Reagan’s threatened impeachment over Iran-Contra, and to his squishy White House Council, A. B. Culvahouse, because conservative Attorney General Edwin Meese had lost his control over the Supreme Court nomination process after the Bork and Ginsburg fiascos. General Meese’s candidate for the third nomination was J. Clifford Wallace, a mediocre candidate but a very devout Mormon who was an ardent conservative. The White House rejected Wallace out of hand preferring either Judge Bork’s conservative friend from his days at Yale, Ralph K. Winter, or Judge Anthony M. Kennedy. Winter’s candidacy was tubed because of the implacable opposition to him from Senator Joseph Biden, the Chairman of the Judiciary Committee, who quite wrongly thought Winter was just another Bork. Conservatives advising A.B. Culvahouse then rallied around Judge Kennedy who was seen as being more conservative than Judge Patrick Higginbotham who was another possible nominee. Kennedy was known to the White House to have had the strong support of Harvard Law Professor Laurence Tribe, a leading liberal, which made him confirmable in the heated politics following the Bork and Ginsburg fiascos.

Fourth, we learn that Calabresi interviewed David Souter for a possible 1st Circuit vacancy, and did not like him.

Justice David Souter was always a centrist in his jurisprudential leanings, as I learned first hand when I interviewed him for one hour on behalf of Attorney General Edwin Meese, when Souter was considered for appointment to the U.S. Court of Appeals for the First Circuit. I was asked to interview Souter under highly unusual circumstances. The most liberal judge on the First Circuit had told liberal Republican Senator Warren Rudman that he would be willing to take senior status thus creating a vacancy if he could be assured that New Hampshire Supreme Court Justice David Souter would be appointed to fill his seat. My job in interviewing Souter was not to assess him as a Supreme Court nominee but to figure out if he was significantly more conservative than the left wing judge who was offering to take senior status.

I came away from my interview with Souter with the view that he was a centrist justice in the mold of former Justices Potter Stewart, Byron White, Lewis Powell, and John Paul Stevens. I specifically came away from the interview with the belief that Souter would not vote to overrule Roe v. Wade but would follow it for stare decisis reasons. I recommended appointing Souter to the First Circuit since he was significantly more conservative than was the Warren Court liberal who was offering to resign.

Calabresi was “horrified” when he learned Souter was placed on the short list, and criticizes William Bradford Renyolds as “not especially bright”:

I was horrified why Attorney General Meese’s top advisor on Supreme Court appointments, William Bradford Reynolds, put Souter on a list of fifteen possible Reagan Supreme Court nominees, which seemed to me at the time to be utter folly. Reynolds did this for the same reason he evinced some warmth for Anthony M. Kennedy. He wrongly thought that Souter, unlike Kennedy, shared Reynold’s ardent opposition to affirmative action. My reading of Brad Reynolds on judicial appointments was the he was a single issue voter whose issue was opposition to affirmative action and who did not really care about the abortion issue or religious liberty. In any event, Reynolds proved to have been spectacularly wrong on Souter and affirmative action, which did not surprise me since I thought Reynolds was not especially bright nor was he a good reader of other people.

Calabresi recounts the familiar facts of how Souter was selected:

The next Supreme Court vacancy after the one filled by Justice Kennedy occurred during the administration of George H.W. Bush. Bush’s White House Chief of Staff, John Sununu; White Council, Boyden Gray; Bush’s Attorney General, Dick Thornburg; Bush’s Solicitor General, Ken Starr; and Bush’s future Attorney General William Barr all came together to get Bush to make the fateful mistake of nominating David Souter to the Supreme Court.

He faults Boyden Grays for wanting to appoint another Potter Stewart to the Court:

Prior to Bush’s 1988 presidential campaign, Boyden Grey, who was Bush’s chief legal advisor gave a speech to the Washington, D.C. lawyers’ chapter of the Federalist Society in which he said that if elected President Bush would strive to appoint Supreme Court justices like Potter Stewart. This speech greatly upset judicial conservatives and libertarians at the time since Potter Stewart had concurred in Roe v. Wade and was a centrist member of the Burger Court who was well to the left of Justice Scalia and Chief Justice Rehnquist. Once in office, as White House Council, Boyden Gray became enamored of moderate Republican Ken Starr as a Supreme Court nominee, who as we explained above had a bad voting record as a judge on the D.C. Circuit.

