Marvin M. Brandt Revocable Trust v. United States is a case that (perhaps) only property professors can enjoy. In another installment in the lengthy “Rails to Trails” litigation, this case considers whether the government retains a reversionary interest in an easement that was granted, and abandoned, by a railroad.
In the mid-19th century, Congress began granting pri vate railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads’ rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad’s right of way granted under a particular statute—the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?
Writing for 8 Justices, Chief Justice Roberts notes that the Court previously adopted the position the Solicitor General successfully argued in 1942 (the SG in 1942 was Charles Fahy):
The Govern ment loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).
Yet, 70 years later the Government takes a different position.
Contrary to that straightforward conclusion, the Gov ernment now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and min-
erals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as “easements” to that context. Even if the right of way has some features of an easement—such as granting only a surface interest to the railroad when the Govern ment wants the subsurface oil and minerals—the Gov ernment asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.
Roberts even finds this change of position “ironic”:
We cannot overlook the irony in the Government’s ar gument based on Sections 912 and 940. Those provisions plainly evince Congress’s intent to divest the United States of any title or interest it had retained to railroad rights of way, and to vest that interest in individuals to whom the underlying land had been patented—in other words, people just like the Brandts. It was not until 1988—12 years after the United States patented the Fox Park parcel to the Brandts—that Congress did an about face and attempted to reserve the rights of way to the United States. That policy shift cannot operate to create an interest in land that the Government had already given away.5
So now, the United States is estopped by positions taken 70 years ago on property issues.
More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied rever sionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are con cerned.” Leo Sheep Co., supra, at 687.
Justice Sotomayor doubts that the government actually changed course, noting the critique is misplaced here
Even assuming that it is an injustice for the Govern- ment to change positions on an issue over a 70-year period, it is not clear that such a change in position happened here. Yes, the Government argued in Great Northern that a right of way was an “easement.” It proposed, however, that the right of way may well have had “some of the attributes of a fee.” Brief for United States in Great Northern R. Co. v. United States, O. T. 1941, No. 149, pp. 36–37. The Government contended that it is “ ‘not important whether the interest or estate passed be consid- ered an easement or a limited fee,’” observing that an easement “may be held in fee determinable.” Id., at 35–36 (quoting United States v. Big Horn Land & Cattle Co., 17 F. 2d 357, 365 (CA8 1927)). Indeed, the Government expressly reserved the possibility that it retained a rever- sionary interest in the right of way, even if the surround- ing land was patented to others. Brief for United States in Great Northern, at 10 n. 4. The Court is right to criticize the Government when it takes “self-serving” and contra- dictory positions, ante, at 12, but such critique is mis- placed here.
The intersection of predictive analytics and policing stands to drastically reshape how the police investigate crimes, and perhaps, anticipate crimes. A new article in the Pennsylvania Law Review, titled “Big Data and Predictive Reasonable Suspicion” addresses just this issue. Here is the abstract:
The Fourth Amendment requires “reasonable suspicion” to seize a suspect. As a general matter, the suspicion derives from information a police officer observes or knows. It is individualized to a particular person at a particular place. Most reasonable suspicion cases involve police confronting unknown suspects engaged in observable suspicious activities. Essentially, the reasonable suspicion doctrine is based on “small data” – discrete facts involving limited information and little knowledge about the suspect.
But what if this small data is replaced by “big data”? What if police can “know” about the suspect through new networked information sources? Or, what if predictive analytics can forecast who will be the likely troublemakers in a community? The rise of big data technology offers a challenge to the traditional paradigm of Fourth Amendment law. Now, with little effort, most unknown suspects can be “known,” as a web of information can identify and provide extensive personal data about a suspect independent of the officer’s observations. New data sources including law enforcement databases, third party information sources (phone records, rental records, GPS data, video surveillance data, etc.), and predictive analytics, combined with biometric or facial recognition software, means that information about that suspect can be known in a few data searches. At some point, the data (independent of the observation) may become sufficiently individualized and predictive to justify the seizure of a suspect. The question this article poses is can a Fourth Amendment stop be predicated on the aggregation of specific, individualized, but otherwise non-criminal factors?
