Feb 12, 2016

California Assemblyman Does Not Propose Bill Banning People on No-Fly List From Buying Guns, Thanks to LawProfs

In December, I received an email out of the blue from a legislative counsel to California Assemblymember Mike Gatto. She was inquiring about the constitutionality of a law that would prohibit, or restrict people on the federal no-fly list from purchasing guns in California. My answer was that such a law would be unconstitutional, for reasons I stated in this post. In short, people are added to this list without any due process of law. It would violate both the right to keep and bear arms, as well as the Due Process Clause, to deny someone a constitutional right without any process at all. I explained this position to the legislative counsel, who took detailed notes, and explained that her boss was genuinely interested in hearing different perspectives. Over the next month, we had a few more phone conversations. At each juncture, she asked me about different ways of tweaking the bill, so that a hearing could be afforded before a person is prohibited from buying a gun. I explained that such a hearing would be pointless, because the federal government will not disclose the reason why someone was added to the list. It would be a rump hearing, without any conceivable evidence. After that, I didn’t hear anything else.

Yesterday on Twitter, Asssemblymember Gatto announced that he was not proceeding with the bill, and kindly thanked several law professors who advised him.

It is really, really refreshing that an elected official considered a bill that was in the zeitgeist, talked to constitutional experts from across the spectrum, and made a decision contrary to what he was initially inclined to do. Kudos to Mr. Gatto and his staff for taking the Constitution seriously.

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Feb 12, 2016

The Constitution at the Democratic Debate in Milwauke

Tonight Sen. Sanders and Sec. Clinton had a head-to-head debate in Milwaukee.

First, the issue of President Obama’s executive action on immigration came up and Judy Woodruff asked Sanders if he would “go further” than DAPA. He said he would use “executive orders” for the benefit of all 11 million aliens who are in the United States illegally.

Woodruff: Senator Sanders, one of the causes of anxiety for working class Americans is connected to immigrants. President Obama, as you know, has issued executive actions to permit some 5 million undocumented immigrants who are living now in the United States to come out of the shadows without fear of deportation to get work permits. Would you go further than that? And if so, how specifically would you do it? Should an undocumented family watching this debate tonight, say, in Nevada, rest easy, not fear of further deportations under a Sanders presidency?

SANDERS: The answer is yes. We’ve got 11 million undocumented people in this country. I have talked to some of the young kids with tears rolling down their cheeks, are scared to death that today they may or their parents may be deported.

I believe that we have got to pass comprehensive immigration reform, something that I strongly supported. I believe that we have got to move toward a path toward citizenship. I agree with President Obama who used executive orders to protect families because the Congress, the House was unable or refused to act.

And in fact I would go further. What would motivate me and what would be the guiding light for me in terms of immigration reform, Judy, is to bring families together, not divide them up.

And let me say this also. Somebody who is very fond of the president, agrees with him most of the time, I disagree with his recent deportation policies. And I would not support those.

Bottom line is a path towards citizenship for 11 million undocumented people, if Congress doesn’t do the right thing, we use the executive orders of the president.

Sec. Clinton, who has previously said she would grant deferred actions to the parents of the Dreamers, did not go as far as Sanders:

CLINTON: I strongly support the president’s executive actions. I hope the Supreme Court upholds them. I think there is constitutional and legal authority for the president to have done what he did.

Clinton also repeated a refrain, that before there was Obamacare there was Hillarycare.

CLINTON: I can only say that we both share the goal of universal health care coverage. You know, before it was called Obamacare, it was called Hillarycare.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here, hereherehere, and here), and Bernie Sanders (here and here).

Disclosure: I support the Ted Cruz campaign.

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Feb 11, 2016

The Shadow Docket and #SCOTUS As A Court of Error Correction

As Will Baude has explained, in recent years the Roberts Court has turned to its “shadow docket” to resolve increasingly-important matters without argument, through cursory per curiam orders. Perhaps the most significant such shadow-docket entry was the Court’s decision on Tuesday to put on hold the final rule for the Clean Power Plan while the case is being litigated. (Jon Adler provides a detailed background of the rule). As best as I can tell, the Court has never granted such extraordinary relief while the case was being litigated in the Court below.

While this may be the first such order of its kind, it is something we may see more of in the future in light of the transitioning judiciary. From the period of 1980-1992, through three Republican administrations, the lower courts were filled with (generally) conservative jurists. Though there was eight years of Clinton afterwards, it was closely followed by eight years of Bush 43. In 2008, for the most part, the Circuit Courts were stacked with judges appointed by Republican Presidents, plus many senior-status Reagan and Bush 41 judges still hanging around. After eight years of Obama, those numbers have turned around. Many of the older Reagan and Bush 41 judges are slowly leaving the bench. This increases the percentage of Clinton and Obama judges on the federal courts of appeals. If the next President is a Democrat, with four to eight years, the judiciary will be saturated by Democratic-appointed judges in much the same way it was saturated with Republican-appointed judges in 1992.

If in fact this is what happened, the Supreme Court–which until there is a retirement maintains a quasi-conservative majority–very well may increase its role as a Court of error correction. No, I don’t mean error correction in terms of facts. I am talking about error correction in terms of panels that deviate from where SCOTUS thinks the law ought to be. Even before a Circuit Split has emerged, the Court may take action to quickly and promptly correct deviant Circuit Courts through the use of its shadow docket. The decision to grant the stay in the Clean Power Plan case may be an inkling of what may come next, as the Circuits begin to fall further away from the Court’s ideological middle. These short orders, which on their face simply seek to maintain the status quo, provide hints to the lower Court of how they ought to rule. After the Court’s stay, do you think the D.C. Circuit would get the picture that there are five votes to invalidate the Clean Power Plan? Will that even matter? Probably not. But these short orders on the shadow docket do serve an important signaling function–to the extent the lower courts care to follow their lead.


