Apr 19, 2015

SCOTUS Goes Hollywood – “Woman in Gold” and Austria v. Altmann

Woman in Gold tells the story of Maria Altmann, who sued the Austrian Government to recover paintings that were stolen by the Nazis. This case culminated in the Supreme Court’s 2004 decision in Republic of Austria v. Altmann, finding that the Foreign Sovereign Immunities Act was not retroactive, and did not serve as a jurisdictional bar. The movie itself was okay (great story, weak acting other than Helen Mirren), but the scene in the Supreme Court was so terrible, I laughed out loud in the theater.

The entire scene lasted maybe two minutes, and it was painfully inaccurate.

First, the design of the Court wasn’t even close. There were red curtains on the side, no bar separating the lawyers from the audience, and Altmann (the client) sat second chair! Before the hearing started, she took out a box of cough drops and gave one to her lawyer, Schoenberg.



The actors they selected to play the Justices were passable, but the name tag in front of Chief Justice Rehnquist was absurd. (At least they got the gold stripes).


Also, why in the world is there a fan next to Justice Breyer!? Is he not cool enough on his own (don’t answer that).


Justices Kennedy and Thomas have a carafe of water in front of them:


And Justice O’Connor has a proper neck doily.


I could not find a video with Justices Stevens, Scalia, Souter, and Ginsburg.

Second, the petitioner got up, said “I’ll be concise”, and made an argument for about 15 seconds. That’s it. Then he sat down. He gets no questions.

Third, the United States got up. The lawyer playing Deputy Solicitor General Thomas Hungar looked like he was about 70 years old.  At least he was wearing a morning coat. He said something about how if this case goes forwards, other claims against Japan may be brought. This actually happened:

Chief Justice Rehnquist: Yes.

Mr. Hungar: The… we… there are currently cases pending against countries such as Japan and Poland, with which… which this country previously entered into agreements which both sides thought had resolved the issue entirely, and to now retroactively apply a substantive provision that this Court recognized in Ex parte Peru is a substantive, not merely jurisdictional, but a substantive legal defense, to apply that retroactively would be to change settled expectations, change the rules, and it should not be done.

Then Chief Justice Rehnquist looked at the octogenarian Altmann, and said something to the effect of, “If we rule for you, then we have to worry about claims from Japan.” Everyone in the audience started laughing. (Well, the Chief did join Justice Kennedy’s dissent, ruling against Altmann, so maybe he was thinking this.).

Fourth, Schoenberg’s argument was so, so, so terrible. Here is a rough transcript:

We’re very sensitive to the government’s concerns, Mr. Chief Justice. It is the can of worms argument . . . . We recommend opening the can. And extracting one little worm with a pair of tweezers and quickly closing it shut again . . . . This is a case of one woman, wanting back what is rightfully hers . . . . Let’s give her justice too.

Yes, this is actually the argument made. I burst out laughing. I couldn’t help it.

Perhaps the only thing that was semi-accurate was that in the movie Chief Justice Rehnquist asked a question of Schoenberg. I had no idea what the question was, something about jurisdiction that made no sense. In the movie, Schoenberg replied something to the effect of “I didn’t understand that question.” Apparently, that actually was said. Justice Souter asked some question, and Shoenberg replied:

“Well, I’m . . .  I’m not sure that I understand the question.” (Turn to 27:59 on Oyez).

There was one scene earlier in the movie where Ronald Lauder (the heir to the Estee Lauder fortune) unsuccessfully tries to get Altmann to drop her lawyer and have someone more experienced argue before the Court. (Her lawyer had never argued a case before SCOTUS before). According to “Lady in Gold,” the book that was the basis for the movie, Lauder suggested that she hire Robert Bork! According to Oyez, Bork only had one argument since the 1990s–the 2002 case of  Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. The role of Lauder was played by some actor named Ben Miles, but I think Tom Goldstein could have pulled it off much more naturally–and maybe he would have snagged the client too!

Watch the clip at your own peril. It’s painful to watch.

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Apr 16, 2015

In Face of Veto Threat, President Backs Down From Executive Action

The Times has an important overview of the President’s decision to back down from vetoing the bill of Iranian sanctions in the face of a veto-proof majority. The article ties together gridlock and executive power, and makes clear that when even the President’s own party thinks he has over-reached, he acquiesces.

In his assertions of executive power to advance his agenda in an era of gridlock, President Obama has been largely on offense. But his latest battle with Congress not only left him on defense, it actually broke the gridlock. Against him.

Mr. Obama’s abrupt decision to sign a compromise version of legislation on Iran that he had previously vowed to veto was a bruising retreat in his larger campaign to act without Congress’s getting in his way. In this case, partisanship gave way to rare consensus on Capitol Hill: Both sides agreed that he was wrong to cut them out.

The White House tried to make the best of the setback, arguing that the bipartisan bill was less objectionable than the initial draft. But the president’s concession in the face of potentially veto-proof majorities underscored that even his fellow Democrats believed he had overreached in trying to operate on his own. And it suggested that he may be approaching the outer boundaries of his authority with 21 months left in office.

I can’t imagine any other circumstances where the President’s own party would stand up against his domestic policies, for example with respect to immigration or Obamacare. Maybe, for now at least, foreign policy is still a safe zone for bipartisanship.

I would counter that the watered-down bill which the President signed has few meaningful restraints, and lets the President negotiate unfettered. As Yishai Schwartz noted on Lawfare, the President is “perfectly pleased” to sign this new deal.

The White House gained the high ground in any confrontation over the Iran deal the moment its lawyers discovered the sanctions regime could be dismantled by executive action. From then on, Congress and the potential deal’s critics have been playing defense. The delay period imposed by the revised Iran Nuclear Agreement Review Act at least offers some check on the executive. But a check of some sort was likely inevitable—and this one is rather minimal. In the long-term, the appearance of this check may simply offer the president a bit more legitimacy as he unilaterally carries a deal across the finish line.

This bipartisan bill may have been a way to shield the President from a tougher bill. Now, he can show face. The Times explains:

Still, as a practical matter, this bill is no more likely to actually stop the deal with Iran than the original version. Under either version, Congress could pass a resolution rejecting the Iran agreement, but Mr. Obama could veto it, meaning he needs to hold onto no more than 34 senators or 146 House members to prevent an override.

As a side note, the President says he has “exhausted” his executive powers.

And during an appearance here on Wednesday to talk about issues like pay equity, Mr. Obama acknowledged that he had fewer options left for using his power without congressional support. “We’ve probably exhausted what I can do through executive actions,” he told a woman who asked if he could do more on his own to equalize pay between men and women.

Color me not persuaded. He made these exact comments after DACA, and said he could not expand his powers with respect to immigration. Then, we got DAPA.

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Apr 14, 2015

Texas Files Supplemental Opposition to Stay in Texas v. U.S.

You can download it here

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Apr 14, 2015

Bloomberg BNA on Crane v. Johnson

Kimberly Stawbridge Robinson (no relation to Curtis) wrote a solid overview of Crane v. Johnson–Mississippi’s challenge to DACA–which the 5th Circuit recently tossed on standing grounds. I am quoted in a few spot:

Tipping Its Hat. Josh Blackman, who filed an amicus brief with The Cato Institute supporting the state in the Texas case, said that the Mississippi and Texas cases ‘‘are quite different.’’

Blackman, a law professor at the South Texas Col- lege of Law, Houston, told Bloomberg BNA via e-mail April 8 that the Mississippi ‘‘case was filed in 2012 shortly after DACA was implemented. To show stand- ing, [Mississippi] relied on an outdated 2006 report on the effect of illegal immigration on the state.’’