This article traces the consequences in the shift from a “small data” reasonable suspicion doctrine, focused on specific, observable actions of unknown suspects, to the “big data” reality of an interconnected information rich world of known suspects. With more targeted information, police officers on the streets will have a stronger predictive sense about the likelihood that they are observing criminal activity. This evolution, however, only hints at the promise of big data policing. The next phase will be using existing predictive analytics to target suspects without any actual observation of criminal activity, merely relying on the accumulation of various data points. Unknown suspects will become known, not because of who they are but because of the data they left behind. Using pattern matching techniques through networked databases, individuals will be targeted out of the vast flow of informational data. This new reality subverts reasonable suspicion from being a source of protection against unreasonable stops, to a means of justifying those same stops.
On Wednesday, Aaron Streett made his first argument at One First Street in Halliburton Co. v. Erica P. John Fund, Inc. And for his first argument, he argued alongside David Boies and Deputy Solicitor General Malcolm Stewart!
You can listen to the audio here. Congratulations Aaron!
Here are some shaky clips I captured from my recent appearance on Houston PBS Red, White, and Blue talking about the Supreme Court.
Here is a picture from the set, with the hosts, Gary Pollard, Linda Lorelle, and Davide Jones.
On the Red, white, and blue set talking about the supreme court pic.twitter.com/y5eJOjMEep
— Josh Blackman (@JoshMBlackman) February 20, 2014
Avik Roy breaks down a very difficult metric the government seems to have no interest in measuring–how many people who signed up for Obamacare were previous uninsured:
McKinsey, the leading management consulting firm, has been conducting monthly surveys of the exchange-eligible population under the auspices of its Center for U.S. Health System Reform. McKinsey’s most recent survey, conducted in February with 2,096 eligible respondents, found that only 48 percent had thus far signed up for a 2014 health plan. Within that 48 percent, three-fifths were previously insured people who liked their old plans and were able to keep them. The remaining two-fifths were the ones who signed up for coverage on the Obamacare exchanges.
Of the Obamacare sign-ups, only 27 percent had been previously uninsured in 2013. And of the 27 percent, nearly half had yet to pay a premium. (By contrast, among the 73 percent who had been previously insured, 86 percent had paid.)
Put all those percentages together, and you get two key stats. Only 19 percent of those who have paid a premium were previously uninsured. Among those that the administration is touting as sign-ups, only 14 percent are previously uninsured enrollees: approximately 472,000 people as of February 1.
And why are the previously uninsured people not signing up? Because it is now too expensive–thanks to Obamacare.
Here’s an important finding from McKinsey. The authors of the study—Amit Bhardwaj, Erica Coe, Jenny Cordina, and Mahi Rayasam—asked those who decided not to enroll in a plan what their reasons were for doing so. The most frequent reason—cited by 50 percent of respondents—was that “I could not afford to pay the premium.” Only 27 percent cited technical challenges; 14 percent said they couldn’t find a plan that met their needs. 21 percent said they were still deciding.
This is the biggest problem with the way the “Affordable Care Act” approached coverage expansion. The reason why so many Americans are uninsured is because health insurance in this country is too expensive. Obamacare increases the underlying cost of health insurance, and then uses taxpayer-funded subsidies to offset those costs for some.
Plus, you have to consider that nearly 5 million Americans had their policies cancelled–with many more future cancellations, notwithstanding the most recent decision to extend ineligible plans till 2016.
Keep in mind another fact: According to the Associated Press, at least 4.7 million Americans who shop for coverage on their own have had their plans canceled because they don’t conform to Obamacare’s regulations. So Obamacare has disrupted the coverage of millions of Americans, requiring many to purchase costlier policies with higher deductibles and narrower doctor networks, for a fairly modest expansion of coverage.