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Feb 11, 2016

Video: First Amendment, Second Amendment, and 3D-Printed Guns at University of Colorado Federalist Society Chapter

On 2/10/16, the University of Colorado Federalist Society Chapter kindly hosted me for a discussion on the First Amendment, Second Amendment, and 3D-Printed Guns. Prof. Richard Collins was kind enough to provide commentary.

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Feb 9, 2016

Breaking: #SCOTUS Grants Stay in Clean Power Plan Cases

This afternoon, the Supreme Court has granted a stay in five applications for a stay in the “Clean Power Plan” litigation. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented from each grant. Here is the order in 15A773, West Virginia v. EPA:

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.

Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

This is a hugely significant development, and puts on hold all of the implementation of the Clean Power Plan–including the requirement for states to begin submitting plans of how to comply with the new regulations.

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Feb 9, 2016

Events tomorrow in Colorado

On Wednesday, February 10 at noon, I will be speaking to the University of Colorado Federalist Society Chapter on the First Amendment, Second Amendment, and 3D-Printed Guns. Prof. Richard Collins will provide commentary for the talk. The event will be in Room 206, and is open to the public.

Later that day, at 5:30 p.m. I will be speaking at a happy hour event for Denver Lawyer’s Chapter on U.S. v. Texas. The event will be held at Appaloosa Bar & Grill, 535 16th Street, Denver, CO 80202.

If you are in Colorado tomorrow, I hope to see you soon!

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Feb 8, 2016

Video: Selecting the Next Justice at Berkeley Law School Federalist Society Chapter

On January 27, the Berkeley Law Federalist Society Chapter hosted me and Ed Whelan for a discussion on selecting the next Supreme Court Justice. Prof. Bertrall Ross was kind enough to offer commentary.



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Feb 7, 2016

Richard Nixon Broke John Adams’s Gavel

Apparently, the President of the Senate used the same gavel from 1789–when John Adams presided–until 1954 when Richard Nixon took the seat. Why? During a raucous debate over atomic energy, Tricky Dicky cracked it! The New York Times has this report from 1982:

It was one of those late night sessions in which some senators, sometimes after a nip or so too many, had become a bit raucous. The Vice President, trying to restore order, rapped the gavel sharply.

Too sharply, in fact; the gavel began falling apart.

That was 28 years ago. The debate was over opening atomic energy to commercial use. The Vice President was Richard M. Nixon. The tiny ivory gavel that broke that night is still brought into the Senate chamber each day during the session, nestled in a velvetlined box that has a twin compartment housing a duplicate ivory gavel used by the presiding officer.

The two gavels, almost identical, are about the size of a threeminute hourglass, such as those used by cooks to time eggs. They do not have handles, as do more traditional gavels.

The original is believed to have been first used by Vice President John Adams to call the Senate to order in 1789 in New York City. There  are no records of who fashioned the gavel.

Nixon then set out to find a replacement. The Government of India provided a new ivory gavel, which is still used today. The gavel on the left is the original, and on the right is the 1954 replacement.


There is some dispute over whether the gavel in fact dated back to 1789. Traditions of the Senate notes:

The earlier gavel was in use by 1834, and according to one account, Vice President John Adams used it to call the first Senate to order in New York City on March 4, 1789. That gavel has silver plates affixed to either end.

The book 200 Notable Days: Senate Stories 1787-2002 explained that “Adams may have used the gavel in 1789, although he seems to have preferred the attention-getting device of tapping his pencil on a water glass.” Of course, Adams derided the position. He said, “My country has in its wisdom contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived.” While the Senate debates were not recorded, this recreation from the John Adams miniseries on HBO likely demonstrates what the interactions between Adams and the Senators would have been like.


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Feb 7, 2016

White House: Exective Action on Guns “Represent the Maximum the Administration can do Under the Current Law”

In an article in the Times lamenting how the President can’t take more unilateral action on gun control, the White House laid down a marker explaining that they are at the outer limits of the President’s authority.

Administration officials say that with Congress unwilling to take any legislative action, the White House’s plan goes as far as Mr. Obama can go to keep guns out of the hands of criminals and mentally ill people.

“The actions the president announced last month represent the maximum the administration can do under the current law,” said Eric Schultz, the deputy White House press secretary, “namely increasing mental health treatment and reporting, improving public safety, managing the future of gun safety technology, and of course, enhancing the background check system.”

Of course, this assurance means absolutely nothing because President Obama personally explained that he lacked the authority to do what he did with DACA and DAPA.

I continue to be amazed with the civically-challenged Times, which is suprised that the President is limited in what he can do without congressional funding. For example, conducting more enforcement actions requires more appropriations by Congress. This concept is foreign to the pen-and-phone generation.

The absence of aggressive enforcement is a reminder of the practical limits of Mr. Obama’s executive authority, even as he repeatedly asserts the power of the Oval Office to get things done in the face of inaction by a Republican Congress.

Mr. Obama’s lawyers have cautioned against seeming to create new gun laws by fiat. The most the president can do, they have said, is to direct better enforcement of the laws that already exist.

My take on the President’s actions on guns are detailed in National Review.

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Feb 6, 2016

The Constitution at the New Hampshire GOP Debate

There was a lot of constitutional-related commentary at the New Hampshire GOP Debate on 2/6/16.

First, Sen. Cruz was asked about how he would reform immigration law. His answer invoked the Take Care Clause:

CRUZ: What you do is, you enforce the law. You know, under the Constitution, the president has an obligation to, quote, “Take care that the laws be faithfully executed.” Federal immigration law provides, if someone is here illegally and is apprehended, they are to be deported.

