Jun 24, 2016

Posner v. Scalia – The Final Round “I regard the posthumous encomia for Scalia as absurd”

After Justice Scalia’s passing, I assumed that I would be able to at last retire the long-running series of battles between Scalia and Posner, which finished at Round XXVI back in September of 2014. Once again, Judge Posner managed to prove me wrong.

In his contribution at Slate’s Breakfast Table, Posner took this posthumous swipe at Nino, albeit this time criticizing as “absurd” those who praised him–including Harvard Dean Martha Minow and Justice Kagan:

On a different subject, I worry that law professors are too respectful of the Supreme Court, in part perhaps because they don’t want to spoil the chances of their students to obtain Supreme Court clerkships. I think the Supreme Court is at a nadir. The justices are far too uniform in background, and I don’t think there are any real stars among them; the last real star, Robert Jackson, died more than 60 years ago. I regard the posthumous encomia for Scalia as absurd. Especially those of Harvard Law School Dean Martha Minow and Justice Elena Kagan.

I’m speechless.

Adrian Vermeule, inspired by The History of England from the Accession of James the Second, stated it better than I ever could:

I titled this post “The Final Round,” but knowing Posner, this is far from over. And now, Scalia won’t be able to reply.

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Jun 23, 2016

Audio: Interview on “Houston Matters” on U.S. v. Texas

In case you didn’t hear me talk about U.S. v. Texas enough today, I also did an interview on Houston Matters, a show that focuses on local matters. Every June, this involves Texas cases at the Court. You can listen here.

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Jun 23, 2016

Audio: Interview on “To The Point” about U.S. v. Texas

Today I was a guest on “To the Point” with Marielena Hincapie and Greg Stohr, discussing U.S. v. Texas. You can listen here:

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Jun 23, 2016

Audio: Federalist Society Teleforum on U.S. v. Texas

Today I recorded a Federalist Society Teleforum on U.S. v. Texas. You can listen here:

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Jun 22, 2016

#SCOTUS Book Royalties – 2015

The Justices are fairly limited in their ability to earn outside money. Other than teaching a class, book royalties are one of the few lucrative extra-curricular activities for the Nine.

Justice Breyer’s 2011 book, Making our Democracy work, earned $60,000 in 2011 and $29,980 in 2013. In 2015, he earned  $7,214 for his new book, The Court and the World. This  he notched $122,000 from Random House in royalty income and “nonemployee compensation.”

Justice Sotomayor’s book, My Beloved World, earned her more than $3 million, including $1.9 million in advances.  In 2015, she did not earn any royalties on the book, nor did the publisher spend any money promoting it. As I speculated a few years ago, I doubt she earned back her advance, which is why no additional royalties have been paid out.

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Jun 22, 2016

The NY TImes on the Changed Relationship Between Students and Professors

Take a minute to read Frank Bruni’s take in NYT on the changed relationship between students and professors. In short, an increasingly large number of students view college (and I would add law school) as a way to cater to their needs, rather than providing them an education. The sense of responsibility is completely lacking. Students are not in a particularly good position to understand what getting that education entails–they haven’t done it before. Yet, they are disappointed when school does not conform with their expectations. I doubt much of this will be new for readers of this blog, but the article does a good job at crystalizing a complex dynamic. Here is the key part of the argument:

The rightful passing of that paradigm created a need for new ones, and Mr. Haidt said that the two in vogue now were “the therapeutic model and the consumer model.” In accordance with the first of those, students regard colleges as homes and places of healing. In accordance with the second, they regard colleges as providers of goods that are measurable and of services that should meet their specifications.

And that has imperfections all its own, the best laundry list of which appeared in “Customer Mentality,” an essay by Nate Kreuter, an assistant professor of English at Western Carolina University, that was published by Inside Higher Ed in 2014.

He noted a “hesitance to hold students accountable for their behavior,” be it criminal or a violation of what is too frequently a “laughable university honor code.” He noted an expectation among many students that their purchase of a college education should be automatically redeemable for a job, as if college were that precisely vocational and the process that predictable.

“That’s simply not how life works,” he said in a recent interview. “So we have a lot of students who are disenchanted.”

But what does the customer model do to their actual education?

“There’s a big difference between teaching students and serving customers,” said Mr. Schwartz at Swarthmore. “Teachers know things, and they should be telling students what’s worth knowing and what’s not, not catering to demands.”

Too often, he said, “we’ve given students a sense that they’re in just as good a position to know what’s worth knowing as we are, and we’ve contributed to the weakening of student resilience, because we’re so willing to meet their needs that they never have to suffer. That makes them incredibly vulnerable when things go wrong, as they invariably do.” He was speaking in the context of sharp upticks at many colleges in the number of students reporting anxiety and depression, and turning to campus mental health clinics for help.

“I see this as a collective abdication of intellectual and even moral responsibility,” he said.

The focus is on what they should expect, not what is expected of them. Students “have a responsibility in exchange for the subsidy that they get from either the public or nonprofit status of our schools,” said Ms. Hill, the Vassar president. “But the changed culture has suggested to students that they are owed or entitled to the education, and that sense of responsibility doesn’t seem to be there.”

I don’t mean to pick on millennials (for the time at least, I’m not much older than my students), but there is a distinct shift from previous generation of students. This changing demographic poses distinct challenges to faculty–in particularly untenured faculty. One way to ensure evaluations are strong is to make the class as easy as possible, and coddle the delicate snow flakes. They’ll love you–the education they receive may be substandard, but for a rationally self-interested untenured faculty member, it is not an irrational decision. Or, you can choose to make hard choices that make students fee unloved, in the hope they receive a better education, which will serve them in the profession. I’ve chosen the latter approach. I post all of my evaluations, and you can see how it is reflected in the comments. My sincere hope is that toughness will teach them a lesson–often when students do something particularly immature, I style it as a lesson they can internalize for the future. Will it actually work? Maybe for a few students, but who knows. It is a moral responsibility I take seriously, even if the kiddos don’t like it, and me.

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Jun 22, 2016

Property Exam Question: Star Wars Episodes I-III

For my second Property exam question, I traced the events of Star Wars Episodes I-III. (The second question followed Episode IV-VI,). Here is the A+ answer if you want to play along at home.


Even longer ago–thirty-two years earlier to be precise–in a galaxy far, far away, there was a series of contentious property disputes that gave rise to the conflicts in Part 1. This case involves Obi (yes, the same person from the previous Part), Padme, Binks, and Anakin. You are still a law clerk for Chief Justice Yoda of the Jedi Council. He has asked you to write another memorandum of no more than 1,000 words addressing five issues implicated in Part 2. The Jedi Council applies all common law property rules, as articulated in the Restatement (First) of Property. The Council does not adhere to the Rule Against Perpetuities, or any other principle that destroys future interests. There is no statute of limitations or other jurisdictional bar that prohibits the Jedi Council from hearing these disputes.