And revealed inside dirt about Ken Starr not voting to overturn Roe:

Gray decided Starr should be Bush’s first choice for the Supreme Court and ensconced him in the office of Solicitor General – a post that can lead to a Supreme Court appointment. Congressional Democrats conveyed their strong approval of Starr to the Bush Administration, and I heard at least one report, claiming that Starr had assured liberal Yale Law Professor Burke Marshall that he would never vote to overrule Roe v. Wade. (I had and still have a back channel to goings on at Yale Law School since my Uncle was the Dean there).

AG Thornburg told Gray that Starr was too liberal! So they turned to Souter.

Unbeknownst to Boyden Gray, Starr’s liberalism, stubbornness, and huge ego as Solicitor General was quietly infuriating Attorney General Thornburg and future Attorney General William Barr. When Justice Brennan unexpectedly retired creating a critically important vacancy on the Supreme Court, Boyden Grey met with Attorney General Thornburg to discuss filling the vacancy with Grey’s top choice, Ken Starr. To Grey’s astonishment, Attorney General Thornburg told Grey that Ken Starr was too liberal to be suitable for appointment to the Supreme Court, and that he Thornburg would resign in protest if Starr was nominated. The Bush Administration was already in hot water with Reaganite Republicans because Bush had fired 90% of the Reagan political appointees in the executive branch to replace them with moderate or liberal Republicans. A Thornburg resignation over an allegedly liberal Supreme Court pick was too costly to contemplate. A Ken Starr appointment to the Supreme Court was now out of the question.

And the process to replace Brennan was rushed:

Unfortunately, neither Boyden Grey nor Attorney General Thornburgh had given any thought to who else they might appoint to the Supreme Court other than Ken Starr, and they never conducted an exhaustive review of fifteen candidates as the Meese Justice Department had done. They were also determined to come up with a nominee very quickly. Bush’s very powerful White House Chief of Staff John Sununu and liberal Republican Senator Warren Rudman pushed hard for the appointment of Judge David Souter who was by then on the First Circuit. Souter derived added legitimacy from William Bradford Reynolds having placed him on Ronald Reagan’s list of fifteen possible Supreme Court nominees. Souter quickly emerged as Boyden Grey’s second choice, which is not altogether surprising because Gray had described Potter Stewart as being the ideal justice he was looking for and was hoping to appoint and Souter is only slightly to the left of Potter Stewart.

Calabresi recounts this story of Souter’s swearing-in:

I went to Souter’s swearing in at the White House and waited in line to shake his hand. When I got to do so I reintroduced myself to him, and he immediately recalled his interview with me at the Justice Department. The smile vanished from his face, and he dryly said he was happy I had survived into the Bush Administration to witness the moment of his swearing in. He was openly unfriendly.

And, for good measure, Calabresi has this to say about Posner:

Up until now I have purported to take Posner’s argument with Scalia on its own terms, but I do not feel I can in all honesty leave matters there. The relationship between Posner and Scalia is affectionate on Scalia’s side but filled with envy, pettiness, and anger on Posner’s side, at least in my opinion. Posner is the author of more than forty books, countless law review articles, and countless judicial opinions. I think he feels that he was far more successful as a law professor and a founder of law and economics than Scalia was when he taught at the University of Chicago School of Law. I think Posner blames Scalia for steeling his seat on the Supreme Court, and he quite personally and pettily resents and is envious about Scalia’s very visible presence on the High Court as one of its leading members. When Judge Robert H. Bork was nominated to the Supreme Court in 1987, Judge Posner joined Senator Ted Kennedy in trying to squash Bork’s nomination by writing an article in the New Republic entitled “What am I? A Potted Plant?” The point of the article was to argue for more judicial law-making than Scalia, Bork, or Ed Meese thought proper. Posner’s attack on Heller is thus just the latest and pettiest manifestation of his envy, spite, and anger at losing out for the best legal job in the country to Justice Scalia.