We saw just this past week the head of the border patrol union testify before Congress that President Obama had given the order to the border patrol to stand down, not to enforce the law. That is wrong. I will enforce the law, and for everyone who says, you can’t possibly do that, I would note that in eight years, Bill Clinton deported 12 million people.

In eight years, George W. Bush deported 10 million people. Enforcing the law — we can do it. What is missing is the political will. And when they were deporting the people, the border wasn’t secure, so they’d come right back. Once you secure the border, enforcing the law will solve this problem and that will benefit American workers.

Second, Donald Trump offered this explanation of how to replace Obamacare:

TRUMP: We’re going to repeal Obamacare. We are going to replace Obamacare with something so much better. And there are so many examples of it. And I will tell you, part of the reason we have some people laughing, because you have insurance people that take care of everybody up here.

I am self-funded. The only one they’re not taking care of is me. We have our lines around each state. The insurance companies are getting rich on Obamacare. The insurance companies are getting rich on health care and health services and everything having to do with health. We are going to end that.

We’re going to take out the artificial boundaries, the artificial lines. We’re going to get a plan where people compete, free enterprise. They compete. So much better.

Third, in one of the more feisty exchanges of the night, Donald Trump was asked about eminent domain:

TRUMP: Well, let me just tell you about eminent domain because almost all of these people actually criticize it, but so many people have hit me with commercials and other things about eminent domain.

Eminent domain is an absolute necessity for a country, for our country. Without it, you wouldn’t have roads, you wouldn’t have hospitals, you wouldn’t have anything. You wouldn’t have schools, you wouldn’t have bridges. You need eminent domain. And a lot of the big conservatives that tell me how conservative they are — I think I’m more than they are — they tell me, oh — well, they all want the Keystone Pipeline. The Keystone Pipeline, without eminent domain, it wouldn’t go 10 feet, OK? You need eminent domain. And eminent domain is a good thing, not a bad thing.

There is so much wrong here. There is a stark difference between eminent domain for public use,” which includes goals like roads or bridges, as well as common carriers, which include railroads and (at least under Texas law) pipelines.

Cruz continues to explain that those who are affected by eminent domain get “a fortune.”

And what a lot of people don’t know because they were all saying, oh, you’re going to take their property. When somebody — when eminent domain is used on somebody’s property, that person gets a fortune. They get at least fair market value, and if they are smart, they’ll get two or three times the value of their property. But without eminent domain, you don’t have roads, highways, schools, bridges or anything. So eminent domain — it’s not that I love it, but eminent domain is absolutely — it’s a necessity for a country. And certainly it’s a necessity for our country.

Wrong. The Constitution provides for “just compensation,” which is seldom fair market value. It doesn’t include transaction costs, legal costs, nor sentimental costs.

Jeb Bush interjected with a near-citation to the Takings Clause:

BUSH: The difference — the difference between eminent domain for public purpose — as Donald said, roads and infrastructure, pipelines and all that — that’s for public purpose. .

The Fifth Amendment states that “nor shall private property be taken for public use, without just compensation.” Public use, not public purpose. (Although, Justice Douglas in Berman v. Parker, and Justice Stevens in Kelo, erroneously frame the issue as one of “public purpose.”)

Bush continues that Trump attempted to use eminent domain to seize the property of an old woman in Atlantic City.

But what Donald Trump did was use eminent domain to try to take the property of an elderly woman on the strip in Atlantic City. That is not public purpose, that is down right wrong. And here’s the problem with that. The problem was, it was to tear down — it was to tear down — it was to tear down the house..

Trump denied that he seized the property.

TRUMP: Jeb wants to be — he wants to be a tough guy tonight. I didn’t take the property.

Bush shot back:

BUSH: And the net result was — you tried. And you lost in the court.

Trump said “The woman ultimately didn’t want to do that. I walked away.”

Bush knocked him back:

That is not true. And the simple fact is to turn this into a limousine parking lot for his casinos is a not public use. And in Florida, based on what we did, we made that impossible. It is part of our Constitution. That’s the better approach. That is the conservative approach.

Bush is exactly right, as the New York Times fact checker explained:

Mr. Bush is correct: Mr. Trump, with the help of the city, tried to use eminent domain against the woman, Vera Coking, when she refused to sell. He wanted her property to expand Trump Plaza Hotel and Casino. After a three-year saga, Ms. Coking prevailed in State Supreme Court.

Trump replied that the Keystone pipeline was a “private job.”

Trump: Eminent domain, the Keystone pipeline — do you consider that a private job? Do you — do you consider that…

Bush correctly replied, quoting the 5th Amendment, that it is a “public use.”

BUSH: I consider it a public use.

TRUMP: No — no, let me ask you, Jeb.


Do you consider the Keystone pipeline private?

BUSH: It’s a public use. It’s a public use.

TRUMP: Is it public or private?

BUSH: It’s a public use. TRUMP: Real — a public use?

BUSH: Yeah.

TRUMP: No, it’s a private job.

BUSH: It’s a public use.

TRUMP: It’s a private job.

BUSH: Established by the courts — federal, state courts.

TRUMP: You wouldn’t have the Keystone pipeline that you want so badly without eminent domain.

Fourth, Rubio tied conservatism to the Constitution:

RUBIO: Well, I think conservatism is about three things and Donald touched on one of them, but it’s about three things. The first is conservatism is about limited government, especially at the federal level. The federal government is a limited government, limited by the Constitution, which delineates its powers. If it’s not in the Constitution, it does not belong to the federal government. It belongs to states, local communities and the private sector.

Fifth, in Trump’s discussion of the economy, he said:

And we’re not going to lose Pfizer, which is now leaving, and other great companies, which is now leaving.