*Complete the questions in order: complete Part 1 first, and Part 2 second.*

Thirty-two years before the events in Question 1, turmoil has engulfed the Galactic Republic. A much-younger Obi journeys to rescue Padme who is in danger. Padme is the key to galactic peace. But before she can leave, Padme must take care of her property.

Five years earlier, she had entered into a lease for Redacre with Binks. The conveyance stated: “Starting on January 1, Redacre from Binks to Padme for a lease, with a payment of 1,000 credits due the first of each month, which Binks has the power to terminate at a date of his choice.” On May 30, Padme announces that pursuant to the lease, she was terminating the lease, effective immediately. Binks ignores her, and says “You can’t do that.” Instead, Binks executes a new conveyance: “Binks hereby consents to the subletting of Redacre to Obi, but on the condition that Padme remains responsible for any damage to Redacre.” Binks, Padme, and Obi then sign the conveyance.

Immediately after the lease is signed, Redacre is bombed from above, and the premises are destroyed. Obi and Padme narrowly escape, and run to their spaceship. As they take off, Binks yells “Pay me’sa for damages!”

Padme and Obi travel to the planet Tatooine, where they meet Anakin. Soon Padme and Anakin fall in love, and get married. Tatooine has a community-property system for marital property. The trio execute the following conveyance: “Whiteacre from Obi to Padme and Anakin as joint tenants.” The couple moves onto Whiteacre, and Padme soon becomes pregnant with fraternal twins–a boy and a girl.

Anakin has a dream that his wife will die during childbirth. He knows that the only way to save her will be through the powers of the force. The force is a mystical power that exists inside the cells of all people that allows them to do amazing things–including regenerate life. Anakin knows that the force is strong in Obi. While Obi is asleep, using a painless process, Anakin extracts the force from Obi’s body. Anakin then injects it into his own body.

The next morning, Obi awakens, and realizes Anakin stole his force. Obi goes to confront Anakin. Soon, the two engage in a lightsaber battle. As the two fight each other, Padme suddenly goes into labor and delivers two healthy twins. She names them Luke and Princess.

Moments after the twins are born, Obi strikes his lightsaber through Anakin’s heart. With his last breath, Anakin handed Obi his lightsaber, and said, “On my death, give this lightsaber to my son.” Without saying anything, Obi took the lightsaber, and leaves him for dead.

Anakin took his last breath, and his heart stopped beating. Then, the force took over, regenerating his body. He rose back to life as a new person: “My name is now Darth,” he said. Anakin was no longer. Now there was only Darth. Rather than saving his wife’s life with the force, he saved his own. At that moment, Padme–greatly weakened by the childbirth–dies.

Obi separates the infants, leaving Luke on the planet Tatooine with friends, and sends Princess to another planet. Luke and Princess would grow up not knowing who their parents were. They did not even know that they had a sibling (hence the awkward embrace three decades later). Obi would live on Tatooine, so he could keep an eye on Luke, waiting for him to be old enough to lead the resistance against Darth.

Furious, Darth sets out to seek revenge against Obi. Empowered by the force, Darth constructs the ultimate weapon, the Death Star, an armored space station the size of a moon. The Death Star has a laser powerful enough to destroy an entire planet. Darth then executes the following conveyance: “Death Star, from Darth to Darth for life, then to Luke, but if Luke does not have legal title to my light saber at my death, then to Princess and her heirs.” Darth hides the conveyance in a secret room on the Death Star, and does not tell anyone about it about it.

After the the issues in the Part I are resolved, Princess discovers Darth’s conveyance. This triggers a second round of litigation.

Chief Justice Yoda has asked you to write another memorandum, of no more than 1,000 words, addressing the following five issues that affect Binks, Obi, Luke, Princess, the executor of Padme’s estate, and the executor of Darth’s estate.

1. Binks files suit, seeking to recover the cost of damages to Redacare. (Binks is not seeking lost rent). First, Binks sues Obi. Obi defends that he is not liable, and files a countersuit against the executor of Padme’s estate. The executor claims that the estate is no longer liable. What is the strongest arguments that Obi can make, and strongest argument that Padme’s executor can make? How should the court resolve this dispute?

2. The executor of Darth’s estate files suit to quiet title on Whiteacre, claiming that the property belongs to Darth’s estate. The executor of Padme’s estate counterclaims, and asserts that Whiteacre belongs to Padme’s estate. Luke and Princess intervene, both claiming an interest in Whiteacre. How should the court resolve this dispute?

3. Obi files suit against Darth’s estate, seeking 10% of the profits generated by the Death Star (in addition to destroying planets, the Death Star had a successful manufacturing plant). Obi asserts that Darth was only able to construct the Death Star with the power of the force he stole from him. (Obi did not file suit for conversion of the force from his body). What is the estate of Darth’s strongest defense? How should the court resolve this dispute?

4. In light of the discovery of Darth’s conveyance concerning Death Star, Chief Justice Yoda has asked you to supplement your answer to the third question in Part 1.  Specifically, identify the present and future interests, if any, that existed at the time the conveyance was drafted for Darth, Luke, and Princess. In light of the newly-discovered conveyance, who now has the strongest claim to Death Star?

5. Chief Justice Yoda asks you to discuss the strengths and weaknesses of marital property laws based on a community-property model, rather than a common law model. Please pay special attention to the situation that confronts married couples that migrate from a state with one type of laws, to the other.

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Jun 21, 2016

Property Exam Question: Star Wars Episodes IV-VI

For my first Property exam question, I traced the events of Star Wars Episodes IV-VI. (The second question followed the prequels, Episodes I-III). Here is the A+ answer if you want to play along at home.


A long time ago in a galaxy far, far away, there was a decisive property battle between the forces of good and evil. This case involves Princess, Luke, Obi, and Darth. You are a law clerk for Chief Justice Yoda of the Jedi Council. He has asked you to write a memorandum of no more than 1,000 words addressing five issues implicated in Part 1. The Jedi Council applies all common law property rules, as articulated in the Restatement (First) of Property. The Council does not adhere to the Rule Against Perpetuities, or any other principle that destroys future interests. There is no statute of limitations or other jurisdictional bar that prohibits the Jedi Council from hearing these disputes.

It is a period of civil war. Darth has constructed the ultimate weapon, the Death Star, an armored space station the size of a moon. The Death Star, which has a laser powerful enough to destroy an entire planet, poses a risk to the peace and stability of the galaxy. Princess sneaks aboard the Death Star, and secretly takes a picture of the station’s blueprints, which were posted on a bulletin board. The blueprints reveal that there is a vulnerability on the station: if a missile is fired directly into an exhaust port, the entire Death Star will explode. Princess narrowly escapes from the Death Star, and gives the copy of the blueprints to her robot, known as R2. R2 was sent to the desert planet Tatooine to protect the blueprints.