The Fifth Circuit said that was insufficient to confer standing.

‘‘Mississippi submitted no evidence that any DACA eligible immigrants resided in the state,’’ the court said. ‘‘Nor did Mississippi produce evidence of costs it would incur if some DACA-approved immigrants came to the state.’’

‘‘Mississippi was required to demonstrate that the state will incur costs because of the DACA program,’’ the court said. ‘‘Because Mississippi’s claim of injury is not supported by any facts, we agree with the district court that Mississippi’s injury is purely speculative.’’

In contrast, Blackman said that the ‘‘Texas case was filed in 2014, two years after DACA was implemented. To show standing, Texas (and 2 other states) offered detailed affidavits documenting specific cost to the state for providing driver’s licenses to DAPA beneficiaries.’’

He said that a concurring opinion by Judge Priscilla Richman Owen ‘‘may have been tipping a hat’’ to Texas on how it could do a better job showing standing.

But Blackman said that while the record in the Mis- sissippi case ‘‘had virtually no basis to assess whether DACA was discretionary,’’ the record in the Texas case ‘‘has a trove of information about how DACA has been implemented.’’

‘‘On the merits, the 5th Circuit will have a solid re- cord to decide whether DAPA is in fact discretionary, or an ‘abdication’ of the law, as Judge Hanen found,’’ Blackman concluded.

Both Wydra and Blackman said that the issue is likely to land in the Supreme Court.

But Blackman predicted that if the court did agree to hear the case, arguments wouldn’t be heard until next fall.

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Apr 14, 2015

Wittes: POTUS “successfully turned congressional calcification and paralysis to his advantage”

Ben Wittes writes that the ISIS AUMF is now dead, and POTUS has won.

We see in this story why Obama was clever to play the AUMF debate the way he did, following the Syria AUMF debacle in 2013. Obama, recall, declared that he didn’t need a new AUMF, waited months to send up a draft, and then sent up a draft that contained authorities duplicative of those he already claimed. This wasn’t principled or good government, in any sense, but the result is that Obama has successfully turned congressional calcification and paralysis to his advantage.

The reason is that because of the way he postured the matter, nothing actually hinges for Obama on congressional passage of a new AUMF; the President, after all, claims the authority to do everything he wants to do against ISIL under current authorities. In fact, as I explained the other day, congressional failure to act arguably constitutes acquiescence to his broad claim of authority under the 2001 AUMF, since few of the members of Congress who are refusing to pass a new authorization are also claiming that the president lacks legal authority to take action. Many Republicans are actually complaining that he is not doing more than he is against ISIL.

Obama, in other words, put himself in a position in which congressional action would strengthen his hands and congressional inaction—always the likeliest outcome these days—would also strengthen his hand, or at least not weaken it.

It was a smart play on the part of White House lawyers. And lawmakers, true to form, are showing its tactical wisdom.

This is a point that Justice Scalia made in his Noel Canning dissent. In any long-term struggle between the President and Congress, the President will prevail due to the collective action problems of getting Congress to agree. These collective action problems are even stronger in our age of gridlock.

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Apr 14, 2015

Sen. Ron Johnson Offers Preview of How POTUS Will React to King v. Burwell

In the WSJ, Wisconsin Sen. Ron Johnson offers a prediction of how the President will react if the Court invalidates the IRS Rule in King v. Burwell.

If the court rules against him, President Obama’s response will be diabolically simple and highly effective. He will ask Congress to pass a one-sentence bill allowing the subsidies to flow through federal exchanges. At the same time he will offer governors a contract to convert their federal exchanges into state exchanges with a simple stroke of a pen.

He will also mobilize his massive national political operation. It is easy to imagine the advertising campaign that will promote his simple solutions and viciously attack any opposition. Heart-wrenching examples of Americans who have benefited from ObamaCare—and there are millions who have, through taxpayer subsidies—will flood every TV channel.

The mainstream news media will ignore or contest the stories of those millions who lost their coverage because of ObamaCare and who now find health insurance very unaffordable. Without an effective response from Republicans, there is little doubt that the crisis would allow President Obama to permanently cement ObamaCare in place.

I think this is exactly what will happen. And the President will veto anything that is not a one-sentence bill. As I’ve noted before, the Republicans will lose this game of chicken (see here, here, and here).

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Apr 13, 2015

POTUS: King v. Burwell is “Pretty Clear Cut”

Following up on his previous comments (here and here), the President weighed in once again on King v. Burwell.

President Obama said Monday expressed confidence that the Supreme Court will uphold a key portion of his healthcare law this summer.

“I’m confident in the Supreme Court applying its own rules of interpreting laws [and] will uphold the law,” Obama said in an interview with Portland, Maine, NBC affiliate WCSH. “It’s pretty clear cut.”

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Apr 12, 2015

Obamacare Talk in Tampa Tomorrow

On Monday at noon I will be speaking at Stetson Law School on the constitutional challenge to Obamacare, as well as Hobby Lobby and King v. Burwell. Fittingly, I will be speaking the state where the challenge was born–not too far from Pensacola, where the initial complaint was filed by Florida and other states. If you are in the Tampa area, please stop by!


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Apr 10, 2015

Posner Writes 22 Page Antitrust Opinion With No Citations To Caselaw Other Than Underlying Proceedings

Judge Posner’s opinion in Aircraft Check Services Company v. Verizon Wireless has no citations to caselaw in its analysis section. None. Not one. The only citations are to the underly proceedings. After a lengthy blockquote from a previous case that ends on page 5, there is not a single citation to any other case. Forget about any citations to the record. In case you were curious, the case was argued on Feb. 10 and decided on April 9.

Posner being Posner.

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Apr 9, 2015

President Obama Weighs in on King v. Burwell, Explains Court Will “Factor” Impact of Law on Health Care

The Hill reports on an interview President Obama gave on CNN concerning King v. Burwell.

First, he commented on the challenge to the IRS Rule:

“I think this is sort of the last gasp of folks who’ve been fighting against this for ideological reasons,” Obama said in an interview with CNN.

Second, he stuck to the party line that there is no Plan B if the Court invalidates the IRS Rule

“The truth is, is that there aren’t that many options available if, in fact, they don’t have tax credits,” Obama said. “They can’t afford to get the health insurance that’s being provided out there.”

The Supreme Court case, which will likely be decided in June, rests on the language in ObamaCare related to insurance subsidies, which the president defended as “pretty straightforward.”

Third, he offered a prediction of how the Court will rule:

“I don’t think the Supreme Court is going to adopt the arguments of those who are arguing that, somehow, tax credits given to people who live in Texas don’t apply where somebody who lives in Massachusetts does get the tax credits,” Obama said, repeating his previous explanation of the origin of the King v. Burwell controversy.

Fourth, the President explained that the impact of the ACA “will be factored in when the” Court decides the case:

Obama stressed that the healthcare law is already working to expand access and reduce costs for millions of people in the U.S. — something he believes the Supreme Court justices are likely to take into account.

“I get letters every day from people who say, you know what, the Affordable Care Act saved my life, or saved my kid’s life because I got insurance,” he said.

“We hear stories about that all the time and I think that will be factored in when the Supreme Court takes a look at this case.”

Update: TPM has extended quotes from POTUS:

“If you read the statute, it’s pretty straightforward and it’s pretty clear. So I’m not anticipating that the Supreme Court would make such a bad decision,” he said. “If the Supreme Court made a ruling that said the folks who have federal exchanges don’t get the tax credits what you’d end up seeing is millions of people losing their health insurance. And the truth is that there aren’t that many options available if in fact they don’t have tax credits, they can’t afford to get the health insurance that’s being provided out there.”