This was a PERFECT opportunity to talk about Kelo, and ask whether he would use eminent domain to attract a Pfizer facility.

Sixth, Ted Cruz was asked about waterboarding and torture.

MUIR: Martha, thank you. We’re just going to — we’re going to stay on ISIS here and the war on terror, because as you know, there’s been a debate in this country about how to deal with the enemy and about enhanced interrogation techniques ever since 9/11.

So Senator Cruz, you have said, quote, “torture is wrong, unambiguously, period. Civilized nations do not engage in torture.” Some of the other candidates say they don’t think waterboarding is torture. Mr. Trump has said, I would bring it back. Senator Cruz, is waterboarding torture?

CRUZ: Well, under the definition of torture, no, it’s not. Under the law, torture is excruciating pain that is equivalent to losing organs and systems, so under the definition of torture, it is not. It is enhanced interrogation, it is vigorous interrogation, but it does not meet the generally recognized definition of torture.

MUIR: If elected president, would you bring it back?

CRUZ: I would not bring it back in any sort of widespread use. And indeed, I joined with Senator McCain in legislation that would prohibit line officers from employing it because I think bad things happen when enhanced interrogation is employed at lower levels.

But when it comes to keeping this country safe, the commander in chief has inherent constitutional authority to keep this country safe. And so, if it were necessary to, say, prevent a city from facing an imminent terrorist attack, you can rest assured that as commander in chief, I would use whatever enhanced interrogation methods we could to keep this country safe.

Seventh, Bush said he would not bring back waterboarding, but would keep Guantanamo open:

BUSH: No, no, I wouldn’t. No, I wouldn’t. And it was used sparingly, Congress has changed the laws and I — and I think where we stand is the appropriate place. But what we need to do is to make sure that we expand our intelligence capabilities. The idea that we’re going to solve this fight with predator drones, killing people somehow is a — is more acceptable than capturing them, securing the information. This is why closing Guantanamo is a complete disaster. What we need to do is make sure that we are kept safe — by having intelligence capabilities, both human and technological intelligence capabilities far superior than what we have today. That’s how you get a more safe place is by making sure that we’re fully engaged. And right now, this administration doesn’t do that.

Eighth,  Rubio would also keep Gitmo open:

Rubio: But, here’s the bigger problem with all this, we’re not interrogating anybody right now. Guantanamo’s being emptied by this president. We should be putting people into Guantanamo, not emptying it out, and we shouldn’t be releasing these killers who are rejoining the battlefield against the United States.

Ninth, Mary Katherine Ham asked about executive orders. First to Sen. Cruz:

HAM: Thanks, David. Senator Cruz, on the campaign trail you’ve promised voters a lot, in fact if you’re elected president you’d say you end Common Core immediately, abolish the IRS, and do away with sanctuary cities. You’ve also been a persistent critic of President Obama’s executive overreach, going it alone, not working with Congress. How do you intend to implement this aggressive agenda within your Constitutional authority, especially given that it would require working with Congress and Washington players with whom you’re happy to say you have a strained relationship?

CRUZ: Well, thank you for that question. You know, there are three avenues of presidential authority to change the direction of this country. The first is executive power, the second is foreign policy, and the third is legislation. Executive power, as we all know, has been the preferred vehicle of President Obama, abusing his authority, abusing his constitutional authority. Now, the silver lining of that is everything done with executive power can be undone with executive power, so I have pledged on day one I will rescind every single illegal and unconstitutional executive action Barack Obama has done. That means on day one his efforts to restrict the Second Amendment go away with the strike of a pen. That means on day one his illegal executive amnesty goes away with the strike of a pen. The reason I can end Common Core at the federal level is because Obama is abusing executive power using Race to the Top funds in the Department of Education to force it on the states. That’s one avenue. The second avenue of change is foreign policy, and foreign policy can change the fastest. It’s worth remembering that Iran released our hostages the day Reagan…Was sworn in. And, the third is legislation, and that can only be done with the people behind you, which is why the two big legislative initiatives I’m campaigning on are repealing Obamacare, and adopting a simple flat tax to abolish the IRS.

Tenth, Trump offered these comments about executive action:

TRUMP: The problem with executive authority for the president, it’s really bad news for this reason. Since he’s given up on working with Congress, he thinks he can impose anything he wants. He’s not a king. He’s a president. An executive order should be used frankly in consolidation and with consulting with the leadership in the — in the Congress.

Eleventh, Bush said he would repeal (really rescind) the President’s unconstitutional executive orders, and focus on the 10th Amendment:

BUSH: This is a — this is an important subject. I agree with everything that’s been said here about repealing unconstitutional rules and rules that are creating real burdens for investing that creating jobs.

But we also ought to get back to being a Tenth Amendment country, as well, a country that respects the states to be able to make more decisions. And in the Bush administration, we would shift transportation dollars back to the states. I trust Kasich and Christie to build the roads and the infrastructure of their states than Washington, D.C.

EPA delegated authority, back to the states. Education dollars, back to the states. I would like to see reform take place all across the country, where there’s more vouchers, more freedom.

Twelfth, Trump made a circular comment about litigiousness, and what I think something about qualified immunity for excessive force suits:

MUIR: Great. Mr. Trump, I did ask about bridging the divide though as president. So what would you say to the American families who say we have lived through this, we have seen excessive force? What would you say to those people?

TRUMP: Well, they do. And, you know, they sue. Everybody sues, right? They see excessive — I mean, they go out, they sue. We have so much litigation — I see the courts, I see what they’re doing. They sue, and you know what? We don’t want excessive force. But at what point — you know, either you’re going to have a police force that can do its job…

Thirteenth, Marco Rubio gave a shot-out to the Little Sisters of the Poor:

And I do believe it is important also to recognize, you want to talk about religious discrimination in America. Well, I don’t think Barack Obama is being sued by any Islamic groups, but he is being sued by the Little Sisters of the Poor. We are facing in this country Christian groups and groups that hold traditional values who feel and in fact are being discriminated against by the laws of this country that try to force them to vie to violate their conscience.