After a crash landing, Luke finds R2 buried in the sands of Dryacre, and says “Finder’s keepers. He’s mine!” Luke works on a moisture farm on Blackacare. With R2’s sophisticated navigational system, Luke spends the next three weeks searching for water, and finally locates a stream of fresh water on Wetacre. Luke starts to build a pipeline to transport the water from Wetacre back to Blackacre. Obi, who owns the adjacent Dryacare, notices that Luke is building the pipeline. Obi diverts the stream, and directs all of the water to Dryacre. Luke demands that Obi remove the diversion of the water, claiming that he spent three weeks searching for it, and was already in the process of building the pipeline to transport the water. Obi refuses, and claims that he was the first to actually divert the water away from Wetacare. Obi added that Luke was only able to find the water with R2’s help, and R2 belonged to Obi.

However, soon Luke and Obi became friends. One day, Obi turns to Luke and hands him a lightsaber–a mystical sword with a laser for a blade. Luke asks if this is Obi’s lightsaber. Obi replies, “No, it belonged to your father.” Obi explains that Luke’s father was mortally wounded by Darth three decades ago. With his last breath, Luke’s father handed Obi the lightsaber, and said, “On my death, give this lightsaber to my son.” Without saying anything, Obi took the lightsaber, and leaves him for dead. But Luke’s father would survive.

Once Luke held the lightsaber in his hand, he sensed that Princess had been kidnapped by Darth, and was being held hostage on the Death Star. Luke travels to the Death Star, and tries to rescue Princess. However, Darth accuses Luke of trespassing, and blocks his entry to Princess’s room.

The two then engage in a dramatic lightsaber battle. Just as Darth is about to kill Luke, he pauses, and says, “Obi never told you what happened to your father.” Luke replied, “He told me you killed him.” Darth shot back, “No, I am your father.” Obi had lied to Luke. Astonished, Luke asks, “So this is your lightsaber?” Darth replies, “Yes. I want you to have it during my life, and after my life it should go to your sister.” Luke didn’t even know he had a sister.

At that moment, Princess emerges, and runs to Luke. The two share an awkward embrace, and then look at each other closely. They realize that they look exactly alike. Then it hits them: they are fraternal twins, and Darth was their father. The siblings miraculously escape the Death Star.

As they escape, Darth becomes furious and activates the Death Star’s laser. He seeks to destroy the planet of Tatooine. As the laser is powering up, Luke flies a spaceship alongside the Death Star, and fires a missile into the vulnerable exhaust port. It was a direct hit! The moon-sized space station explodes into hundreds of pieces. One of the pieces is so large that it enters the gravitational pull of Tatooine, and orbits the planet like a moon. Luke lands on the new celestial body, and plants a flag. “I claim this moon in the name of Luke.” He called it the Luke Star. Darth lands his spaceship, and tells Luke, “That’s no moon. That is the Death Star. And it’s still mine.” In a final dramatic battle, Luke kills his father with his lightsaber. Luke says, “Now it’s mine.”


With the star wars completed, the legal wars begin. Please write a memorandum of no more than 1,000 words for Chief Justice Yoda addressing the following five issues affecting Princess, Luke, Obi, and the executor of Darth’s estate:

1. Luke files suit against Obi, seeking an injunction to divert the water away from Dryacre and towards Blackacre. Obi files a countersuit, and claims that he has the stronger claim to the water. Please discuss the strongest arguments in favor of each claim.

2. The executor of Darth’s estate files suit against Princess, charging that her reproduction of the Death Star’s blueprints was a common-law misappropriation of property. (There are no statutory claims raised). Please discuss the merits of this claim, and Princess’s strongest defenses.

3. Luke files suit to quiet title of Luke Star, claiming that he had the strongest claim to the new moon. The executor filed a countersuit, claiming that there is no new moon, and Darth’s estate retained the strongest claim to what is still Death Star. Please address the strongest arguments in favor of each claim.

4. Luke files suit to quiet title on the lightsaber, claiming that he has the strongest claim to the weapon. Princess intervenes, and asserts that after Darth’s death, she now has the strongest claim to the weapon. Obi intervenes, and asserts that he has the strongest claim because Darth had already relinquished his possession of the lightsaber three decades earlier. How should the court resolve these three competing claims?

5. The executor of Darth’s estate brings a trespass claim against Luke for trespassing onto the Death Star. Luke counters that he entered Death Star in order to rescue the Princess, who was being held hostage. Please address how the Court should resolve this claim, and pay special attention to the policy arguments for and against the “right to exclude.”

To Be Continued in Part II…

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Jun 20, 2016

Breyer does not defer to parochial U.S. Government because DOJ did not consult with foreign nations

This may be the most Breyer concurring opinion I’ve ever read, from RJR Nabisco, Inc. v. European Community:

Unlike the Court, I cannot accept as controlling the Government’s argument as amicus curiae that “[a]llowing recovery for foreign injuries in a civil RICO action . . . presents the . . . danger of international friction.” Ante, at 21. The Government does not provide examples, nor apparently has it consulted with foreign governments on the matter. See Tr. of Oral Arg. 26 (“[T]o my knowledge, [the Government] didn’t have those consultations” with foreign states concerning this case). By way of contrast, the European Community and 26 of its member states tell us “that the complaint in this case, which alleges that American corporations engaged in a pattern of racketeer- ing activity that caused injury to respondents’ businesses and property, comports with limitations on prescriptive jurisdiction under international law and respects the dignity of foreign sovereigns.” Brief for Respondents 52– 53; see also Tr. of Oral Arg. 31 (calling the European Union’s “vett[ing] exercise” concerning this case “compre- hensiv[e]”). In these circumstances, and for the reasons given by JUSTICE GINSBURG, see ante, at 7–8, I would not place controlling weight on the Government’s contrary view.

Do you see what’s going on? Because the Solicitor General could not represent the United States actually checked with foreign nations about the issue of extraterritoriality, and those foreign nations told the Court that the SG was wrong about their views, Breyer would not defer to the United States on a question of foreign relations! It’s come to this: the Supreme Court is second-guessing the State Department’s foreign policy interests because foreign nations tell the Supreme Court otherwise. Where’s Justice Scalia when you need him.

Three other bits about RJR Nabisco.

First, Justice Sotomayor was recused because she previously ruled on this case on the Second Circuit. The Court split 4-3 on the second question of whether a domestic-injury requirement should be read into RICO’s extraterritoriality reach. Presumably, if Sotomayor voted the same way she did as a Circuit Judge, the Court would have split 4-4 on this question. Now we get to determine whether a 4-3 decision is precedential. I do not know the answer to this question, but if other questions present the same issue are in the pipeline, where there are no recusals, this case may quickly go the other way.