The President has pre-emptively labeled the Court ruling against him a “bad decision.” Flashbacks to 2012.

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Apr 9, 2015

“Writing is a muscle”

I’ve really enjoyed the recent posts on the 10th Anniversary of PrawfsBlawg. Howard Wasserman’s post makes a very important point about junior faculty members blogging:

I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle–the more you use it, the more you are able to use. Rather than distracting from “real” scholarship, being on this site has allow me to fulfill the need to do “other stuff” while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).

I couldn’t agree more. Everyone told me not to blog when I was a law clerk. Everyone told me that it would doom any chances of my ever becoming an academic. I can say, without much qualification, that I got my job in large part because of my blog. But more importantly, the exercise of blogging has trained and conditioned me to become a better writer. People often ask me how I can write so much. My answer is usually the same–I work quickly. And that isn’t by accident. Writing is a muscle. The more you write, the better you get at it. I can now type out a pretty detailed post in a manner of minutes. The same agility carries over when I am writing a law review article. Blogging isn’t for everyone, but it provides an intensive regimen to hone your analytical skills.


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Apr 9, 2015

Gender-Segregated Public Bathrooms

When I teach United States v. Virginia, I try to think of laws that involve gender classifications that would survive intermediate scrutiny. One of the the most useful examples I’ve come up with is a state policy of having separate bathrooms or locker rooms for men and women. I explain that a law providing for locker rooms segregated by race would easily flunk strict scrutiny. But locker rooms separated based on gender would survive intermediate scrutiny, right? In light of the developing caselaw in this arena, I don’t know if the answer will remain so clear. Two cases decided in the last week speak directly to this issue.

First, in an opinion by Judge Kim R. Gibson (for whom I clerked from 2009-11), the court rejected the claim of a transgender man who was denied access to the men’s bathroom and locker rooms at the University of Pittsburgh at Johnstown. Judge Gibson frames the issue in terms of the competing interest:

At the heart of this case are two important but competing interests. On the one hand is Plaintiff’s interest in performing some of life’s most basic and routine functions, which take place in restrooms and locker rooms, in an environment consistent with his male gender identity. On the other hand is the University’s related interest in providing its students with a safe and comfortable environment for performing these same life functions consistent with society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex. Additionally, the Court finds controlling the unique contours under which this case arises. Namely, the context is a public university, whose mission is primarily pedagogical, but which is also tasked with providing safe and appropriate facilities for all of its students.

What is the state’s interest in favor of the sex-separated bathrooms? The court answers, allowing people to have a “safe and comfortable environment.” Why is excluding the plaintiff inconsistent with a “safe and comfortable environment”? The question can only be answered with the next rationale offered by Judge Gibson: because of “society’s long-held tradition of performing such functions in sex-segregated spaces based on biological or birth sex.” Substitute the word “sex-segregated spaces” with “marriage,” and you have a page out of the Respondents brief in the upcoming marriage cases. Gibson adds further, “separating students by sex based on biological considerations—which involves the physical differences between men and women—for restroom and locker room use simply does not violate the Equal Protection Clause.”

If the Court holds this June that LGBT status is given heightened scrutiny under the equal protection clause, I don’t think these rationales will work anymore. I can see the government’s reply to this argument–the belief that the plaintiff’s presence in the bathrooms would eliminate this “safe and comfortable environment” is based on stereotypes and antiquated notions of socially-constructed gender roles.

The University offered this defense: “its policy is based on the need to ensure the privacy of its students to disrobe and shower outside of the presence of members of the opposite sex.” But this begs the question. Why is the desire of some to disrobe around people of the opposite sex warranted in justifying this form of discrimination?

Another possible rationale is that the state claims that excluding transgender people from the bathroom can be used to prevent sexual gratification. This conflates gender identity and sexual orientation–they are not always connected–and again reinforces stereotypes about sexual attraction based on so-called antiquated mores.

Even though there are physical differences between men and women, can’t the state achieve a more narrowly tailored solution by installing stalls in the bathroom to permit those who want privacy to have privacy, and those who don’t to use the open space? Unisex bathrooms may be reasonable accommodations, but still have the effect of stigmatizing and othering people like the Plaintiff in this case who declined to use a single-occupancy bathroom. The Virginia Military Institute created accommodations for female cadets. Why can’t the same be done in public bathrooms and locker rooms? If the doctrine continues to develop in the direction it is currently developing, I don’t see how public bathrooms can continue to exist as they do now.

Relatedly, the Times offers this story from the White House:

Officials also announced the creation of an “all-gender restroom” in the Eisenhower Executive Office Building, where many of the White House staff members work, to provide an additional option for transgender individuals who are not comfortable using either the men’s or women’s restrooms.

The second case of note involves not the Equal Protection Clause, but Title VII and bathrooms. Title VII, unlike the equal protection clause, applies to private businesses. As Chris Geidner reports, the EEOC held that “some of the most common problems transgender people face in the workplace — including bathroom restrictions” violate Title VII.

Lusardi was forced to use a single-user restroom and not the women’s restroom after transitioning in 2010. On the occasions when she used the women’s restroom — when the single-user restroom was out of order or being cleaned — she was confronted by a supervisor….

In the EEOC decision, provided to BuzzFeed News by Lusardi’s lawyers, the independent agency found that in addition the disparate treatment violation of Title VII, the Army also was guilty of harassment, subjecting her to a “hostile work environment based on sex” due to the restroom restrictions and by allowing the misgendering to continue “well after [the supervisor] was aware that [Lusardi]’s gender identity was female.”

(Three years ago, the EEOC took the position that discrimination against transgender people is a form of sex discrimination under Title VII. Just last week, DOJ filed suit against Southeastern Oklahoma State University, which allegedly denied tenure to a professor over her identity as a transgender woman.)

As I read the opinion, no medial procedure is necessary for a person to establish a gender identity, and others are prohibited from discriminating on this basis–including by denying access to a bathroom.

“Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else),” the opinion states. “An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” …

Later, when discussing the Army’s claim that it restricted Lusardi’s restroom use due to potential discomfort of other employees, the EEOC found that “supervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. … Allowing the preferences of co-workers to determine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.”

In a somewhat cryptic-comment, after noting the ebullience of the plaintiff and Transgender Law Center, Geidner suggests that not everyone in the LGBT community may be happy with the ruling:

It was not immediately clear how the EEOC decision will be received by government agencies and LGBT organizations. When the Macy decision came down in 2012, there initially was some reticence from other LGBT groups to discuss the ruling’s potential impact and from some areas of the federal government to apply the ruling to related legal provisions. Eventually, though, almost all LGBT groups and federal agencies joined in pressing the case that Title VII’s sex discrimination ban includes anti-transgender discrimination.

What is this “reticence” to discuss the “potential impact” of the law? Geidner does not say.

Judge Gibson’s opinion recognizes, implicitly, that this may not be the rule of law for long:

At the outset, the Court notes that society’s views of gender, gender identity, sex, and sexual orientation have significantly evolved in recent years. Likewise, the Court is mindful that the legal landscape is transforming as it relates to gender identify, sexual orientation, and similar issues, especially in the context of providing expanded legal rights. Within the context of these expanding rights and protections arises the profound question of self-identify, as exemplified by this case. But, while this case arises out of a climate of changing legal and social perceptions related to sex and gender, the question presented is relatively narrow and the applicable legal principles are well-settled.

As I’ve noted before, the Court’s upcoming decision on same-sex marriage is a lot harder than most people acknowledge.