Calabresi explains that NO ONE wanted to appoint Posner to the Court:

The reality is that in all the extensive work I have done both in government and out of government for President Ronald Reagan, President George H.W. Bush, and President George W. Bush I have never, ever once heard ANYONE say that they thought we should consider Richard Posner for appointment to the U.S. Supreme Court. When the Meese Justice Department compiled detailed files on its fifteen most promising candidates for appointment to the Supreme Court, Richard Posner’s name was not on the list. When George H.W. Bush and George W. Bush kicked around names of possible Supreme Court nominees, Richard Posner’s name was again never on the list. When Posner’s name did come up, which was rarely, it was so that we could laugh about his immoral and politically fatal proposal to reform adoption law by legalizing the selling of babies. Posner was not respected by any of the last three Republican Administrations. He was the butt of a joke. If Scalia had not been appointed to the Supreme Court in 1986, the seat would have gone instead to Robert Bork, or Doug Ginsburg, or Ralph Winter, or Anthony Kennedy, or Patrick Higginbotham, or J. Clifford Wallace, or Larry Silberman, or Jim Buckley, or Stephen Williams, but certainly not to Richard Posner. It was not Justice Scalia who kept Richard Posner off the Supreme Court. Justice Scalia has had nothing but nice things to say about Posner over the last 28 years. The thing that kept Posner off every single Supreme Court list I have ever seen is his baby selling proposal, his weird personality, and his supreme penchant for judicial lawmaking in the guise of law and economics rather than originalism. Posner has no-one to blame but himself for the fact he was not appointed to the Supreme Court.

And Judge Wilkinson:

Judge J. Harvie Wilkinson is yet another inferior federal court judge who is a Supreme Court wannabe and who is envious of Justice Scalia and angry to have been passed over, at least in my opinion. … Unlike Judge Posner, who has never ever been considered for appointment to the Supreme Court, Judge Wilkinson was seriously considered by the Administration of George W. Bush for appointment to the High Court. He was interviewed by the President and was passed over in favor of brighter, younger, and more originalist judges like John Roberts and Sam Alito. Once again, Justice Scalia, on whom Judge Wilkinson vents his wrath, has never said a negative word to me about Judge Wilkinson. Judge Wilkinson has only himself to blameforthefacthewasnotappointedtotheSupremeCourt. HiscampaignagainstJustice Scalia is nothing more than sour grapes and is unfair to Scalia who is not responsible for the fact that Judge Wilkinson talked himself out of a job when he was interviewed by President George W. Bush.


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Feb 27, 2015

FiveThirtyEight Priors and Precedent Feature: FantasySCOTUS Predictions for EEOC v. Abercrombie and Fitch

The very-cool FiveThirtyEight will be using FantasySCOTUS predictions for pending cases. The first feature by Oliver Roeder looks at EEOC v. Abercrombie and Fitch.

Here I’ll turn to two sources: the {Marshall}+ algorithm — a computer program designed specifically to predict court cases — and the wisdom of the crowd at FantasySCOTUS — fantasy baseball’s even nerdier little brother. This is how likely those predictors view a Supreme Court reversal vote from each justice — a reversal would be a win for the EEOC and Elauf.

The predictions are all over the place, and most are made with little confidence — the likelihood of many justices voting to reverse the 10th Circuit decision hovers near the middle.


The computer algorithm foresees a 7-2 reversal, with Justices Antonin Scalia and Clarence Thomas dissenting. The crowd predicts the opposite — a 9-0 affirm as of Tuesday morning, but with a few justices more or less on the fence. And not everyone in the crowd agrees. “As it stands now, some of our best players are across the map on this case,” Josh Blackman, FantasySCOTUS’s creator, told me.

The crowd predictions may well improve. Some predictors will pore over the oral argument transcript looking for clues in the justices’ questions. But there’s only one way to find out what’ll happen for sure — wait. The court will likely issue its decision in this case in June.

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Feb 26, 2015

WSJ Op-Ed on King v. Burwell by Ilya Shapiro and Me: “A Litmus Test for ObamaCare and the Rule of Law”

The Wall Street Journal published an Op-Ed co-authored by Ilya Shapiro and me on our amicus brief in King v. Burwell. In honor of the 800th anniversary of Magna Carta, and the fact that the lead Plaintiff is named “King,” we struck a fitting rule of law theme. It is titled, “A Litmus Test for ObamaCare and the Rule of Law.” The Op-Ed discusses the many ways that the ACA has been modified, delayed, and suspended, at a whim.