Second, Justice Alito referenced then-Judge Sotomayor’s decision:

4 At an earlier stage of respondents’ litigation against RJR, the Sec­ ond Circuit “held that the revenue rule barred the foreign sovereigns’ civil claims for recovery of lost tax revenue and law enforcement costs.” European Community v. RJR Nabisco, Inc., 424 F. 3d 175, 178 (2005) (Sotomayor, J.), cert. denied, 546 U. S. 1092 (2006). It is unclear why respondents subsequently included these alleged injuries in their present complaint; they do not ask us to disturb or distinguish the Second Circuit’s holding that such injuries are not cognizable. We express no opinion on the matter. Cf. Pasquantino v. United States, 544 U. S. 349, 355, n. 1 (2005).

Third, Justice Ginsburg’s dissent referred to her colleague’s “sound judgment.”

I would resist reading into §1964(c) a domestic-injury requirement Congress did not prescribe. Instead, I would affirm the Second Circuit’s sound judgment:

“To establish a compensable injury under §1964(c), a private plaintiff must show that (1) the defendant ‘en- gage[d] in a pattern of racketeering activity in a man- ner forbidden by’ §1962, and (2) that these ‘racketeer- ing activities’ were the proximate cause of some injury to the plaintiff ’s business or property.” 764 F. 3d, at 151 (quoting Sedima, 473 U. S., at 495; Holmes, 503 U. S., at 268)).

Because the Court overturns that judgment, I dissent.

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Jun 20, 2016

#SCOTUS Analytics: How many people clicked on Justice Kagan’s goo.gl Link?

This morning I praised Justice Kagan for using the goo.gl URL shortener in her opinion. Though these links are much more aesthetically pleasing, I was reminded by Mike Lissner that Google makes the analytics for its links publicly available. Let’s walk through this. The link was copied from the Respondent’s merits brief (p.2), so Justice Kagan didn’t create it. The link was created on November 30, 2015–two months after cert was granted, and four days before the petitioner filed its opening brief. This gives us a hint when the eager-beavers at Stuart Banner’s UCLA Law Clinic started working on the brief.

Google also indicates when, and how many times the link was clicked on. It was clicked twice on 12/1/15, shortly after it was created. The brief was filed on 1/22/16. The link was clicked twice on 1/31/16–perhaps by a curious clerk? The case was argued on 2/22/16. The link was clicked twice, again on 3/1/16. It was clicked once on 5/1/16. There was one click on 5/27/16. Perhaps when the dissent was circulated? On June 14 and 15, it was clicked once. Perhaps by the cite checkers in the printing office? And once it was published, it had over 40 clicks. Although 22% of those referrals came from my blog. 75% came from unknown, so presumably, those were clicks straight from the PDF itself.

If you’d like to learn more about the browser preference of #SCOTUS followers, 26 clicked with Chrome, 15 with Firefox, 3 with Safari, and one lonely Internet Explorer/Edge users. Windows users far outnumber Mac users: 24-15. And to make Justice Breyer happy, internationalists are interested–we had one click each from China, Germany, and Canada.

I suspect this will be the last time the Court uses a link shortener.




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Jun 20, 2016

Audio: “Is the Split Supreme Court Shifting into Neutral?”

On June 20, I was a guest on Public Radio International’s To The Point with Warren Olney. I discussed the Supreme Court’s remaining cases with Bob Barnes, Erwin Chemerinsky, and Susan Hays. You can listen to the exchange here:

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Jun 20, 2016

#SCOTUS Speculation: Possible Assignments for the Remaining 8 Cases

After today’s hand-down, there are eight outstanding decisions. The Court has scheduled a special sitting on Thursday, so the final day of the term will likely be on Monday. (They may add a special sitting on Friday, but that seems unnecessary with only seven cases left over).

Let’s play our favorite end-of-the-term game, guess the assignments! (Please note that I’ve tried this in the past, and do not have a particularly good track record, so read at your own peril). What complicates this further is the fact that opinions may have been assigned to Scalia, and then reassigned.

During the December sitting, ten cases were argued. So far, Kennedy has 1 , Thomas has 1, Ginsburg has 1, Alito has 1, Sotomayor has 1, Kagan has 1, and Breyer has 2. Roberts and Scalia have 0. Outstanding from the December sitting are Fisher v. University of Texas and Dollar General v. Choctaw. It is possible that one of Breyer’s decisions was originally assigned to Scalia, and it was reassigned to him afterwards. Breyer wrote Franchise Tax Box Board, a 6-2 decision released on 4/19, and Harris v. AZ, an 8-0 decision released on 4/20. If Scalia was originally in the majority in Franchise Tax Board, then he would have assigned the opinion, because the Chief was in dissent. Harris seems like an unlikely assignment for Scalia, as it is a unanimous voting rights decision–give it to the jurist who loves making Democracy work. So may guess is that Scalia was assigned Dollar General, which raises meaty issues of tribal court jurisdiction–something Nino can really sink his teeth into. If in fact Scalia was assigned Dollar General, that would mean the Chief Justice originally assigned himself Fisher–not Justice Kennedy. Perhaps there were finally five votes to reverse the Fifth Circuit–with an AMK concurring opinion like in Parents Involved? But, down to seven Justices, whatever the Chief may have had in mind for Fisher is probably not what will happen. So if I had to guess, the Chief will write in both Fisher and Dollar General.

(Update on December. A commenter reminded me that Franchise Tax Board divided 4-4 on the first question of whether Nevada v. Hall ought to be overruled. Then Justice Breyer’s opinion moved onto the second question, finding that Nevada’s taxation is unconstitutional. Roberts and Thomas were in dissent. So it is possible that Scalia assigned himself that opinion, and was the fifth vote. If there were five votes, there would be no need to reach the second question. But with Justice Scalia’s passing, Kennedy would have assigned Breyer had to write Part II of the opinion. In any event, I don’t think this affects my prediction that the Cheif will write Fisher. If Scalia originally had Franchise Tax Board, Dollar General may be assigned to someone else).

During the January sitting, nine cases were argued, seven were decided on the merits, Freidrichs v. California Teachers Association was affirmed on a four-to-four margin, and Duncan v. Owens was DIG’d eight days after it was argued. There are no outstanding cases. I can say with great certainty that Alito was slated to write Freidrichs, in light of his prior decisions in Knox v. SEIU and Harris v. Quinn. It was possible that Scalia was not assigned an opinion for this sitting–it happens with a DIG. In any event, nothing left to predict. But we can guess what could have been.

During the February sitting, 10 cases were argued. Only Voisine and Whole Women’s Health are outstanding. Both cases were argued after Justice Scalia’s passing, so predicting the authorship is even more complicated. So far from that sitting, Thomas and Alito have 2, and with one opinion are Roberts, Kennedy, Ginsburg, and Sotomayor. Breyer and Kagan have zero. Williams v. Pennsylvania (the 5-3 judicial bias case) and Whole Women’s Health were argued on the same week. Justice Kennedy was the most senior Justice in both cases. He kept Williams for himself. Could it be that Justice Kennedy assigned Whole Women’s Health to Kagan? And over Ginsburg, who was assigned Hughs v. Talen the week before? In that case, Breyer is stuck with Voisine, yet another 922(g) case.  My predictions: Kagan for Whole Women’s Health and Breyer for Voisine. 