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Apr 8, 2015

Congressional Inaction and the 2001 AUMF

Echoing a post from Jack Goldsmith, Ben Wittes argues that Congress’s inaction on opposing the President’s incursion against ISIS amounts to a de facto ratification of the President’s reading of the 2001 AUMF.

Today, I want to focus on another area where Congress is poised to do nothing: authorizing force against the Islamic State.

Specifically, I want to argue that this inaction has important consequences—though less in the fight against ISIS than in the relationship between the executive and legislative branches over war powers. In the context in which it is taking place, this inaction—in my opinion, anyway—constitutes a meaningful congressional acquiescence in the President’s bold and relatively attenuated claim of authority to confront ISIS under the 2001 AUMF.

Yet let’s review the inter-branch bidding so far. First, the President asserted that he didn’t need an additional congressional enactment because the 2001 AUMF already covered operations against the Islamic State. Then prominent key members of Congress moaned for months that he was operating without congressional involvement and argued that he should seek a separate authorization. In response, while continuing to maintain that he did not need one, the President sent up a draft authorization that would supplement—but not replace—the 2001 AUMF, thus effectively taunting Congress with the duplicative nature of its potential involvement in this space. In effect, President Obama told Congress to go through the motions of passing a resolution if it wished but to do so understanding that its actions wouldn’t matter.

This had the effect of relieving Congress entirely from responsibility—except perhaps moral responsibility—for authorizing force. Congress’s vote would only have operational importance if it somehow circumscribed the 2001 AUMF, in addition to passing a new one. So it’s not too surprising that, having been told that its action or inaction was symbolic only, Congress has not rushed to pass an AUMF.

But it’s worth pointing out that this inaction effectively embraces the President’s interpretation of the 2001 AUMF. Because almost nobody in Congress is arguing that current operations in Iraq and Syria are illegal. Indeed, the pressure is all in the other direction. People are complaining that Obama is not doing enough against the Islamic State, that we are showing weakness and lack of commitment, that our airstrikes alone are ineffective. Well, if you put those pieces together—(1) Congress is not complaining about the legality of what the President is doing, (2) Congress, in fact, seems to want the President to do more, and (3) Congress declines to pass a specific authorization to cover what he’s doing or to circumscribe the statute under which he claims to be operating—it follows that Congress must accept the claim of authority the President is making under current law.

I don’t think you have to be an enthusiast of executive power to read things this way. And this seems to me have potentially far-reaching implications for future interpretation of the AUMF.

This is a point I presaged in my article last summer Gridlock and Executive Power. Inaction, resulting in acquiescence, amounts to a ratification of the President’s flawed constitutional arguments.

Update: More from Jack Goldsmith on acquiescence and Bergdhal here and here.

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Apr 8, 2015

The Impact of Mississippi’s DACA Challenge on Texas’s DAPA Challenge

Marcia Coyle writes in the National Law Journal about how the 5th Circuit’s decision tossing Mississippi’s challenge to DACA may impact Texas’s challenge to DAPA. In contrast with my friend Stephen Legomsky, I do not think it makes that much of a difference, but for the first time in a while, the DOJ gets some good news on this case.

As the U.S. Department of Justice readies its defense of President Barack Obama’s immigration executive order in the U.S. Court of Appeals for the Fifth Circuit, its arguments have drawn an unexpected boost from a panel of that same court.

A unanimous three-judge panel in Crane v. Johnsonheld on Tuesday that the state of Mississippi and several federal U.S. Immigration and Customs Enforcement agents lacked standing to challenge the 2012 Deferred Action for Childhood Arrivals program, known as DACA.

“This decision has major implications for the appeal pending before the same court in Texas v. United States,” said immigration law scholar Stephen Legomsky of Washington University in St. Louis School of Law.

The government may find “slight” encouragement in the ruling, said Josh Blackman of South Texas College of Law. Still, he cautioned, the records in the two cases are very different.

Washington University’s Legomsky, who joined an amicus brief supporting the administration in the Texas case, said, “This conclusion wipes out the entire premise—that DACA and DAPA are not discretionary—for Judge Hanen’s determination that the APA required notice-and-comment rulemaking.”

Mississippi’s inability to show that the DACA program would decrease its net revenue rather than, as the administration claimed, increase it, applies to Texas’ arguments on standing, he added.

However, South Texas’ Blackman, who field an amicus brief in the district court supporting Texas on behalf of the Cato Institute, said, “I think the difference between the two cases is the record.” Mississippi filed its DACA challenge a week after the program was announced in 2012, he said.

“The record is very sparse,” Blackman said. “Mississippi had almost no evidence it would be injured by DACA. There was no track record. It relied on a 2006 study on the effect of illegal immigration on the state. It couldn’t prove concretely what the impact would be.”

Texas, to the contrary, has amassed a “huge file” establishing an impact, he said. The state had “very detailed affidavits from a number of state officials on the specific costs of applicants in terms of drivers’ licenses, down to the penny.”

On the alleged discretionary nature of the program, he added, “We’ve now had DACA for three years and almost everyone gets granted.”

On the standing ruling in the Mississippi case, the administration “doesn’t get much,” he argued. The “most troubling portion” of the opinion for Texas is the panel’s comments on the discretionary aspect of the program.

“Based on the record the court had before it, that was probably accurate, but the record before Hanen is different. Maybe the federal government has a slight benefit,” he said.

Panel rulings bind other panels within the circuit court.

While it is certainly true that conclusions of law from one panel are binding on another, the question of abdication is a factually-intensive question, based on the record before the court. A different panel could come to a different determination.

I should also note that contrary to some chatter that the Crane panel may also be the panel for Texas’s case, a colleague who is a frequent litigant in the 5th Circuit writes that the “5th Circuit’s Internal Operating Procedure’s don’t allow for games with assignments like the 7th or 9th Circuits.” (He means Posner and Reinhardt).


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Apr 8, 2015

Constitutional Covers: “Our Lost Constitution” and “Restoring the Lost Constitution”

Great minds think alike! Randy Barnett offered this blurb of Senator Lee’s new book:

“Senator Mike Lee knows how to tell a story. Combining historical fact and his own legal expertise with imagined dialogues and settings, Lee brings the sometimes dry and archaic debates of the constitutional convention in Philadelphia and other episodes to life, and with them the Constitution itself. This is truly an inspired, fascinating, and important book.”

See my previous discussions of Constitutional Covers for Chemerinsky, Balkin, Greve, Epps, Seidman, and my initial (and thankfully) unused design of my own.











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Apr 7, 2015

Two Orders From Brownsville: Motion for Stay Denied and Motion for Discovery Granted

There has been a flurry of activity in Texas v. United States today. Judge Hanen issued two orders (here and here) which have the effect of denying the government’s motion for a stay, and granting limited discovery.

First, with respect to the stay, Judge Hanen effectively reaffirmed his opinion granting the injunction.  Judge Hanen made clear that if one state has standing, all of the states have standing. This  isn’t controversial, but DOJ tried to wriggle out of this conclusion from Massachusetts v. EPA.

Thus, the Government has already fought this battle once in the Supreme Court and lost.

Following the dictates of the Supreme Court in Massachusetts, there is at least one plaintiff in this case that has established it will be directly damaged by the 2014 DHS Directive and that it has standing. This Court therefore has jurisdiction to hear the case. Consequently, the Court denies the Government’s requested relief based upon that ground.

Also, Judge Hanen stressed that other states may have standing, but due to the “emergent timeframe of this temporary injunction,” the other states have not yet made such a showing.

Next Judge Hanen focused on a point I made in several spots (here and here)–that work authorization is being used as an “incentive” to encourage people to sign up for DAPA.