Fourteenth, Chris Christie alluded to Jacobson v. Massachusetts, and the topic of mandatory quarantines with respect to the spread of diseases.

As fear spreads now of the Zika virus and with the Rio Olympics just months away, is there a scenario where you would quarantine people traveling back from Brazil to prevent the spread in the United States?

CHRISTIE: You bet I would. And the fact is that because I took strong action to make sure that anyone who was showing symptoms — remember what happened with that nurse. She was showing symptoms and coming back from a place that had the ebola virus active and she had been treating patients. This was not just some — like, we picked up her just for the heck of it, alright?

We did it because she was showing symptoms, and the fact is that’s the way we should make these decision. You make these decisions based upon the symptoms, the medicine, and the law. We quarantined her, she turned out to test negative ultimately after 48 hours, and we released her back to the State of Maine.

Fifteenth, several of the candidates were asked about requiring women to register for the draft, and issue resolved by the Court in Rostker v. Goldberg.

Rubio supported it:

But, I support that, and obviously now that that is the case I do believe that Selective Service should be opened up for both men and women in case a Draft is ever instituted.

As did Bush:

I do, and I do think that we should not impose any kind of political agenda on the military. There should be — if women can meet the requirements, the minimum requirements for combat service they ought to have the right to do it.

And Christie:

And if a young woman in this country wants to go and fight to defend their country, she should be permitted to do so.

Sixteenth, during a discussion on abortion, Rubio referenced the federal ban on a specific form of partial birth abortions, upheld in Carhart v. Gonzales.

Why doesn’t the media ask Hillary Clinton why she believes that all abortion should be legal, even on the due date of that unborn child.

Why don’t they ask Hillary Clinton why she believe that partial- birth abortion, which is a gruesome procedure that has been outlawed in this country, she thinks that’s a fundamental right. They are the extremists when it comes to the issue of abortion and I can’t wait to expose them in a general election.

However, in a line that was probably missed by most, Rubio acknowledged that the Constitution protects a right to abortion:

On the one hand is the right of a woman to choose what to do with her body which is a real right.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (herehere, and here), and Bernie Sanders (here and here).

Disclosure: I support the Ted Cruz campaign.

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Feb 5, 2016

Bernie, Hillary, and #SCOTUS

At the Democratic Debate on February 4–the first head-to-head matchup between Bernie Sanders and Hillary Clinton, the Supreme Court came up several times.

First, Rachel Maddow asked Clinton about the death penalty:

Maddow: The last time I had the chance to talk with you on this issue, on the death penalty, you said that capital punishment has a place in a very few federal cases, but you also said you would breathe a sigh of relief if the Supreme Court abolished the death penalty nationwide. Tonight, do you still support capital punishment, even if you do so reluctantly?

CLINTON: Yes, I do. And — you know, what I hope the Supreme Court will do is make it absolutely clear that any state that continues capital punishment either must meet the highest standards of evidentiary (ph) proof of effective assistance of counsel or they cannot continue it because that, to me, is the real dividing line.

Clinton has not yet thrown herself into the Breyer patch on the 8th Amendment.

But then Clinton gives a nonsensical argument about how the death penalty should be prohibited by the states, but not by the federal government:

I do for very limited, particularly heinous crimes believe it is an appropriate punishment, but I deeply disagree with the way that too many states are still implementing it. If it were possible to separate the federal from the state system by the Supreme Court, that would, I think, be an appropriate outcome.


Second, Sanders reiterated that he would impose a Citizens United litmus test on any of his nominees to the Supreme Court:

Our job, together, is to end a rigged economy, create an economy that works for all, and absolutely overturn Citizens United. One person, one vote. That’s what American democracy is about.

So long as big money interests control the United States Congress, it is gonna be very hard to do what has to be done for working families. So let me be very clear. No nominee of mine, if I’m elected president, to the United States Supreme Court will get that nomination unless he or she is loud and clear, and says they will vote to overturn Citizens United.

Third, Clinton also stressed that she would only support Justices who would overturn Citizens United:

CLINTON: I want to reverse Citizens United.

Earlier this week, during a candidate forum, Clinton was asked about her process for nominating a Justice, and she replied that she has a “bunch of litmus tests” she would impose on her nominees. Here is the full exchange.

QUESTION:  Hi, Sec. Clinton.  You – the next president will have as many as three Supreme Court appointments to make. 

CLINTON:  Right. 

QUESTION:  I’m wondering beyond abortion are there any issues on which you would impose or assert a litmus test.  And if your answer is no, aren’t certain critical issues like marriage equality, campaign finance just so vital to what we believe in as Democrats that you would have to know the answer as to how these justices would rule before you make the nomination?

CLINTON:  Well, I’ll tell you what, Dave.  I do have a litmus test.  I have a bunch of litmus tests because I agree with you.  The next president could get as many as three appointments.  You know one of the many reasons why we can’t turn the White House over to the Republicans again is because of the Supreme Court. 

I’m looking for people who understand the way the real world works, who don’t have a kneejerk reaction to support business, to support the idea that you know money is speech, that gutted the Voting Rights Act.  

I voted for the reauthorization of the Voting Rights Act when I was in the Senate.  It passed 98 to nothing based on a very extensive set of hearings and research.  Supreme Court comes along.  They substitute their judgment for the Congress, signed by George W. Bush.  

That is one of our problems.  They have a view that I just fundamentally disagree with about what the way we have to keep the balance of power in our society is.  