According to the administration, total sign-ups now exceed 4 million. But on a recent HHS conference call, Obamacare implementation point man Gary Cohen was asked the key question: how many of the people who have signed up for Obamacare were previously insured? His response: “That’s not a data point that we are really collecting in any sort of systematic way.”
So. The whole point of Obamacare was to expand coverage to the uninsured. But for the tens of thousands of regulations that the law has imposed on the country, its authors never bothered to try to measure the one thing that they were actually trying to achieve. That about sums it all up.
This is a pretty good outline for the sequel for my next book on Obamacare, Unraveled.
This column has analyzed the disaster of ObamaCare in terms of three phases. Phase 1, the technical failure, was evident as soon as open enrollment began on Oct. 1 and many of the exchange websites proved to have been incompetently designed. Technical problems continue to emerge, including, as noted here last week, the Internal Revenue Service’s tardiness in preparing the final instructions for Form 8960, which taxpayers must file if they owe the new ObamaCare “net investment income tax.”
Phase 2 is the revelation that ObamaCare’s central promise–”if you like your plan, you can keep your plan”–was fraudulent. In an effort to appease defrauded consumers, the Obama administration has announced a series of unlegislated exceptions to the law, which the president himself attempted to explain the other day….
Even the New York Timesacknowledges as much in an editorial today:
Ideally, President Obama would not have extended the period for retaining the less-comprehensive policies, but in the current political environment, he opted to take a step to protect health care reform against a Republican takeover in the Senate.
The third phase of failure is the slow revelation that the basic economic assumptions behind ObamaCare are wrong. A new survey from McKinsey & Co., conducted in February, found that only 10% of those who lacked insurance pre-ObamaCare had signed up for an exchange plan, and that of those who had signed up, just 27% were previously uninsured.
True, those numbers were up significantly from January’s figures, 3% and 11% respectively. Still, they’re low enough that the Washington Post sums it up: “The new health insurance marketplaces appear to be making little headway in signing up Americans who lack insurance, the Affordable Care Act’s central goal.”
Of late, I am now leaning towards writing the book to coincide with the 2016 election. That should be good timing.
This passage from “The Bully Pulpit” shows how little the coverage of the Court has changed over the last century–reporters wait with bated breath, and as soon as they can, run to file their reports.
ON MARCH 14, 1904, AS word spread that the Northern Securities merger decision was imminent, an immense crowd gathered outside the Supreme Court. For Roosevelt, the outcome loomed with enormous implications for his party, as well as the nation. If the Court sustained the administration’s argument that the colossal merger represented a monopoly that restricted trade, the victory would demonstrate a fundamental shift in the Republican Party’s relationship with the trusts. Inside the chamber, seating was filled to capacity. Dozens of senators and congressmen jockeyed for space in the section normally reserved for families of the justices. At the government bench, Attorney General Knox and Secretary Taft sat side by side, their expressions marked by “nervous expectancy.” Nearby, ranks of powerful corporate lawyers had assembled. At the back of the chamber, more than fifty newspapermen, “paper and pencil in hands,” readied to race to the telegraph wires the moment the ruling came down. “It required but little effort of imagination,” one reporter noted, “to see in the vast background millions of American citizens awaiting the outcome of this judicial battle against daring financiers.” The crowd stood as the Court crier opened the session with the traditional cry: “Oyez, Oyez, Oyez.”
Just like today.
As Justice John Harlan began to read the Court’s 5– 4 opinion, papers reported, “everyone was alert for the significant sentence which should disclose the attitude of the majority.”
Just like today.
Phones, the internet, and the rest of the 20th Century hasn’t quite made it into One First Street.
And it was in this case that Holmes joined the dissent that President Roosevelt famously lashed out against him.
Roosevelt was stunned by Holmes’s dissent. “I could carve out of a banana a judge with more backbone than that,” he angrily charged. Years later, Holmes agreed that the Northern Securities case had derailed his nascent friendship with Roosevelt. “We talked freely later,” he recalled, “but it was never the same.”