The Government has acknowledged that its strategy with DAPA is to provide certain benefits as an incentive for individuals to apply for DAPA. [Hr’g Tr. 30, Mar. 19, 2015]. It also confirmed, through counsel, that offering these incentives is not an act of prosecutorial discretion: “I think an incentive for this pro – – the reason why deferred action in the department’s judgment works in a way that’s different than the prosecutorial discretion is it does provide an incentive for people to come out and identify themselves.” [Id. (emphasis added)].

Providing these benefits, though ostensibly authorized by statute, does not fall within the auspices of prosecutorial discretion. Rather, this is a lawmaking act unto itself totally apart from the discretion which the Secretary claims.

Judge Hanen elaborated that the work incentives are not necessary for the prioritization the government seeks to implement while the injunction is in place.

Importantly, however, as counsel for the Government admitted in open court, the Government does not need DAPA to effectuate this goal. [See, e.g., Hr’g Tr. 29‒31, Mar. 19, 2015]. The DHS could conduct the same investigation and provide such documentation designating certain illegal immigrants as low-priority law enforcement targets without additionally awarding legal status and the other benefits previously described in detail. (In fact, the DHS has always had the ability to do this. This Court’s injunction does not affect that ability.) Counsel for the Government explained that there might be a better turnout for this effort, however, if the DHS provided incentives. [Id. at 30]. While the wisdom and legality of incentivizing illegal immigrants to remain in the country illegally may or may not be debated at trial, what this revelation makes abundantly clear is that the Government has a workable and legal alternative.16 The States have no such alternative. When balancing the potential harms to each side (as required under the preliminary injunction analysis), the scales of justice greatly favor the States.

Second, Judge Hanen found that the United States mislead the court about granting three-year DACA prior to his order.

The Court finds that the Government’s multiple statements on this subject were indeed misleading, as detailed in the Order filed simultaneously with this Order. It also finds that the remedial measure taken by counsel for the Government through the filing of an “advisory” on March 3, 2015, was neither prompt nor fully candid.

However, the court declined (at this time at least) to issue sanctions or strike the pleading:

Despite this, a sanction as severe as striking the Government’s pleadings, while perhaps merited based upon the Government’s misconduct, would not at this juncture be in the interests of justice or in the best interest of this country. The issues contested in this case are of national importance, and the outcome will affect millions of individuals. The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit. Consequently, while this Court may impose some other sanction in response to the misrepresentations made to the Court, it will not strike the Government’s pleadings.

Of course, striking the pleading would mean Texas wins the case.

Hanen does rake the government over the coals, and accuses them of actively deceiving the court:

This Court expects all parties, including the Government of the United States, to act in a forthright manner and not hide behind deceptive representations and half-truths. That is why, whatever the motive for the Government’s actions in this matter, the Court is extremely troubled by the multiple representations made by the Government’s counsel―both in writing and orally―that no action would be taken pursuant to the 2014 DHS Directive until February 18, 2015.

And the Court relied on these misrepresentations:

Clearly, if a “clarification” on any ongoing actions taken by the DHS was ever necessary, which of course it was, this was the time. Silence here, and then later during the scheduling discussion, was misleading. Whether by ignorance, omission, purposeful misdirection, or because they were misled by their clients, the attorneys for the Government misrepresented the facts. The Court, relying on counsels’ representations, not only gave the Government extra time for its briefing, but it also took February 18, 2015, as the agreed-upon date by which to rule on the motion for a temporary injunction.

Even more troubling for the court was the “conduct after the fact”

The explanation by Defendants’ counsel for their conduct after the fact is even more troublesome for the Court. Counsel told the Court during its latest hearing that she was unaware that these 2014 DACA amendments were at issue until she read the Court’s February 16, 2015 Order of Temporary Injunction and Memorandum Opinion and Order (referred to jointly as the “February Opinion”). [Hr’g Tr. 16, Mar. 19, 2015]. Counsel then claimed that the Government took “prompt” remedial action. This assertion is belied by the facts. Even if one were to assume that counsel was unaware that the 2014 DACA amendments in their entirety were at issue until reading this Court’s February Opinion, the factual scenario still does not suggest candor on the part of the Government. … Despite having had almost a week to disclose the truth―or correct any omission, misunderstanding, confusion, or misrepresentation―the Government did not act promptly; instead it again did nothing. Surely, an advisory to this Court (or even to the Court of Appeals) could have been included in either document filed during this time period. Yet, counsel for the Government said nothing. …

Regardless, by their own admission, the Government’s lawyers knew about it at least as of February 17, 2015. Yet, they stood silent. Even worse, they urged this Court to rule before disclosing that the Government had already issued 108,081 three-year renewals under the 2014 DACA amendments despite their statements to the contrary.

Another week passed after the Motion to Stay was filed and still the Government stood mute. On February 24, 2015, this Court gave the States until 5:00 p.m. on March 3, 2015, to file a reply to the Motion to Stay. Still, the Government’s lawyers were silent. The States filed their response on March 3, 2015, at 4:46 p.m. CST. Finally, after waiting two weeks, and after the States had filed their reply, the Government lawyers filed their Advisory that same night at 6:57 p.m. CST. Thus, even under the most charitable interpretation of these circumstances, and based solely upon what counsel for the Government told the Court, the Government knew its representations had created “confusion,” but kept quiet about it for two weeks while simultaneously pressing this Court to rule on the merits of its motion. …

But the facts clearly show these statements to be disingenuous. The Government did anything but act “promptly” to clarify the Government-created “confusion.”

Citing Rule 3.3 of the ABA Model Rules, the court found the government acted unethically:

Fabrications, misstatements, half-truths, artful omissions, and the failure to correct misstatements may be acceptable, albeit lamentable, in other aspects of life; but in the courtroom, when an attorney knows that both the Court and the other side are relying on complete frankness, such conduct is unacceptable.

As a result, the court finds discovery is warranted. And the order is a doozie!

At a minimum, however, Defendants have created special circumstances that necessitate further investigation. The Court finds that good cause exists for the pursuit of tailored discovery.

The Court orders the attorneys for the Government to file, complete with courtesy copies to the Court and Plaintiffs, the following: (i) any and all drafts of the March 3, 2015 Advisory [Doc. No. 176], including all corresponding metadata and all other tangible items that indicate when each draft of the document was written and/or edited or revised; and (ii) a list of each person who knew about this Advisory, or about the DHS activity discussed therein, and each person who reviewed or approved its wording or filing, as well as the date and time when each person was apprised of this document and/or its contents, or of the DHS activity that is the subject matter thereof. No documents, electronic mails, texts, communications, or tangible items (including without limitation all computer records, hard drives, and servers) of any kind that deal with the Advisory or the subject matters discussed in the Advisory, whether or not owned by the Government, are to be destroyed or erased. While this Court does not foresee any privilege problems impacting the merits of this case, given that a ruling on the merits of the Government’s Motion to Stay is being issued simultaneously with this Order, any privileged material shall be filed in camera with a privilege log supplied to the Court and opposing counsel.

Oh, and by the way, the government was two weeks to do this…

The Government has until April 21, 2015, to comply with this Order. Following their review of the documents produced, the Plaintiff States shall file with the Court a list of any further discovery that they may deem necessary, with a brief summary of why that discovery is relevant. The States have until May 1, 2015, to do so. The Government shall have until May 8, 2015, to respond to the States’ request. The Court will then consider those requests and issue an appropriate order as promptly as its schedule allows.

Stay tuned.