All of the cases from the March sitting have been decided, so there is nothing left to predict. Notably, Ginsburg and Kennedy both had two opinions, and the rest had one.

This brings us to the April sitting, the final sitting of the term. There were ten cases argued, and there are four cases outstanding: US v. Texas, Birchfield v. ND, Mathis v. US, and McDonnell v. US. One opinion has been assigned to Thomas, Kennedy, Kagan, Breyer, Sotomayor, and Ginsburg. Kennedy wrote the majority opinion today in Encino v. Navarro. If this is is only June assignment, what a letdown from last year! With zero assignments are Roberts, Breyer, and Alito. I predict that Justice Breyer was assigned the opinion in McDonnell because he was very agitated during oral arguments against the federal prosecution, because it would make it harder for democracy to work. Flip a coin, and assign Birchfield or Mathis to Alito, and one other burdened Justice. I won’t lose any sleep over those.

And everyone knew how this Term would end. The Chief will announce the outcome in U.S. v. Texas. Either he writes a majority opinion ruling against Texas, or he announces the case is rescheduled for argument next term, or it is affirmed 4-4. I think the last option is the most unlikely. If the Court was going to affirm 4-4, they would have done so much earlier, as we saw with Friedrichs. A 4-4 doesn’t sit around till the last day of the term. However, the second option, restoring to the calendar, does wait around till the last day of the term. The Court did this with Citizens in June 29, 2009, the last day of the term. So if the Court does not decide the case on Thursday, there is a slightly greater chance the Court reargues it.

But we all know how this ends. Every June, the Chief finds a different way to break my heart. (Zubik doesn’t count for this year, because it broke my heart in May).

Whenever I write these posts, #LawTwitter quickly tells me why I’m wrong. I’m sure they’re right. This is all pure speculation, made even harder by the Senior Associate Justice missing more than half the term.

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Jun 20, 2016

Death of a “Salesman” Exemption: No Chevron Deference for Obama Administration Regulation That Changed Thirty-Year Old Practice, Ignored Proposed Rulemaking, With No “Reasoned Explanation”

The Fair Labor Standards Act generally requires employers to pay workers who labor more than forty hours a week overtime (1.5x the “regular rate”). However, the law has a number of exemptions, including for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” In 1970, the Labor Department interpreted “salesman” to mean “any salesman, parts-man, or mechanic primarily engaged in selling or servicing automobiles” at a covered dealership.” “Service Advisors” were not exempt, under this interpretation. Several courts rejected the interpretation that “service advisors” were not covered by the “salesman” exemption, because they are involved in sales. In 1978, the Department, through an opinion letter, stated that service advisors could be exempt. In 1987, the Department in its Field Operations Handbook confirmed that the service advisors would be exempt, and would not be eligible for overtime.  In 2008, the Department of Labor issued a notice of proposed rulemaking, which acknowledged that every court, and the Department itself, treated service advisors as exempt since 1987. The proposal would conform the regulation with practice and prevailing judicial interpretations.

But then we had hope and change. Justice Kennedy’s majority opinion in Encino Motorcars, LLC v. Navarro explains what happened next:

In 2011, however, the Department changed course yet again. It announced that it was “not proceeding with the proposed rule.” 76 Fed. Reg. 18833. Instead, the Depart­ ment completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells automo­ biles, trucks, or farm implements. Id., at 18859 (codified at 29 CFR §779.372(c)(1)).

That is, the interpretation that was rejected by courts for four decades, and which the Labor Department had rejected in practice for three decades. Why did they do it?

The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under §213(b)(10)(A). It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors “are not exempt” under the relevant provision. 29 CFR §779.372(c)(4) (1971). In promulgating the 2011 regula­ tion, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been “an inadvertent mistake in drafting.” Tr. of Oral Arg. 50.

Drafting error? Like “established by the state”? This is not the first time the Court has criticized the Obama administration for arbitrarily changing its positions. Based on political reasons. That last part wasn’t from the Court. It was from me. See earlier rebukes in Marvin M. Brandt Revocable Trust v. United States, Kiobel v. Royal Dutch Petroleum, Levin v. United States, US Airways v. McCutchen, and Myriad Genetics.

The Court unanimously held that this final regulation, which disregarded the proposed rulemaking, and offered no explanation, did not receive Chevron deference.

When Congress authorizes an agency to proceed through notice-and­ comment rulemaking, that “relatively formal administra­ tive procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev- ron should apply. Mead Corp., supra, at 229–230. But Chevron deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U. S., at 227; cf. Long Island Care at Home, Ltd. v. Coke, 551 U. S. 158, 174–176 (2007) (reject­ ing challenge to procedures by which regulation was is­ sued and affording Chevron deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting Co. v. FCC, 22 F. 3d 320, 324–326 (CADC 1994); cf. also Auer v. Robbins, 519 U. S. 452, 458– 459 (1997) (party cannot challenge agency’s failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chev- ron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has chal­ lenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper.

The agencies are allow to change their positions, but they must provide a “reasoned explanation” for doing so.

Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981–982 (2005); Chevron, 467 U. S., at 863–864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” FCC v. Fox Televi- sion Stations, Inc., 556 U. S. 502, 515 (2009). But the agency must at least “display awareness that it is chang­ ing position” and “show that there are good reasons for the new policy.” Ibid. (emphasis deleted). In explaining its changed position, an agency must also be cognizant that longstanding policies may have “engendered serious reli­ ance interests that must be taken into account.” Ibid.; see also Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). “In such cases it is not that further justi­ fication is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Fox Television Stations, supra, at 515–516. It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Brand X, supra, at 981. An arbitrary and ca­ pricious regulation of this sort is itself unlawful and re­ ceives no Chevron deference. See Mead Corp., supra, at 227.

Based on this framework, the Obama Labor Department’s 2011 regulation was not entitled to Chevron deference.

Applying those principles here, the unavoidable conclu­ sion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reli­ ance interests involved. In promulgating the 2011 regula­ tion, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to overrule its previous position.

Whatever potential reasons the Department might have given, the agency in fact gave almost no rea­ sons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. See Fox Television Stations, 556 U. S., at 515–516. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law. See 5 U. S. C. §706(2)(A); State Farm, supra, at 42–43. It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.

I haven’t read this carefully, but this opinion may have a bearing on the Net Neutrality litigation, where the FCC radically altered several decades of its position on common carriage.

Ultimately, the Court remands the issue back to the 9th Circuit, with instructions to decide it without applying Chevron.