So they have given way too much power to corporations.  They have given Citizens United, the biggest gift to the Koch brothers, Karl Rove and all of those folks whose values I don’t share, and who are doing everything they can to try to turn the clock back.  

We have to preserve marriage equality.  We have to go further to end discrimination against the LGBT community…


We’ve got to make sure…


We’ve got to make sure to preserve Roe v. Wade, not let it be nibbled away or repealed.  We’ve got work to do…


CLINTON:  – here’s how I think about it, because when I was a senator, I had to vote on Supreme Court justices.

I’m looking for people who are rooted in the real world, who know that part of the genius of our system, both economic and government, is this balance of power.  If it gets too far out of whack, so that business has too much power, any branch of the government has too much power, the delicate balance that makes up our political system and the broad-based prosperity we should be working for in our economy is the worse off for it.

So I have very strong feelings about what I’ll be looking for if I am given the honor of appointing somebody to the Supreme Court.

Jonathan Adler links to a long-ago post from Eugene Volokh on why these litmus tests are so pernicious.

Note that President Obama rejected litmus tests, although he may have applied a sister test. Justice Sotomayor relayed this story while in the Bronx–which I had not previously heard:

She said that her confirmation hearings were a horrible experience and really got her down, but she discovered a lot about the rest of the country during her one-on-one interviews with senators. “I learned what a big issue water rights are out west,” she said. “That’s not something we think about in New York.” Sotomayor said that after she won confirmation, and Elena Kagan followed her, President Obama asked Justice Ruth Bader Ginsburg, “Are you happy with the two sisters I brought you?” Ginsburg replied, “I’m very, very happy. But I’ll be even happier when you give me five more.”

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I previously advised the Rand Paul campaign, and now support the Ted Cruz campaign.


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Feb 4, 2016

POTUS To Open Military Front Against ISIS in Libya. What is the congressional authorization?

The New York Times reports that the President is considering opening a new front against ISIS in Libya. The article doesn’t even bother to address what the congressional authorization is for such a move. Is it the 2001 AUMF against Al Qaeda, because after all, Al Qaeda is really ISIS. Or is it the 2002 AUMF against Iraq, because after all, Iraq is really Iraq, Syria, and now Lebanon. To borrow from Justice Scalia’s dissent in King v. Burwell, “words no longer have meaning.”

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Feb 3, 2016

Cambridge University Press will Publish “Unraveled: Obamacare, Religious Liberty, & Executive Power”

I am honored to announce that Cambridge University Press will publish my next book, “Unraveled: Obamacare, Religious Liberty, & Executive Power.” If everything goes to plan, the book will be released in September 2016, right before the beginning of the October 2016 term, and before the next presidential election. Unraveled will pick up where Unprecedented left off–in January 2013, and tell the story of the ACA’s second Act. The book will be book-ended by Hobby Lobby, King v. Burwell, and Little Sisters of the Poor, but also chronicle Obama’s political intrigues since its inception. In many respects, Unraveled fills in a lot of the gaps from Unprecedented–events that didn’t seem relevant years ago, that became much more relevant in light of later events.

Here is the current table of contents–note that the last few chapters remain to be written in light of whatever the Court does in Little Sisters, and what happens with the Presidential primaries between now and July 5, 2016 (my final submission date for final chapters).  See if you can figure out what the chapters are about based on the title.

Part I: The Promise of Obamacare (1/20/09 – 6/28/12)

            Chapter 1: If you like your insurance, you can keep your insurance.

Chapter 2: Federal and state exchanges

Chapter 3: Life and Religious Liberty

Part II: Conscience and Contraception (6/29/12 – 5/1/13)

Chapter 4: The Contraception Mandate

Chapter 5: Election Slowdown

Chapter 6: Religious Liberty in the Courts

Part III: Shutdown (5/21/13 – 9/30/13)

Chapter 7: Exchanges “established by the state”

Chapter 8: Tea Party Summer

Chapter 9: Train Wreck

Chapter 10: Filibuster

Part IV: Obamacare Unravels (10/1/13 – 12/30/13)

Chapter 11: Lights Out

Chapter 12: Cancelled

Chapter 13: Regulation by blog post

Chapter 14: Crashing into the Deadline

Part V: Religious Liberty (12/31/13 – 7/21/14)

Chapter 15: New Year’s Resolution

Chapter 16: Substantial Burden

Chapter 17: Glitch

Chapter 18: Between two ferns

Chapter 19: Corporate Prayer

Chapter 20: Notorious RBG

Part VI: Nuclear Fallout (7/22/14 – 11/21/14)

Chapter 21: Circuit Split

Chapter 22: Dueling Petitions

Chapter 23: Sue the President

Part VII: Subsidizing Obamacare (11/22/14 – 6/26/15)

Chapter 24: Grubergate

Chapter 25: King v. Burwell

Chapter 26: Gridlock

Chapter 27: Unravel the fabric

Chapter 28: Improve, don’t Destroy

Part VIII: The Nuns (6/27/15 – 6/30/16)

Chapter 29-33: To be concluded.


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Jan 31, 2016

Cruz on #SCOTUS: “I will be willing to spend whatever political capital is necessary.”

In Iowa, Ted Cruz offered extended remarks on how he would approach nominating Justices to the Supreme Court (via ThinkProgress):

We are one justice away from the Supreme Court concluding that nobody in this room and no American has an individual right to keep and bear arms. We are one justice away from the Supreme Court striking down school choice programs across this country. We are one justice away from the Supreme Court striking down every restriction on abortion, and mandating unlimited abortion on demand, up until the time of birth, partial birth, with taxpayer funding, and no parental notification whatsoever. We are one justice away from the Supreme Court ordering veterans memorials torn down all over this country if they contain any acknowledgement of God Almighty.