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Apr 7, 2015

5th Circuit Dismisses Challenge to DACA, but Concurring Opinions Weighs in on Standing

Today the 5th Circuit dismissed a constitutional challenge to DACA brought by immigration and customs enforcement officers and the state of Mississippi. Agreeing with the district court, the 5th Circuit panel (King, Davis, Owen) found the parties lacked standing. On the merits, this will have no bearing on Texas v. United States. But with respect to standing, Judge Owen offered a brief concurring opinion:

I concur fully in the court’s opinion and judgment. I write separately only to note that in order to establish standing with respect to some claims, it is not always necessary to present concrete evidence that an injury has occurred or will, beyond question, occur, as the Supreme Court implicitly recognized in Watt v. Energy Action Educational Foundation. 454 U.S. 151, 160-61 (1981). The State of Mississippi has not, however, made any arguments of this nature.

As I’ve discussed before, for purposes of standing, the facts are accepted as pleaded. Notwithstanding Lujan, you do not always need to provide “concrete evidence” that the evidence will occur. A reasonable probability is sufficient.

Why is this relevant? Because Texas justified most of its injuries from DAPA–which has not yet gone into effect–based on the operation of DACA–which went into effect in 2012. The permissive standard Judge Owen cites would allow evidence of how DACA operates as a basis for standing with respect to DAPA.

Note to Texas–cite Watt.


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Apr 7, 2015

Appointments “By Law” and Congress

I am currently working on a project concerning the meaning of “by law” in the appointment clause.

Art. II., Sec. 2. “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law

The appointments process has three steps, which are familiar from Marbury. First the President nominates the candidate. Second the Senate offers its advice and consent. Third, the President appoints the nominee. My question is this: can Congress prescribe “by law” how the appointment becomes final? It is generally understood that the Congress, acting pursuant to its Necessary and Proper power, can set certain qualifications for officers who are nominated. But what role does Congress play in designing the process to “appoint” a person to an office “established by law” after Senate confirmation. In other words, after the President has nominated the candidate of his choice, and the Senate has given its advice and consent to that candidate, can Congress prescribe “by law” what steps the President must take for the “appointment” to become final?

Consider Marbury. The position of “Justice of the Peace,” to which Marbury was appointed, was “established by law.” The process of completing this appointment was rigorously “established by law.” At the time, Congress provided by statute a procedure for appointments by the Secretary of State.

“An act of congress directs the secretary of state to keep the seal of the United States, “to make out and record, and affix the said seal to all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the senate, or by the President alone; provided that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States.”

When does “the power of the executive over an officer, not removable at his will . . . cease”? “When the constitutional power of appointment has been exercised.” In this case, “last act is the signature of the commission.” Who determined that this was the final act? Marshall answers that it was Congress–not the President, as “[t]his idea seems to have prevailed with the legislature.” Through the act that created the “department of state,” Congress provided that the Secretary of State “shall keep the seal of the United States, ‘and shall make out and record, and shall affix the said seal to all civil commissions to officers of the United States, to be appointed by the President.'” The seal could only be affixed after it had been “signed by the President,” or in the words of Marshall, “when it is complete.”

Once the commission is signed, the appointment is out of the President’s hands. After the ink on the signature has dried, the Secretary, acting pursuant to an order from Congress, is required to affix the seal. Marshall refers to this obligation as the “subsequent duty of the secretary of state [that] is prescribed by law, and not to be guided by the will of the President.” (emphasis added). In other words, Congress dictated by statute how the appointment must vest following confirmation by the Senate. The Congress, and not the President, decides at what step an appointment becomes final. Even if the President instructs the Secretary of State–who is removable at will–not to seal it,”[h]e is to affix the seal of the United States to the commission, and is to record it.”

Marshall makes clear that the “proceeding” established by Congress may not “be varied,” even if the “executive shall suggest one more eligible” for the office. Rather, the statute offers a “precise course accurately marked out by law, and is to be strictly pursued.” (emphasis added). Again, Marshall repeats the phrase, “by law,” stressing that Congress, not the President is in control here. To make the point even more clear, Marshall stresses that it is Congress that determined that “No other solemnity is required by law” beyond the sealing of the commission.  For “it is the duty of the secretary of state to conform to the law,” established by Congress, as he is an “an officer of the United States, bound to obey the laws.”

To support this conclusion, Marshall praises the arguments of Marbury that were “very properly stated at the bar.” A recitation of the arguments by “their counsel, Charles Lee, esq., late attorney General of the United States” is instructive. In creating the office of the Secretary of State, Congress instructed that office to “to affix the seal of the United States to all civil commissions, after they shall have been signed by the President.” Lane seems to have no problem with Congress ordering the Secretary of State to affix the seal. Even though the Secretary of State is “responsible only to the President,” the President cannot “prevent him . . . [from] affixing the seal to civil commissions of such officers as hold not their offices at the will of the President, after he has signed them and delivered them to the secretary for that purpose.” If the Secretary of State refuses to do so, “he may be compelled by mandamus, in the same manner as other persons holding offices under the authority of the United States.” In other words, after the President has signed the commission, pursuant to the procedures “established by law,” the Secretary of State is obligated to seal the commission. Stated succinctly, “[t]he secretary is called upon to perform a duty over which the President has no control, and in regard to which he has no dispensing power, and for the neglect of which he is in no manner responsible.” This “seal”–not delivery–becomes the final act for purposes of appointment.

Marshall concludes that “since [Marbury’s] was signed by the President, and sealed by the secretary of state, [he] was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable; but vested in the officer legal rights, which are protected by the laws of this country.” In short, “To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right..” At every juncture, it is the laws of Congress that provided how Marbury obtained his office following confirmation.

This precedent seems to suggest that Congress has significant control over how an appointment vests. Rather than requiring the Secretary of State to seal it, presumably, Congress could set a number of other ministerial tasks before an appointment becomes final. In other words, the President’s signature, by itself, is not enough when Congress provides a contrary procedure “by law.”

There isn’t much caselaw on this question. The Supreme Court seemed to recognize this conclusion implicitly in Freytag v. Commissioner of Internal Revenue (1991), noting that the “office of special trial judge is ‘established by Law,’ Art. II, § 2, cl. 2, and the duties, salary, and means of appointment for that office are specified by statute.”

In Burmap v. United States  (1920), Justice Brandeis stated that when the laws of Congress are silent about how an inferior officer is to be appointed, that duty devolves onto the Department Head.

There is no statute which provides specifically by whom the landscape architect in the office of public buildings and grounds shall be appointed. As the office of public buildings and grounds is a part of the bureau of the Chief of Engineers, and that bureau is in the War Department, the Secretary of War would, under section, have the power to appoint the landscape architect as an employé in his department, in the absence of other provision dealing with the subject. 21 Op. Attys. Gen. 355.

While this doesn’t answer the threshold question of what conditions Congress can place on the appointment of an officer, it seems to presume that had Congress legislated on this matter, those laws would have prevailed over the Secretary’s determinations about the proper method for appointments.

The cited Opinion of the Attorney General Judson Harm confirms this reading:

I think that the word ‘employ’ in this section is used as the equivalent of ‘appoint’ (see Rev. Stat., secs. 60, 194); and therefore that the sole responsibility of every appointment in an Executive Department rests upon the head of that Department, except where otherwise specially provided by statute, as in Revised Statutes, section 476.

Taking a contrary view is Sai Prakash, who argues that Chief Justice Marshall was mistaken. Prakash contends that because the President is silent, the President gets to decide “when or how an appointment vests.”