RBG, joined by Sotomayor, concurred to write that even on remand, the regulation is not arbitrary and capricious. She also stresses that nothing in the opinion alters settled law.

I write separately to stress that nothing in today’s opin­ ion disturbs well-established law. In particular, where an agency has departed from a prior position, there is no “heightened standard” of arbitrary-and-capricious review. Id., at 514. See also ante, at 9. An agency must “display awareness that it is changing position” and “show that there are good reasons for the new policy.” Fox, 556 U. S., at 515 (emphasis deleted). “But it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.” Ibid.

Justice Thomas–who believes all administrative law is unlawful–concurred, joined by Justice Alito. The dynamic duo (who write together very often on the Scalia-less Court), explain that there is no reason to remand the case: the Court should resolve the issue properly before it.

I agree with the majority’s conclusion that we owe no Chevron deference to the Department’s position because “deference is not warranted where [a] regulation is ‘proce- durally defective.’ ” Ante, at 8. But I disagree with its ultimate decision to punt on the issue before it. We have an “obligation . . . to decide the merits of the question presented.” CBOCS West, Inc. v. Humphries, 553 U. S. 442, 472 (2008) (THOMAS, J., dissenting). We need not wade into the murky waters of Chevron deference to de- cide whether the Ninth Circuit’s reading of the statute was correct. We must instead examine the statutory text. That text reveals that service advisors are salesmen pri- marily engaged in the selling of services for automobiles. Accordingly, I would reverse the Ninth Circuit’s judgment.

CT’s opinion offers a grammatical discourse on the difference between a “salesman” and a “service advisor,” with citations to two dictionaries, and  a discussion of gerunds.

I start with the uncontroversial notion that a service advisor is a “salesman.” The FLSA does not define the term “salesman,” so “we give the term its ordinary mean- ing.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 5). A “salesman” is someone who sells goods or services. 14 Oxford English Dictionary 391 (2d ed. 1989) (“[a] man whose business it is to sell goods or conduct sales”); Random House Dictionary of the English Language 1262 (1966) (Random House) (“a man who sells goods, services, etc.”). Service advisors, whose role it is to “interact with customers and sell them services for their vehicles,” ante, at 2, are plainly “salesm[e]n.” See ibid. (cataloguing sales-related duties of service advisors).

A service advisor, however, is not “primarily engaged in selling . . . automobiles.” §213(b)(10)(A). On the contrary, a service advisor is a “salesman” who sells servicing solu- tions. Ante, at 2. So the exemption applies only if it cov- ers not only those salesmen primarily engaged in selling automobiles but also those salesmen primarily engaged in servicing automobiles.

The exemption’s structure confirms that salesmen could do both. The exemption contains three nouns (“salesman, partsman, or mechanic”) and two gerunds (“selling or servicing”). The three nouns are connected by the disjunc- tive “or,” as are the gerunds. So unless context dictates otherwise, a salesman can either be engaged in selling or servicing automobiles. Cf. Reiter v. Sonotone Corp., 442 U. S. 330, 339 (1979).

And for good measure, there is a citation to Justice Scalia:

There is no basis to infer that Congress means anything beyond what a statute plainly says simply because the legislation in question could be classified as “remedial.” See Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 581–586 (1990).

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Jun 20, 2016

Justice Kagan First Justice to Use Link Shortener (goo.gl)

Update: I wrote an additional post diving into the analytics of how many people clicked on the link here.

In Justice Kagan’s dissent in Utah v. Strieff, she used the goo.gl link shortener.

See Reply Brief 8; Associated Press, Pa. Database, NBC News (Apr. 8, 2007), online at http://goo.gl/3Yq3Nd (as last visited June 17, 2016).

A Link Shortener creates a short-form of an otherwise lengthy link. The actual NBC News article is found at http://www.nbcnews.com/id/18013262/ns/us_news-crime_and_courts/t/pa-database-million-warrants-unserved/#.V2gtfOakX76.

By my quick search, she is the first Justice to use a link shortener (I checked goo.gl, bit.ly,

For those of you who don’t appreciate the elegance of a link shortener, consider Justice Sotomayor’s dissent, which lists the full, cumbersome links–including the unsightly %20 to represent a space:

Outstanding warrants are surprisingly common. When a person with a traffic ticket misses a fine payment or court appearance, a court will issue a warrant. See, e.g., Brennan Center for Justice, Criminal Justice Debt 23 (2010), online at https://www.brennancenter.org/sites/default/files/legacy/Fees%20and%20Fines%20FINAL.pdf.

Here Justice Sotomayor, I fixed it for you: https://goo.gl/0GAmmi.

I’ve been using goo.gl as a link shortener in briefs for some time. It saves space, looks nicer, and has the added benefit of recording how many clicks the link receives. If people start clicking on links in my brief, it is a potential sign that the Justices, or at least their clerks are interested.

For my book, I am saving all of my links in perma.cc, which creates permanent archives of links. Even if the original page is deleted, the archive remains. (I have roughly 3,000 footnotes, so there are a lot of saved links).

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Jun 20, 2016

Justice Thomas Reversed His Former Law Clerk Justice Thomas Lee of the Utah Supreme Court

In Utah v. Strieff, Justice Thomas wrote the majority opinion reversing the Utah Supreme Court. The majority decision for the unanimous Utah Supreme Court was written by Thomas’s former clerk Justice Thomas Rex Lee. Justice Lee was also on Donald Trump’s short list. Justice Thomas made clear that the lower court did not get the precedents correct:

Turning to the application of the attenuation doctrine to this case, we first address a threshold question: whether this doctrine applies at all to a case like this, where the intervening circumstance that the State relies on is the discovery of a valid, pre-existing, and untainted arrest warrant. The Utah Supreme Court declined to apply the attenuation doctrine because it read our precedents as applying the doctrine only “to circumstances involving an independent act of a defendant’s ‘free will’ in confessing to a crime or consenting to a search.” 357 P. 3d, at 544. In this Court, Strieff has not defended this argument, and we disagree with it, as well. The attenuation doctrine evalu- ates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. And the logic of our prior attenuation cases is not limited to independent acts by the defendant.

Although this should have absolutely no bearing on his qualifications, it unfortunately will be used to hurt and help him. Conservatives will say, “He agreed with Sotomayor.” Liberals will say “He agreed with Sotomayor.”

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Jun 17, 2016

Verrilli on Obama as a Client: “He still got that law professor in him”

Former Solicitor General Donald Verrilli sat down for an interview with MSNBC, and talked about a wide range of topics. I really enjoyed his description of serving President Obama, who was his client:

The President “is a phenomenal client. He is a brilliant lawyer. I haven’t had many opportunities to sit down and talk with him about cases in front of the Court. His approach, its DOJ’s job, its the SG’s office job, it’s my job, to do these cases in the way we think best and he lets us do that. He gives us huge, wide berth, and I very much appreciate that. On the small number of occasions where I have sat down and talked with him, he has a remarkable legal mind. He is not a law professor any more, by any means, but he still got that law professor in him. When you sit down and talk and legal problem with him, he has a phenomenal legal mind. He’s great all around. He gives us the leeway to do what we need to do, and we do engage, it’s terrific.