Eric Posner had this to say about those “libertarians” that carrying around pocket Constitutions.
In our last class, we discussed Jack Balkin’s paper, Why Are Americans Originalist?, which I interpret as a sly debunking exercise. Balkin’s most interesting argument is that the turn to originalism in the 1980s was akin to Martin Luther’s repudiation of the Catholic Church’s monopoly over Biblical interpretation, with the Supreme Court playing the role of the Church. (You might think of the habit among libertarians of carrying around a pocket-sized constitution as the modern version of biblical translation into the common language.)
I hope Will Baude brings a Constitution to the next class. I keep one in each suit. That way I always have on nearby.
In honor of President’s Day, I recently visited the National Archives. With the utmost awe and reverence, I walked up to the enclosed cases containing the original copy of our United States Constitution. My eyes slowly panned across my favorite provisions—Article I limiting the powers of Congress, Article III creating the Supreme Court, and Article VI stating that the Constitution is the “Supreme Law of the Land.” But, my immersion in our Charter of Liberty was abruptly interrupted. A guard told me to keep walking: “Please do not read the entire Constitution. If you want to read the entire document, please visit the gift shop.”
I could not believe my ears. Could he possibly be serious? Did he actually just say what I think he said? Now, I recognize the guard was attempting to move the crowd along (a small line had formed), and that he likely had said this many times before. But the thought that a guard would have the gall to tell visitors to our Nation’s capital to not read our Constitution is appalling. By the way, all federal employees draw a salary by virtue of the Constitution’s “Appropriations Clause,” found in Article I, Section 9, in case he allowed anyone to read that far.
No one, myself included, was going to read the entire document. At best, maybe interested guests would look at a few provisions and try to make out the faded letters on the parchment (it is not easy to read). This exercise would take several seconds, at the most. But instead of allowing people—who may only witness the majesty of our Constitution once in their lives—the opportunity to savor the moment, it is apparently the official policy of the National Archives to move people along. Nothing to see here, apparently.
I cannot imagine that any other museum in Washington, or anywhere in the world, would rush people past an exhibit—let alone the Constitution, a document that every American should discuss and learn more about. Any policy that favors rushing more visitors past our founding documents, at the expense of denying them the opportunity to even read a few letters, strikes the wrong balance.
As a surreal post-script to this troubling episode, after I departed from the rotunda containing the Constitution, as the guard suggested, I went to the gift shop. I was drawn to a sign that advertised “The Declaration of Independence in a Bottle” for $2.95. I looked closely at the bottle and saw the phrase, “We the People.” Huh?! This wasn’t the Declaration of Independence. This was the Constitution of the United States. I brought this error to the attention of a manager. She promptly switched the signs around, so that the “Constitution in a Bottle” sign now appeared in front of the Constitutions. No problem, right? That the National Archives made such a mistake is stunning. I have no idea how long the exhibit was mislabeled, and I hope visitors did not buy the wrong document.
These charters of freedom belong to We the People. We should expect better from the museum charged with protecting our national treasures.
Cross-Posted at Law & Liberty.
During oral arguments in NFIB v. Sebelius, the Solicitor General of the United States, charged with defending the Affordable Care Act, made the argument that the law actually promotes liberty. As I retell in Unprecedented, Solicitor General Verrilli drew together a connection between freedom, and health care security.
Verilli continued, “There is an important connection.” He paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that.” These were comments likely aimed at Justice Kennedy, who has grounded his ve the opportunity to enjoy the blessings of liberty . . . “In a very fundamental way, this Medicaid expansion, as well jurisprudence in the protection of individual liberty and dignity interests.
Turning to the practical realities at hand, “in this population of Medicaid eligible people who will receive health care that they cannot now afford under this Medicaid expansion, there will be millions of people with chronic conditions like diabetes and heart disease, and as a result of the health care that they will get, they will be unshackled from the disabilities that those diseases put on them and has the provisions we discussed yesterday, secure the blessings of liberty.” Here, Verrilli was quoting from the Preamble to our Constitution, which states that the United States was formed to “secure the Blessings of Liberty to ourselves and our Posterity.”