Now the simple reality is Democrats on this issue, bat almost a thousand. Almost every Justice they put on the Supreme Court votes exactly as they intend. Republicans, we bat about .500. About half of our nominees are faithful to the Constitution. The other half are disasters. Many of the most liberal justices in this country — Earl Warren, Bill Brennan, John Paul Stevens, David Souter, Harry Blackmun, the author of Roe v. Wade — all of those were Republican appointees. And the reason is simple. Over and over again we keep electing Republican presidents for whom the Court is not a priority. And when it comes to a nomination, they take the easy road out.

They don’t want to nominate a principled constitutionalist, because then you have a fight on your hands. So instead they nominate a stealth candidate. Someone with no paper trail. Someone who is easy to confirm. And every single time we do that, we get caught.

Now I have spent my entire adult life fighting judicial activism, fighting to defend the Constitution, fighting to defend the Bill of Rights. Unlike the very fine individuals on that debate stage, I will be willing to spend whatever political capital is necessary, and sir I give you my word, every Justice I put on that court will be a principled constitutionalist jurist with a proven record who will be faithful to the law and will not legislate from the bench.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (herehereherehere, and here), Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz (here and here), Hillary Clinton (here and here), and Bernie Sanders (here and here).

Disclosure: I advise the Rand Paul campaign.

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Jan 29, 2016

Video: Stanford Law Federalist Society – 1st Amendment, 2nd Amendment, and 3D-Printed Guns

On Thursday, January 28, the Stanford Federalist Society Chapter hosted me for a discussion of 3D-Printed guns, and how they interact with the First and Second Amendment. Prof. Michael McConnell was kind enough to comment on my talk.

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Jan 28, 2016

61% of Americans Support Deferred Action Policy Generally, Only 54% Support it through Executive Action

A new Reuters Poll asked respondents about whether they “back a plan that would allow certain illegal immigrants to stay in the country.” (I could not find the exact wording of the question). The results are interesting.

When the question was framed “in general terms,” support was broader for the policy.

The poll shows 61 percent of Americans support the plan to relax immigration policy for some undocumented people when it is described in general terms without using Obama’s name, including 42 percent of Republicans. Half of Republicans opposed the idea.

I suppose this means by statute, but without the actual polling question, I don’t know.

But when framed in terms of an executive action, support dropped, and fractured along political lines.

But when the same plan was described as being an executive action taken by Obama, support fell to 54 percent overall, with only 31 percent of Republicans supporting it and 62 percent opposing the measures.

For Democrats, 78 percent supported the plan when it was described without using Obama’s name, and 80 percent supported it when the president’s name was attached to it.

So what do we make of this? Republicans oppose the plan when it is tied to Obama’s executive action. For Democrats, it makes no difference. More broadly, overall support for the policy is 61% when performed without executive action. When it is performed for executive action, support drops down to 54%. The credibility interval is 3.2%. In other words, it becomes a 50/50 issue.

Regardless of what certain elite segments of the media tell you, this isn’t an open-and-shut issue.

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Jan 28, 2016

Health Care Ranked 8th Among Issues Facing Voters

One of the most common myths of the Affordable Care Act is that President Obama was inaugurated with a mandate by the American people to reform health insurance. On election day 2008, health care ranked as the fourth most important issue, following the economy, terrorism, and even gas prices! Additionally, President Obama ran on a health care plan that did not have an individual mandate, and did not raise taxes on anyone. The plan he proposed was effectively ripped off from Hillary Clinton, and the very elements he campaigned against. Why was healthcare ranked as such a low priority? Because the overwhelming majority of people were happy with their insurance. Here is a preview from Unraveled:

Every year since 2001, Gallup has surveyed Americans on how they would rate the quality of their personal healthcare. Consistently, year after year, around 80% of respondents rated it as good or excellent.[1] A February 2007 poll by CBS News found that 85% of people were satisfied with the quality of their own health insurance.[2] A September 2009 Quinnipiac University poll found that 88% of respondents were satisfied with their coverage.[3]  A June 2009 survey by ABC News yielded an 81% satisfaction rate.[4] Similarly, an August 2009 survey by the Kaiser Family Foundation found that 91% of the insured Americans rated their coverage as excellent or good.[5] Among the insured, 67% were very satisfied with their choice of doctors, 66% were very satisfied with the quality of care, and 82% were at least somewhat satisfied with the amount they paid. For the most part, people liked their insurance and doctors.

So it isn’t surprising, at all, that health care was not a highly-ranked issue among registered voters. Eight years later, a Kaiser poll has found that health-care is still the eighth-ranked issue.

Despite the ongoing debate between Republican lawmakers and President Obama on the future of the 2010 health care law, the January Kaiser Health Tracking Poll finds the Affordable Care Act (ACA) is only one of many issues that may impact voting decisions, with nearly a quarter (23 percent) saying it’s extremely important, but only four percent choosing it as the MOST important issue. Across all issues included in the poll, terrorism and the economy/jobs are the top two issues for voters at this point in the election. Across parties, the ACA does not rank higher than fourth in what voters say will be most important.

Now what is the takeaway here. Some may say this suggests that repealing Obamacare is not a priority. I disagree. For the most part, people haven’t quite felt the brunt of the ACA, so it’s elimination would not have nearly the same effect on the electorate as many predict. Note that this is a survey of registered voters. As Chuck Schumer noted, those who stand to lose the most are not registered.


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Jan 27, 2016

Justice Alito at 10 Years

In this month’s ABA Journal, Mark Walsh has a profile of Justice Alito’s ten years of service. Mark quotes me, and references my post about Alito’s remarks to the Federalist Society Texas Conference, where the Justice spoke at the George W. Bush Presidential library.