Also–with several quotes going directly into my book–Verrilli said that NFIB and King were the most important arguments of his tenure.

“Those were cases, from the perspective of the administration, one of its most important policy, where virtually everything was on the line.”

Verrilli was asked if the legal debate over Obamacare was over.

You had the Chief Justice for 6 Justices in King v. Burwell, as a matter of statute, it really needs to provide subsidies in every state to work as intended. I think the debate is effectively over.

Watch the full interview.

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Jun 17, 2016

Senator Collins’s Proposed “No-Buy” List Is Even Worse Than Toomey’s

The New York Times reports that Senator Susan Collins, a moderate Maine Republican, has proposed a different version of the no-buy list. It is even worse that the Toomey-Winkler version, that has apparently already been rejected by the Senate. Details are light, but here is how the Times describes it:

The legislation being drafted by Ms. Collins would bar the sale of guns to terrorism suspects who appear on either the government’s no-fly list or the so-called “selectee” list, in which individuals are subjected to additional security screening before being allowed to board an airplane.

I don’t see how this is any improvement. The government can indiscriminately add people to the “no-fly” list based only on a reasonable suspicion that the person poses a threat to aviation security. And Collins extols the proposal because it doesn’t even impose a stringent probable cause requirement (which is still too lax)!?

But while the gun restrictions proposed by Ms. Collins would target a narrower group of individuals, her measure does not require federal prosecutors to demonstrate “probable cause” of criminal terrorist activity required in an alternative to the Feinstein measure sponsored by Senator John Cornyn of Texas, the No. 2 Republican.

Democrats say Mr. Cornyn’s measure, which will also be voted on Monday, sets such a high burden of proof that it renders useless the underlying gun restrictions.

Collins actually said that “probable cause” is too high of a standard!

Instead, Ms. Collins has proposed an appeals process that would award attorney’s fees to anyone who successfully challenged the government’s effort to prevent the sale of a firearm.

“If you are either on the no-fly list or the selectee list, which is the list where you are subjected to additional screening before you are allowed to board a plane, then you would be prohibited from purchasing a gun,” Ms. Collins said.

She said she agreed that Mr. Cornyn’s measure set a standard too difficult to meet. “If probable cause is found then probably law enforcement could arrest you,” she said. “If you have got that, you are going to be arrested, unless they are leaving you out there in order to catch others.”

That’s the point! If there is evidence to charge you, then you should be charged. Constitutional rights cannot be willy-nilly held in limbo because the Attorney General has a hunch, which is all that reasonable suspicion requires.

It gets worse, if you have been on a watch list for five years, then your gun purchases will be flagged.

Ms. Collins and Ms. Feinstein have each added language to their proposals aimed at addressing the situation in Orlando, in which the killer, Omar Mateen, had been on a government watch-list but was removed before he bought his guns. Though they focus on different lists, their proposals would flag for the F.B.I. gun purchases by anyone who had been on the designated watch list within the last five years.

Now the government has every reason in the world to indefinitely keep U.S. Citizens (predominantly Muslim men) on these lists to hit the 5-year threshold. What kind of perverse incentive is this? The lists will continue to swell in size.

I still feel like I am living in a bizarro world: Democrats seek to eliminate the presumption of innocence by retracting the procedural protections of civil rights, blinded by their pursuit of the gun control agenda. Maybe Chuck Schumer will grow a beard like Mr. Spock, because we are now living in a parallel universe.

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Jun 17, 2016

ConLaw Exam Question: What if #SCOTUS Tied 4-4 on Ted Cruz’s Eligibility for the Presidency?

My second question on my Spring 2016 constitutional law exam imagined a Bush-v-gore-stlye constitutional crisis surrounding a deadlocked vote on Ted Cruz’s eligibility for the Presidency. But there are some interesting twists with Congress’s efforts to provide a legislative solution. I wrote this before the Indiana primary (wishful thinking, huh?) so suspend your disbelief.

Instructions: You are a law clerk for Chief Justice John Roberts. He has asked you to prepare a memorandum addressing five issues about a case arising from the 2016 Presidential election. Four of these questions will be based on issues from before the case is argued, and the fifth question arises after the case is argued. Please be sure to answer all five questions with no more than 1,000 words. Suspend your disbelief.

Today is November 9, 2016. Yesterday, in the presidential election, Republican Ted Cruz defeated Democrat Hillary Clinton, by an anticipated electoral-college majority of 287 to 251. (A candidate needs 270 electoral votes to win the election). However, there is a constitutional crisis. Katherine, the Secretary of State of Pennsylvania, refuses to certify any votes cast for Cruz. She asserts that Cruz is ineligible to become President because he is not a natural born citizen. Ted Cruz was born in a Canadian hospital to a U.S. Citizen mother.


Katherine cites Article II, Section 1, Clause 5, which provides:


No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.


Katherine, a Democrat, announced that she would only certify the votes for Clinton. As a result, Clinton would receive all of Pennsylvania’s twenty electoral votes. This decision would flip the outcome of the election, with Clinton receiving 271 votes, and only 267 for Cruz. Clinton would then become the 45th President.


Cruz immediately protests, claiming that he is eligible to be President, and his votes should be certified. Cruz argues that a person born abroad to a U.S. citizen parent is a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Panama Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose. And the people of Pennsylvania so chose.


With the transition of power in flux, the House and Senate quickly vote on, and pass the Natural Born Citizen Act of 2016 (NBCA). The act has five sections:


Section 1: For purposes of Article II, Section 1, Clause 5, a person who is born to a U.S. Citizen is a “natural born citizen,” regardless of where the person is born.

Section 2: This Act shall apply to all presidential candidates who received votes prior to November 9, 2016.

Section 3: The interpretation of the Constitution offered in Section 1 shall be binding on all federal courts.

Section 4: All executive officers of the several states shall be bound by this Act.

Section 5: All constitutional challenges to this Act shall be heard before a three-judge panel in the U.S. District Court of the District of Columbia. The judgment from this court shall be reviewable by appeal directly to the Supreme Court of the United States.


President Obama, who has had his own experiences with the Natural Born Citizen clause, vetoes the bill. Publicly he states that he has doubts about the law’s constitutionality, because Congress cannot impose its interpretation of the Constitution on the other branches. Privately, however, he admits that he wants his former Secretary of State to become President over Cruz. To the surprise of many, in a rare act of bipartisanship, the Senate and House override the President’s veto. (Suspend your disbelief). The NBCA becomes law.