Yet the Great Chief Justice was mistaken too. He wrongly insisted that delivery of a commission to the appointee and acceptance of the office were irrelevant because in both cases the President had already made the appoint- ment. The better view is that because the Constitution does not specify when or how an appointment vests, it leaves these matters to the appointer to decide. This discretionary theory posits that the Constitution cedes flexibility to appointers, permitting them to vest offices in a number of ways.28

Because the Constitution vests this power to the President, but does not specify how it should be exercised, Prakash claims that the best construction is that the President can decide how to exercise the appointment power.

This conclusion derives from a general principle of constitutional law: when the Constitution grants power to an entity but does not specify how and when the power must be exercised, the entity empowered may decide how and when to exercise that power. … Because the Constitution is best read as never dictating how or when an appointment vests, the President may decide those details with respect to his appointments. He might choose to have appointments automatically vest upon the Senate’s consent. He might elect to have an appointment vest as soon as a commission is signed, sealed, or delivered. Or the President might make appointments vest only upon acceptance of the office. Hence, Mar- shall and Jefferson were mistaken because each definitively rejected some methods when, in fact, the Constitution leaves it to the appointer to decide how and when her appointments will vest.  … Instead, the claim is that when the Constitution does not specify how a branch must exercise one of its powers, it implicitly delegates to that branch the ability to determine the means of exercising that power.

Prakash addresses the “difficult question” whether Congress “may dictate when appointments vest.”

Congress enjoys the power to enact necessary and proper laws for carrying into execution the powers of the federal government, including the appointment power.252 Some might suppose that the Necessary and Proper Clause includes authority to specify how and when appointment powers will be carried into execution.

He concludes that the N&P power does not stretch far enough to dictate to the President how to perform its appointment duties:

Yet there are sound reasons for doubting that Congress has power to tell the other branches how to exercise their powers, even when such congressional regulation might be beneficial.253 The Necessary and Proper Clause clearly enables Congress to help implement presidential and judicial powers, say by creating institutions that help the President and courts better exercise their respective powers. But the Clause, properly understood, does not empower Congress to direct how other branches exercise their respective powers. If it did, Congress might forbid presidential pardons for murderers and specify the content of the First Amendment to the courts. It seems rather unlikely that the Sweeping Clause sweeps so far. And if it does not permit such laws, the Clause likewise should not be read to authorize statu- tory rules for when an appointment vests.

The question, in my mind, becomes if Congress has the power to establish an office “by law,” can it set the qualifications for that office, and provide how an appointment becomes final. For example, by providing that delivery of the commission is necessary. Prakash notes that “The Court has yet to say whether Congress can either prescribe the means of appointment or establish conditions precedent to an appointment.” Prakash suggests the answer is no.

Relatedly, the phrase “By Law” appears 9 times in the Constitution.

  1. Art. I., Sec. 2. “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”
  2. Art. I., Sec. 4. “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
  3.  Art. I., Sec. 4. “The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”
  4. Art. I., Sec. 6. “The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States”
  5. Art. I., Sec. 9. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.”
  6. Art. II., Sec. 1. “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.” (Abrogated by the 25th Amendment).
  7. Art. II., Sec. 2. “He shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law
  8. Art II., Sec. 2. “but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
  9. Art. III., Sec. 2. “The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Each situation seems to be giving Congress, explicitly, a power to legislate, and even self-deal, in an arena that may otherwise seem to violate the separation of powers.

First, the “enumeration” clause gives Congress the power to design the census, which directly impacts the size of its own branch of government, and how many members are allocated per state. This directly impacts how the body is constituted, and which states will gain in representation.

Second, Congress can alter the “time, place, and manner” of the election of its own members (the meaning of this phrase will be addressed by the Court this term in the Arizona redistrict case). This important fallback power may override if the states decline to schedule elections for federal offices.

Third, Congress is given a power to alter when it meets. This may seem inconsequential, but in theory Congress could adjourn itself indefinitely to shut down the government–although the President has the power to convene Congress.

Fourth, Congress can set its own pay.  This power–subject now to the 27th Amendment, which was originally proposed in 1789–is the ultimate element of self-dealing.

Fifth, only Congress through appropriations can decide when the Treasury–an executive branch agency–can withdraw funds. By blocking funding, the Congress can cripple the Presidency.

Sixth, Congress could provide by law the method for removal of the President (this was abrogated by the 25th Amendment). Deeming the President unable to discharge his duties is a critical power over a constitutional crisis.

Seventh, as I discussed, it falls to Congress to “establish[] by law” the other officers to which the President can appoint officers. My question is what is the scope of this “establish[ment]” power.

Eighth,  Congress can delegate the appointment power “by law” for the “inferior officers, as they think proper” to the President or the Courts. While Congress is usually unable to delegate the legislative power, here, they can expressly delegate the appointment power to other branches of government, as they “think proper.”

Ninth, Congress can decide where crimes “not committed within any state” should be held. This is a significant power over the due process rights of defendants.

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Apr 6, 2015

The Government’s Appellant Brief Part III: The Limiting Principle for Texas’s “Driver’s License Theory of Standing.”

This is the third part in my series about the government’s appellant brief in Texas v. United States. Part I is here about the propriety of a “nationwide injunction.” Part II discusses the government’s use of DAPA as an “incentive” to get people to sign up for deferred action. This post will address what I think is the biggest obstacle for Texas’s “driver’s license” theory of standing: What is the limiting principle? In so many constitutional cases, the question always boils down to this issue.

The government’s brief charges that this approach to standing is “seemingly limitless”:

It allows States to sue based on nothing more than their disagreement with how federal officials prioritize their limited resources in light of real-world constraints—the very choices that the Constitution and federal statutes entrust to the Executive. Allowing States to manufacture Article III standing on the basis of such incidental and attenuated consequences would allow States to assert a seemingly limitless power to embroil the federal courts in reviewing virtually any exercise of discretion by the federal government.

“Seemingly limitless” is code for “no limiting principle.” Later in the brief, the government makes the argument more forcefully:

Most fundamentally, if the incidental and attenuated costs of state services provided to aliens with work authorization were a sufficient basis to enjoin the federal government’s immigration policies, a State could attempt to use similar incidental effects to justify a vast interference with countless exercises of federal immigration enforcement discretion, upsetting both the uniquely federal interest in immigration matters and separation-of-powers principles.

The district court’s driver’s-license theory of standing threatens to radically alter the balance between the States and the federal government contemplated by Article III, particularly, but not exclusively, in the realm of immigration enforcement.

Furthermore, neither plaintiffs nor the court identified any limiting principle that would confine the district court’s conclusion to the realm of immigration.

The brief lists several different actions that the government could take that may be challenged in federal court under this theory of standing:

The court’s rationale risks allowing States to second-guess any federal policy that has some downstream effect on States. Such a theory could invite States to attempt to challenge grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law. Article III provides no support for such a boundless theory of standing.

The limiting principle is a version of the slippery slope argument–if we allow standing here, then why won’t we allow standing in case X. It is a powerful legal argument that nearly defined the constitutional challenge to Obamacare. Here, the biggest challenge for Texas is not the merits, but why permitting “driver’s license standing” here will not drastically alter the power of states to challenge federal actions. I think there are several possible answers to this question.

First, the initial limiting principle concerns the linkage between the challenged non-enforcement and the claimed injury. The injury asserted by Texas is “fairly traceable to the challenged action,” the government’s non-enforcement. Under Texas law, an alien who is granted the status of deferred action is entitled to a driver’s license, which generates fixed costs for the state. The decision of the United States to grant this lawful status can be considered as  the proximate cause of the injury to Texas. But for the government’s adjustment of the alien’s status, Texas would not be required to offer a driver’s license. The response to this claim is, so what? The federal government adjusts the status of millions of aliens annually, rendering them all eligible for Texas’s driver’s licenses. And all federal policies impact state law, right?