To many, this is a bizarre notion of liberty. Mandating that millions of Americans purchase a product they may not want, and forcing sovereign states to expand a program against their wishes, so that others have access to more-affordable health insurance is a funny conception of liberty. In response, Paul Clement, who was arguing on behalf of the challengers in NFIB painted a very different vision of liberty.
Without skipping a beat, the Chief Justice said, “Thank you, General. Mr. Clement, you have 5 minutes.” Paul Clement rose to have the last word, and provided an impromptu rebuttal that offered a very different vision of what liberty means.
“Let me just finish by saying I certainly appreciate what the Solicitor General says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty–aimed directly at Justice Kennedy.
“But I would respectfully suggest that it’s a very funny conception of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the liberty of Justice Kennedy.
Clement echoed a point he had made in his brief: “The Constitution protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’ authority to regulate existing commercial intercourse. It is a revolution in the relationship between the central government and the governed . . . However, by making clear that this uncabined authority is not among the limited and enumerated powers granted the federal government, this Court will preserve our basic constitutional structure and the individual liberty, state sovereignty, and government accountability it guarantees . . . An individual can do very little to avoid the long arm of the federal government other than refrain from entering into the commerce that Congress may regulate. ”
Clement continued, “And it’s a very strange conception of federalism that says that we can simply give the States an offer that they can’t refuse, and through the spending power which is premised on the notion that Congress can do more because it’s voluntary, we can force the States to do whatever we tell them to. That is a direct threat to our federalism.” This was not the federalism of Justice Kennedy. Clement wrote, in his brief “If this is to remain a system of limited and enumerated federal powers that respects individual liberty, accountability, and the residual dignity and sovereignty of the States, the individual mandate cannot stand”
I call these dichotomous views the two conceptions of liberty in NFIB v. Sebelius.
Most strikingly, one of the key benefits that supporters of the ACA cite is that now people, no longer having to worry about buying healthcare, can pursue their own happiness as entrepreneurs. Free health care makes them more free.
This piece in CNN, titled “I’m quitting my job.Thanks, Obamacare!” illustrates this dynamic.
Now that Karen Willmus can get health insurance through Obamacare, she plans to quit teaching 9th grade English at the end of the school year.
The 51-year-old found policies on the Colorado state exchange for about $300 a month. That’s less than what she’s paying now for employer-sponsored coverage and less than half what she paid on the individual market in 2007.
Like Willmus, millions of people could quit their jobs or cut back on their hours in coming years because of Obamacare, according to a recent report from the Congressional Budget Office.
Though, stated differently, the Affordable Care Act will eliminate over 2.5 million jobs during the next decade.
The report found that Obamacare could reduce the labor force by the equivalent of 2.5 million workers by 2024, as many Americans may opt to work less to retain eligibility for Medicaid or subsidies. That sparked a fresh round of criticism that health reform is hurting the economy.
As an economic argument, this position is difficult to digest. Not all of these people leaving their jobs are doing so entirely volitionally. First, the ACA makes employment much more expensive–especially for those at the bottom of the pay-scale. Second, many jobs that were eliminated during the last downturn, will not be recreated, because the marginal cost of the employee is not worth it.
Though, some are spinning this news as a good thing–that people should be able to leave their jobs, retire earlier, and seek out entrepreneurial activities. This is Verrilli’s notion of freedom–that the ACA secures this blessing of liberty.
But for some, Obamacare is allowing them to become entrepreneurs or retire a few years early since they’ll be able to find affordable individual coverage for the first time.
Instead of eating bonbons on her couch, Willmus plans to start her own business with her teen daughter publishing materials for non-native English speakers and others looking to improve their literacy. She expects to work even more than she does now and hire two or three people.