While the chief justice has spurned any contact with the Federalist Society, the conservative counterpart of the ACS, Alito has spoken frequently to the group and its affiliates. That includes a Texas event last September in which, according to one report, Alito reflected on his tenure and seemed to take some pleasure in the failed effort by Senate Democrats to filibuster his confirmation in 2006.

Josh Blackman, an associate professor at South Texas College of Law in Houston, attended the Sept. 19 Federalist Society Texas Chapters Conference in Dallas. The event was held at the institute of the president who appointed Alito to the Supreme Court, George W. Bush. Blackman posted a detailed account of the event, which included Alito dishing on some of the big cases of his tenure, including those in which he was in the majority and in dissent.

Blackman, a libertarian, said Alito seemed to relish appearances before conservative and libertarian crowds such as those attending Federalist Society events. “This is a crowd that will appreciate the constitutional perspective that he brings to the job,” Blackman says. “That may not be the case when he speaks at a law school.”


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Jan 27, 2016

Of Course House of Representative’s Obamacare Suit Would Increase Government Spending. All illegal modifications of the law do that.

Modern Healthcare reports on an Urban Institute study suggesting that if House of Representatives is successful, and the insurers receive less direct funding from the government, then they will raise premiums, and as a result premium tax credits (which are also paid for by the government) will increase.

If House Republicans win that lawsuit, costs to the federal government for keeping the law afloat could skyrocket, according to the Urban Institute, which does economic and social policy research.

That’s because the ACA requires insurers to offer cost-sharing reductions regardless of government funding. Without government reimbursement, insurers may offset those losses by increasing premiums on marketplace silver plans. That, in turn, would cause premium tax credits to rise to cover the higher premiums.

The government would then be on the hook for those higher premiums tax credits, which would go to many more people than just those who receive cost sharing reductions, according to the brief.

Well, duh!

Josh Blackman, an associate professor of law at South Texas College of Law, said it’s no surprise that a House win may result in higher costs for the government for the ACA.

“Whenever the law’s been modified by the executive, whenever the executive takes action that delays provisions of the law, that results in premiums going up and when premiums go up, that increases the amount of subsidies that have to be paid out,” Blackman said. “This seems like par for the course.”

When the individual mandate was delayed, insurers lost revenues. That resulted in higher premiums, yielding more premium tax credits.

When the administration offered special enrollment periods beyond the deadlines, customers were able to sign up when they get sick, use a lot of health care, and drop coverage. As a result insurers lost revenues. That resulted in higher premiums, yielding more premium tax credits.

When the employer mandate was delayed, insurers had fewer policies to underwrite. That resulted in higher premiums, yielding more premium tax credits. Are you sensing a pattern?

Every single time the President has tweaked the law, and screwed up the actuarial forecasts, the insurers lost money. As a result, premiums went up, and therefore tax subsidies went up. I don’t recall the Urban Institute releasing a similar report in light of previous modifications of the law.

If the goal was to keep the cost of insurance low, then the law would not have been modified in the way it was. That wasn’t the goal. Instead, the mission has been to keep the law on life support for as long as possible.

Also, I highly recommend Nick Bagley’s new paper on the legality of delays in the ACA. In particular, Nick writes that the President broke the law with the question at issue in the House lawsuit, but he doesn’t think there is standing.

Bagley recently wrote in a draft paper to be published in the University of Pennsylvania Law Review that by financing cost-sharing reductions out of an appropriations governing tax refunds, President Barack Obama “appears to have broken the law.”

Bagley, however, said he believes a federal appeals court will ultimately reverse the district court’s decision on House Republicans’ standing to sue over the matter.


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Jan 27, 2016

Why Obamacare Remains Vulnerable to Repeal

Avik Roy analyzes recent CBO estimates that “slashed their 2016 estimates of exchange enrollment from 21 million to 13 million.” He explains, in very clear terms, why the law is nowhere near as secure as some may think–the number of people harmed by the law far exceeds the number of people who benefited from the law. Also, those who benefited are unlikely to vote, or even be registered. Read this analysis in its entirety:

For all of the taxes and regulations and spending contained in Obamacare, what’s remarkable about the law is that it has only reduced the percentage of U.S. residents without health insurance by 2.7 percentage points between 2008 and 2014. The total U.S. population in 2014 was 318.3 million, meaning that the total impact of Obamacare on the uninsured population, on a 2014-adjusted basis, was around 8.6 million.

Remember that only a fraction of that 2.7 percent are U.S. citizens who can vote. “It has been reported that only a third of the uninsured are even registered to vote,” complained New York Sen. Chuck Schumer (D.) in 2014. Obamacare, said Schumer, “made no political sense.”

Also note that 8.6 million is a far lower figure than the number of people currently enrolled in Obamacare-sponsored products. Elsewhere in the latest Budget and Economic Outlook, CBO stated that “average monthly enrollment of newly eligible Medicaid beneficiaries was…9.6 million [in 2015] compared with 6.1 million in 2014.” Adding that to exchange enrollment gets you to roughly 24 million people on Obamacare-sponsored products.

The Obama administration often boasts about that much larger figure, claiming that 24 million people have been helped by Obamacare. But the government’s official estimates are that it’s under 9 million. Of which only a fraction can vote in the 2016 election.

Compare that to the number of people whose plans have been canceled (6 million), or the number of people who’ve had their premiums or their taxes hiked (dozens of millions). And that’s why Obamacare remains gravely vulnerable to repeal.

This is frankly inescapable from a political perspective. If people aren’t happy with the law, it doesn’t stay forever. The arguments about entrenchment seem much weaker in 2016 than they did in 2013–especially as states continue to refuse to expand Medicaid, a decision that frankly hasn’t been much of an issue on the national or local level.

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