Second, contrary to the government’s assertion, it isn’t true that “any federal policy that could trigger some service provided by state law,” could provide standing under Texas’s theory. Other than immigration, the government musters up a fairly unpersuasive parade of horribles of actions that could trigger standing: “grants of probation or supervised release for convicted criminals, or federal actions that result in individuals moving from one State to another, or indeed any federal policy that could trigger some service provided by state law.” None of these actions fit the mold. The decision of an Article III judge to grant probation, and release a criminal into a community is entirely at odds with the challenged non-enforcement of federal law. Any resulting costs to the state from supervised release of a criminal are attributed to Article III, not Article II. The government also cites “federal actions that result in individuals moving from one State to another” as a possible trigger. I don’t even know what that one means. The Article IV “Privileges or Immunities” clause guarantees movements between states. States cannot discriminate against out-of-staters.

In addition to immigration status, I think veterans status may trigger some benefits under state law. Any others? I think the category is fairly finite. Usually it works the other way around–a change in state status affects some sort of federal benefit. So this slope is not quite as high and steep as the government suggests.

Third, it is important to separate the aggrieved injury for purposes of standing, and the constitutional violation. In virtually every scenario where Texas provides a driver’s license to an alien with some lawful status, the underlying granting of that status was unquestionably lawful. The mere fact that Texas suffered an injury through fixed costs does not provide a substantive cause of action. The cost of providing the driver’s license served as a concrete injury to get into court for purposes of standing. Once there is standing, the plaintiff still must plead *some* cause of action. What will those causes of action be? To the point I made in the previous paragraph, what would the cause of action be when a judge releases a defendant on supervised release? None.

The mere fact that federal inaction inflicts an injury on the state does not mean the government acted unconstitutionally, or contrary to law.  Although state attorneys general are elected positions that relish in suing the federal government (remember Massachusetts v. EPA?), filing a frivolous claim–even with some injury–will quickly be turned away out of court. I suppose that State AGs could continue to file pointless suits based on “driver’s license” standing, but they would be promptly tossed. In this sense, the limiting principle is that the overwhelming majority of instances where inaction creates an injury, will be perfectly lawful. (And by now, you should recognize that Texas’s challenge is not frivolous).

Fourth, a related arguments is that states could pass laws in order to generate standing.  There is certainly a threat that a state could pass a law, knowing full well that some federal policy will conflict with it, in an effort to generate standing. Virginia attempted something like this in 2010, where it enacted a law stating that any federal law that imposed an insurance mandate would trigger an injury which the Commonwealth could challenge in court (I am grossly oversimplifying here). The courts correctly rejected this argument, which bordered on a parens patriae theory of standing, where the state steps to defend the rights of the individual. Here, Texas is not attempting to protect the rights of individuals, but defending an injury it suffers in its sovereign capacity.

Further, the government asserts that the Texas law results in a “self-inflicted injury,” as Texas could change the law to avoid this injury. I think this argument fails for two reasons. First Arizona, which had a similar license regime, attempted to change its law to disqualify DACA beneficiaries from receiving a license. The DOJ intervened, and argued that this classification was unlawful. Now, DOJ has attempted to dial this argument back, and argue that Texas could exempt DAPA beneficiaries, if they do so in a lawful manner. Color me skeptical. Even if this is true–doubtful–several of the party states in this suit are in the 9th Circuit, and are bound by that precedent, so this argument is somewhat unhelpful. In any event, this law existed well before DAPA and DACA, and there can be no argument that Texas colluded to generate standing. Second, I think it would be a radical argument that a state should be required to change its laws in order to avoid an injury from an executive action (that is arguably itself unlawful). Legislation and the police power are the ultimate attribute of sovereignty, and states should and could not be compelled to act in order to prevent a collision with a President’s policies.

Fifth, these cases are going to be very rare. The most common example where local governments will claim to be injured by inaction involve situations where the Executive did not give them the money they were due. In Train v. City of New York, the city sued the Nixon Administration for failing to disburse funds allocated by Congress. In Clinton v. City of New York, the Big Apple sued President Clinton for exercising his line-item veto and not funding local projects. But never before has a state (to my knowledge at least), filed suits alleging a violation of the President’s duty of faithful execution, where a state didn’t expect money. The fact that no state has ever attempted a suit on the scale of Texas’s is unprecedented in and of it self, but also a reflection of how unprecedented DAPA was (as recognized by the OLC memo).

Sixth, another aspect of our standing jurisprudence is that the injury must be “redressable.” This is an important limitation on suits alleging non-enforcement. With respect to the House of Representative’s suit against the Secretary of HHS for failing to enforce the employer mandate, one of the biggest obstacles is redressability. Let’s assume the court finds that the Take Care clause was violated, and the Secretary of HHS failed to discharge his constitutional duty. Then what? Do we have a court order, ordering the Secretary to implement the employer mandate? Would this take the form of mandamus? This hypothetical gives me serious doubts that standing would be appropriate in that case. But in the case of Texas, the scope of relief is really, really narrow. The court would not order the President to do anything! There would be no forced deportations. (Judge Hanen  made this point clear during the stay hearing–the government can engage in the prioritization of removal in the absence of DAPA). Rather, the November 24, 2014 memorandum would be enjoined, and the ex ante status quo would be restored. Then, no licenses would be issued. That’s it. Here, redressability is quite simple, and makes the case for standing stronger.

Seventh, from a policy perspective, suits over injuries to states from non-enforcement may reinforce the separation of powers, rather than frustrate them. Consider Heckler v. Cheney, the canonical non-enforcement case. Here the death row inmate claimed an injury from failing to enforce drug and safety laws for his lethal injection. Although the court found that the policy was non-reviewable under the APA, there was no suggestion that the prisoner lacked a concrete interest for purposes of Article III–he was to be executed with the drugs. In virtually every scenario where the government takes some action, even a related non-enforcement will cause a harmful injury to someone, and that party will have standing.

DAPA presents a different scenario. Rather than the non-enforcement of the law inflicting a harm on individuals–such as Cheney–DAPA provides a benefit. The millions of DAPA beneficiaries stand to gain quasi-lawful presence, work authorization, the earned income tax credit, social security, etc. Not a single individual who is affected positively by this non-enforcement would bring suit.  A similar dynamic applies to other instances of non-enforcement, such as the failure to enforce Obamacare’s individual and employer mandates. Businesses and individuals who are exempted from the payment of penalties will not bring suit. This is the dirty little secret of the Obama Non-Enforcement Doctrine–it’s okay to disregard the law when no one is injured, as the inaction is insulated from judicial review.

I’ve written in several places how this non-enforcement poses an existential threat to the rule of law. In the era of gridlock and non-enforcement, where Presidents can pick and choose what laws they like, and those non-enforcements do inflict injuries on injuries, these challenges can reaffirm the separation of powers, where Congress refuses to. In an article (at some point) I would like to write about the role of State Attorneys General, supporting the “special solicitude” of the states, in bolstering federalism. This Texas suit may be an important development in the doctrine.

These thoughts are still tentative, and I will develop them further. But any challenge here will have to be able to answer the “limiting principle” question.

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Apr 3, 2015

Audio: “The 1st Amendment, 2nd Amendment, and 3D-Printed Guns” at Creighton Law School

On March 19, the Creighton Law School Federalist Society Chapter hosted me for a discussion on 3D-Printed Guns and the Constitution. Here is the audio.

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