“I can’t afford to go out and buy insurance while trying to start a business,” said Willmus, of Colorado Springs, Colo. “Obamacare will allow me to be more comfortable at risking what I own.”
As a child of two entrepreneurs, I have great respect of those willing to risk their wealth on going it alone. But the unavoidable fact is that nearly all of these businesses will fail. Tyler Cowen addresses this point in his new book, Average is Over.
As we should expect from these developments, many American workers are turning to self-employment. For instance, in 2010 an average of 565,000 Americans a month started businesses, the highest rate of the last decade. We’re not suddenly more energetic; rather, a lot of these people had a hard time finding remunerative work elsewhere. Starting your own business may seem like praiseworthy creative entrepreneurship, but often it is a sign that labor markets are not absorbing everyone at a reasonable wage.
These two differing conceptions of liberty–positive and negative–will frame any debate over how the ACA impacts Americans.
The College Board will be revising the SAT, and (!) include reading passages from our founding documents.
Every exam will include a reading passage from either one of the nation’s “founding documents,” such as the Declaration of Independence and the Bill of Rights, or from one of the important discussions of such texts, such as the Rev. Dr. Martin Luther King Jr.’s “Letter from a Birmingham Jail.”
I support this change, wholeheartedly! Let’s hope they can tell the Declaration and Constitution apart.
The President, by pure fiat, has decided that the health insurance plans that we all need to be healthy, are not really necessary until 2016, past the midterms, and he is on his way out of office. No, there is no authority for such an unprecedented failure to take care that the laws are faithfully executed.
So what is the next shoe to drop? We still have the full month of March to go. Maybe he will delay the individual mandate penalty another year? Whatever it takes to get it past the election, right.
I have to second Jonathan Turley here:
“I support national health care, but what the president is doing is effectively amending or negating the federal law to fit his preferred approach,” said Jonathan Turley, a law professor at George Washington University. “Democrats will rue the day if they remain silent in the face of this shift of power to the executive branch.”
When President Bush issued a few signing statements, the American Bar Association nearly prepared Articles of Impeachment. President Obama is running roughshod over the Constitution, and no one seems to care.
On Thursday, March 6, at 12:30 I will be giving a talk on Unprecedented at the Florida State University College of Law. Later that day, at 6:00 p.m. at the Governors Club (202 South Adams Street, Tallahassee), I will be giving an encore presentation to the Tallahassee Lawyers Chapter. Details are here. The challenge to Obamacare officially begin in Tallahassee, though the first suit was filed in Pensacola.
On Friday and Saturday, I will be at the Federalist Society Student Conference at the University of Florida.
I hope to see you there.
Update: This may be one of the best flyers I’ve seen!
There are reports that the Administration will delay Obamacare once more, to allow people to keep non-qualifying plans past the mid-term elections.
The Obama administration is set to announce another major delay in implementing the Affordable Care Act, easing election pressure on Democrats.
As early as this week, according to two sources, the White House will announce a new directive allowing insurers to continue offering health plans that do not meet ObamaCare’s minimum coverage requirements.
Prolonging the “keep your plan” fix will avoid another wave of health policy cancellations otherwise expected this fall.
The cancellations would have created a firestorm for Democratic candidates in the last, crucial weeks before Election Day.
The White House is intent on protecting its allies in the Senate, where Democrats face a battle to keep control of the chamber.
And the report suggests that the goal of this change is political (no surprises there).
“I don’t see how they could have a bunch of these announcements going out in September,” one consultant in the health insurance industry said. “Not when they’re trying to defend the Senate and keep their losses at a minimum in the House. This is not something to have out there right before the election.”
The White House and the Department of Health and Human Services on Monday both said they had no updates to announce.
I’m sure we’ll get a blog post from HHS on a late-Friday afternoon.