Katherine announces that Section 4 of the NBCA is unconstitutional, and states that she will not certify Cruz’s votes. Pursuant to Section 5 of the NBCA, Cruz files suit against Katherine before a three-judge panel of the U.S. District Court for the District of Columbia. Cruz is seeking a declaratory judgment of whether NBCA is constitutional. Clinton, who has a concrete injury in the outcome of the case—the presidency—intervenes, and argues that the act is unconstitutional in its entirety.


The three-judge panel hears arguments on November 19—exactly one month before the electoral college must vote on December 19. The oral arguments are fiercely divided, and the next day the three judges jointly issue a stunning, one-sentence order: “With this court unable to reach a timely resolution of the claims, pursuant to 28 U.S.C. § 1254, we certify this case to the Supreme Court of the United States for a final resolution.” Through this arcane procedural move, a decision in the lower court is bypassed, and the case is sent directly to the Supreme Court.


On November 24, the Supreme Court agreed to hear the certified case, limited to the questions of whether sections 1, 2, 3, and 4 of the NBCA are constitutional. Following a brutal briefing schedule, oral arguments are scheduled for December 1.

Before oral arguments, the Chief Justice asks you to prepare a memorandum that answers the following four questions:


  1. Under what authority can Congress enact Section 1 of the NBCA?
  2. Is Section 2 of the NBCA constitutional?
  3. Is Section 3 of the NBCA constitutional?
  4. Is Section 4 of the NBCA constitutional?


After arguments, the Justices hold their private conference the morning of December 2. The meeting usually takes an hour. However, that day the Chief Justice returns to chambers twelve hours later. He tells you, “The Court has divided evenly, 4 Justices to 4 Justices. With Justice Scalia’s absence, there is no way to cobble together a majority opinion.” You ask, “Can’t you reach a compromise?” The frustrated Chief Justice replies, “We tried for twelve hours. No one is willing to budge.” (Suspend your disbelief).


Under the Court’s normal practice, when the Justices deadlock on a 4-4 tie, the judgment of the lower court is affirmed. However, due to the fact that the three-judge panel did not render a decision—they certified the case to the Supreme Court—there is no judgment to affirm. A tied vote before the Supreme Court would leave unresolved the constitutional crisis.


The electoral college is scheduled to meet in two weeks, and Katherine still refuses to certify the votes for Cruz.


The Chief Justice asks you to answer a final question. In answering this final answer, put aside your personal preference of which candidate you support. Remember, your answer for all five parts must total no more than 1,000 words. Think carefully about your answer.


  1. What happens next?


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Jun 16, 2016

Debate on “No Buy” List with Adam Winkler on Los Angeles Public Radio

On Airtalk, a program on Los Angeles Public Radio, Adam Winkler and I debated the constitutionality of the proposed “No Buy” list. You can read Adam’s Op-Ed here, and my response in National Review here.

Listen to the 11-minute exchange here.

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Jun 16, 2016

New in National Review: A ‘No Buy’ List for Suspected Terrorists Would Be Constitutionally Reckless

National Review has published my essay about the dangers of the proposed “no buy” list for suspected terrorists. (It is based on a post I wrote earlier this week). Here is the introduction:

‘What could possibly be the argument,” President Obama asked in his December 2015 address from the Oval Office, “for allowing a terrorist suspect to buy a semiautomatic weapon?” Hillary Clinton agreed. “If you’re too dangerous to get on a plane, you’re too dangerous to buy a gun in America,” she tweeted. In the wake of the recent terrorist attack in Orlando, politicians on both sides of the aisle have proposed expanding the “no fly” list to a “no buy” list for guns. (Senators Mark Kirk and Pat Toomey, and Representative Pete King are among the Republican supporters of the idea.) At first glance, this plan seems like a pragmatic, and even unimpeachable method to protect the homeland. As usual, the devil is in the details.

The “no buy” list would allow the government to silently infringe on the constitutional rights of U.S. citizens based on clandestine proceedings before a secret court. This civil-liberties nightmare is constitutionally reckless. Such Kafkaesque proceedings were once the bête noire of the Left. No longer, since gun-controllers see national-security conservatives as potential collaborators—a classic “Bootlegger and Baptist” coalition. Those on the right who preach fidelity to the Constitution should resist the Siren’s call and refuse to strengthen this dystopian regime.

Regardless of how it is crafted, this proposal suffers from three fatal flaws.

First, there is serious reason to question the validity of these behind-closed-door proceedings. A strongly worded 2011 decision by Judge John D. Bates charged that the National Security Agency had repeatedly mislead the FISC on its oversight of domestic surveillance and had violated the Constitution for years. If Edward Snowden’s revelations have taught us anything, it’s that secret proceedings can and will be abused, especially if motivated by the administration’s political agenda. Jeh Johnson, Secretary of Homeland Security Security, has recently taken the position that “meaningful gun control has to be a part of homeland security.” This changed tact is part of President Obama’s long game on gun control—because passing new laws is impossible, the administration prefers to add more and more people to prohibited lists.

Further, imagine the same sort of power in the hands of a Trump administration. Federal agents could clandestinely deny Muslim men — who are disproportionately represented on watch lists — of their civil rights based on unimpeached conjecture. (A good reality check for the next few months is to ask yourself whether you would want a President Trump exercising the same power as President Obama).

Second, even assuming that the evidence is valid, the standard is flawed. Under the Fourth Amendment, if the government can demonstrate to a judge that “probable cause” exists to investigate a person, the police are allowed to search and seize specific evidence in limited places. The Founding Fathers, hardened by King George’s rapacious tax collectors, permitted these temporary searches only to pursue an actual conviction with proof beyond a reasonable doubt. Suspects are not sent to jail based on “probable cause.” This lax standard cannot support a limbo-like dilemma, where a person does not know when his constitutional right was violated, and when — if ever — it may be restored.

Third, and perhaps most troubling, there is no meaningful judicial check on such one-sided proceedings. During these Star Chamber–like inquisitions, only the government can present arguments. The accused, unaware of the hearing, is unable to challenge the government’s evidence. In all likelihood, he would learn of his inclusion only when he flunked a background check. Further, any conceivable appeals process would invariably shift the burden onto the accused to demonstrate why his civil rights ought to be restored. This gets our system of justice absolutely backwards. Under the Constitution, it’s the government that must bear the burden of persuasion when infringing a fundamental constitutional right. Finally, this sisyphean task would be all but impossible for the accused, because the government will not even introduce classified information into the relevant court. Imagine trying to contest evidence you can’t review, relying only on a summary of the charges against you! Meanwhile, during this arduous appeals process—the no-fly list case has been pending in court for over six years—innocent people will have their civil rights trampled on.

I am still stunned that progressives, who for years railed against warrantless wiretaps and secret proceedings before the Foreign Intelligence Surveillance Court have now embraced this Star Chamber because it advances a gun control agenda.

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