Here is the opening:

This spring will mark the 800th anniversary of the signing of the Magna Carta, the landmark agreement by King John of England at Runnymede ceding certain rights to rebel barons. Liberty will have another chance to shine on Wednesday when the Supreme Court hears a case with momentous implications about another sort of executive power. In this instance, though, it is the rebels who have the royal name: King v. Burwell raises questions about how President Obama has enforced the ObamaCare law—or, more precisely, modified, delayed and suspended it.

This case isn’t about statutory interpretation, but the rule of law itself:

Executive lawmaking of this sort poses a severe threat to the separation-of-powers principles enumerated in the Constitution. The president has acted on the belief that legislative gridlock allows him to transcend his constitutional limits. A ruling that upholds this behavior would set a dangerous precedent for the nascent health-care law, which will be implemented for years to come by administrations with different views. More troubling, such a precedent could license virtually any executive action that modifies, amends or suspends any duly enacted law.

King, which the Supreme Court is expected to decide in June, is thus about much more than interpreting statutory language or evaluating the “deference” that judges owe bureaucrats. It isn’t a technical debate over the finer points of administrative law; it is an existential one about the rule of law itself.

And the conclusion:

Chief Justice John Roberts was correct in 2012 when he wrote in the NFIB v. Sebelius decision that it isn’t the court’s role to “express any opinion on the wisdom of the Affordable Care Act.”

But he also correctly noted “the Framers created a Federal Government of limited powers, and assigned to this Court the duty of enforcing those limits.” The court’s duty is to be a bulwark against arbitrary rule.

This is especially true in disputes between the political branches; the judiciary thus provides the ultimate safeguard of the separation of powers. Or, as Justice Robert Jackson put it in the famousYoungstown case of 1952 that rebuked President Truman ’s unilateral seizure of steel mills: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.”

The president has shown deliberate indifference toward the plain text of the law. The Supreme Court must strike down the IRS rule and confirm the principle that, like King John at Runnymede, all political leaders are bound by the rule of law.


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Feb 25, 2015

Video: My Testimony Before The House Judiciary Committee on the Constitutionality of DAPA

Today I testified before the House Judiciary Committee on the Constitutionality of DAPA. You can download my testimony here or on Scribd. During the hearing, I was given five minutes for opening remarks. Afterwards, over the next 3 hours, members of both parties peppered the panel with questions. Most of the questions were focused on Professor Stephen Legomsky, the minority witness. It was a very rewarding, and enjoyable experience, and I’m very proud that I could discuss the Constitution, and cite Federalist No. 51 before the House of Representatives.  I’ll have some more thoughts on the merits in a subsequent post.

C-SPAN has video of the entire hearing here. I have clipped a few highlights.

Here is my five-minute opening statement. My parents, who travelled from New York for the hearing, got a special shout-out.

Second, I explain that many law professors who support DAPA argue that the DOJ did not go far enough, and they should have offered deferred action to the parents of the Dreamers.

Third, I reiterate the point made in Noel Canning that gridlock does not license the President to transcend the executive powers. I also discuss the Arizona v. United States decision, and stress that Justice Kennedy’s opinion turns on “individualized” discretion.

Fourth, I explain how the Heckler v. Cheney standard closely tracks the Take Care Clause Analysis, and that Judge Hanen showed his hand on how he would rule.

Fifth, my longest exchange of the day was with Rep. Poe (R-TX), who first gave very nice praise to the South Texas College of Law, and Dean Gerald Treece. Then, he asked me what would happen if future Presidents declined to enforce the law. I explained that this is already happening, as the President has delayed Obamacare’s mandates severla times. Poe replied, “When I ask you what time it was, you built me a watch.” I’ll take the compliment, sir.

Sixth, I explained that the *only* examples of DACA denials the DOJ could cite, outside of categorical denials, involved those who were engaged in gang activity, or fraud in previous applications. (You can see my mom sitting behind Prof. Legomsky).

Seventh, I discuss how Congress has acquiesced to much narrower versions of deferred action.

Eighth, my final colloquy with Rep. De Santis focuses on how the Congress can check the Presidency with the power of the purse.

Here are some photos:






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Feb 25, 2015

Testimony Before House Judiciary Committee

Today at 10:15 I will be testifying before the House Judiciary Committee on the constitutionality of DAPA. You can download my testimony here. The event will be on

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