Here’s a discussion you don’t see often in statutory interpretation cases: what is the value of captions in a statute. RBG opines in Lawson v. FMR LLC:
Second, FMR argues that the statutory headings support the exclusion of contractor employees from §1514A’s protections. Although §1514A’s own heading is broad (“Civil action to protect against retaliation in fraud cases”), subsection (a) is captioned “Whistleblower Protec- tion for Employees of Publicly Traded Companies.” Simi- larly, the relevant public law section, §806 of Sarbanes- Oxley, is captioned “Protection for Employees of Publicly Traded Companies Who Provide Evidence of Fraud.” 116 Stat. 802. The Court of Appeals described the latter two headings as “explicit guides” limiting protection under §1514A to employees of public companies. 670 F. 3d, at 69.
This Court has placed less weight on captions. In Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519 (1947), we explained that where, as here, “the [statutory] text is complicated and prolific, headings and titles can do no more than indicate the provisions in a most general manner.” Id., at 528. The under-inclusiveness of the two headings relied on by the Court of Appeals is apparent. The provision indisputably extends protection to employ- ees of companies that file reports with the SEC pursuant to §15(d) of the 1934 Act, even when such companies are not “publicly traded.” And the activity protected under §1514A is not limited to “provid[ing] evidence of fraud”; it also includes reporting violations of SEC rules or regula- tions. §1514A(a)(1). As in Trainmen, the headings here are “but a short-hand reference to the general subject matter” of the provision, “not meant to take the place of the detailed provisions of the text.” 331 U. S., at 528. Section 1514A is attended by numerous indicators that the statute’s prohibitions govern the relationship between a contractor and its own employees; we do not read the headings to “undo or limit” those signals. Id., at 529.12
In Lawson v. FMR LLC Justice Scalia concurred in the judgment of Justice Ginsburg’s majority opinion, but only concurred “in principal.” Here is how the opinion begins:
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in principal part and concurring in the judgment.
I agree with the Court’s conclusion that 18 U.S.C. §1514A protects employees of private contractors from retaliation when they report covered forms of fraud. As the Court carefully demonstrates, that conclusion logically flows from §1514A’s text and broader context. I therefore join the Court’s opinion in principal part.
Scalia travels over the well-trodden ground about why legislative history is not reliable.
I do not endorse, however, the Court’s occasional excursions beyond the interpretative terra firma of text and context, into the swamps of legislative history. Reliance on legislative history rests upon several frail premises. First, and most important: That the statute means what Congress intended. It does not. Because we are a govern- ment of laws, not of men, and are governed by what Congress enacted rather than by what it intended, the sole object of the interpretative enterprise is to determine what a law says. Second: That there was a congressional “in- tent” apart from that reflected in the enacted text. On most issues of detail that come before this Court, I am confident that the majority of Senators and Representa- tives had no views whatever on how the issues should be resolved—indeed, were unaware of the issues entirely. Third: That the views expressed in a committee report or a floor statement represent those of all the Members of that House. Many of them almost certainly did not read the report or hear the statement, much less agree with it—not to mention the Members of the other House and the Presi- dent who signed the bill.
Next Scalia credits the majority with “poetic license” for citing favorable parts of the record, but ignorable unfavorable parts.
It cites parts of the legislative record that are consistent with its holding that §1514A covers employees of private contractors and subcontrac- tors, but it ignores other parts that unequivocally cut in the opposite direction. For example, the following remark by the Sarbanes-Oxley Act’s lead sponsor in the Senate: “[L]et me make very clear that [the Act] applies exclusively to public companies—that is, to companies registered with the Securities and Exchange Commission. It is not applicable to pr[i]v[at]e companies,[*] who make up the vast majority of companies across the country.” 148 Cong. Rec. 14440 (2002) (remarks of Sen. Sarbanes).
Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.
This question may become even more salient if ENDA (Employment Non-Discrimination Act) is enacted, which would prohibit discrimination based on sexual orientation. This law, which does not seem to affect RFRA, would seem to run headlong into the question of whether a defendant could raise a RFRA defense. [Update: ENDA only applies to private employment discrimination claims, and not public accommodations, so the photographer hypo is not a good example, but the remainder of the post works--ENDA does not create a carveout for RFRA].
For example, a photographer refuses to photograph a same-sex wedding, and is sued for a violation of ENDA, could assert that the enforcement of ENDA as applied to them violates their religious liberties as protected by RFRA. These are the facts of the Elane Photography case, where the New Mexico Supreme Court held that New Mexico’s RFEA does not apply to exemption for private causes of action. This case is currently pending before the Supreme Court.
But that was New Mexico RFRA. Does the Federal RFRA apply to private causes of action? This is an open question that has generated a circuit split.
The DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties, as noted in this amicus brief by the Becket Fund in the Elane Photography case:
In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (―RFRA‖).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).
However, as this note in the Virginia Law Review explains, there is a Circuit split about whether RFRA can be raised as a defense in a private cause of action.
The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.
Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:
Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more general- ly obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.
It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”
RFRA by its terms does not apply to suits between private parties.
Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against agovernment” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go forward” with any evidence. In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.
All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.
This could prove interesting if this issue comes before the Court.
Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.
Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.
And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).
RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000); Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).
It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.
Though Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.
I should stress–and this point was totally lost in the Arizona debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.
I see Hobby Lobby, Elane Photography, and other similar cases as addressing a key question about the scope of religious liberties, and how they interact with employment discrimination laws.
Cross-Posted at Law & Liberty.
This doesn’t make sense. The Supreme Court chamber is filled with reporters. The news of this outbreak hit the wires days before the audio was released. In fact, we have the audio on YouTube. Whether or not the audio wound its way onto the Supreme Court’s website, at this point, was immaterial. The cat was out of the bag.
But you don’t have to take my word for it. I asked Kai Newkirk, the protestor himself if censoring the audio would deter him, or his colleagues, from protesting at future sessions. Unequivocally, the answer is no. In fact–and I agree with Kai here–deleting the audio reinforces the Court’s transparency problems.
The U.S. Supreme Court on Monday acknowledged that a spectator’s outburst during an oral argument Feb. 26 was “redacted” from the audio posted on the court’s web site late last week.
“The comments were not transcribed by the court reporter, who is responsible for transcribing and creating an official record of oral arguments (justices’ questions, statements, and counsels’ comments),” court public information officer Kathy Arberg said in a statement. “The audio was redacted to reflect the official proceedings.” The court reporter is an employee of Alderson Reporting Service, Arberg added.
Gee, I was expecting a “No Comment” from Kathy Arberg. This is even worse. So if the court reporter only records the justices’ questions, statements, and counsels’ comments, why are “Laughters” recorded. Those are from the crowd. The audio recordings are never redacted to eliminate the laughters. In fact, entirely scholarly studies have been done to record them. I’m not buying this rationale. Sorry.
And as Jerry Goldman notes, many other interruptions have been recorded:
The court’s handling of the audio of the protest appears to diverge from past policy. Numerous oral argument tapes found on the Oyez Project website contain spectator outbursts, according to founder Jerry Goldman.
“Nonofficial statements during arguments have definitely been recorded,” Goldman said.
Pat Ward, a consulting audio engineer who has listened to thousands of official argument audiotapes going back to 1955, agreed. “Protests in the court are readily heard” on the tapes, Ward said. “You don’t need a mike in front of it to hear it.”
Thanks to Tony for the nice shout-out to Michelle Olsen and me:
Josh Blackman and Michelle Olsen, avid bloggers and tweeters about the court, reported on the deletion of the audio in recent days, with Blackman calling the court’s action “appalling.” New York Times editorial writer Jesse Wegman called it a “hasty re-clothing of the emperor.”
Though Kathy Arberg’s answer confirms what I suspected–that the Court only views the audio as a means to record the “official” proceedings, and nothing else. In no sense does the Court feel they have any obligation to record these arguments for ourselves and our posterity. They are just doing us a favor. I couldn’t agree more.
This is what all public proceedings are subject to open meeting and record preservation laws. They exist not for the government’s benefit alone, but for our benefit.