Oct 24, 2014

Video Talk at U.C. Davis Federalist Society Chapter – Gridlock and Executive Power

On Thursday, I gave a talk at the U.C. Davis Federalist Society Chapter about Gridlock and Executive Power. My good friend Jack Chin provided some thoughtful comments about the scope of executive discretion. For example, I was not aware that it is a federal offense to use the word “federal” in any business name–FedEx beware! In-and-out burgers were served. All enjoyed it! Here is the video.

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Oct 24, 2014

Romer in Reverse? Laws That Protect People From LGBT Discrimination Claims

In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.

In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.

But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.

“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.

Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.

Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.

There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!

I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake,  photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.

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Oct 23, 2014

Why did Larry Tribe become a ConLaw Professor?

In a series of video interviews with SCOTUSBlog, Harvard Law Professors offers these thoughts about why he chose constitutional law–with the presumption that he could have done anything else:

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

A disproportionate share of aspiring law professors want to teach constitutional law, for many of the reasons Tribe suggests. A very small number of them will ever be able to claim one of the few ConLaw lecterns–among the most coveted.

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Oct 23, 2014

Comparing Justices Sotomayor and Kagan

One of the themes that Joan Biskupic developed in her new book, Breaking In, was how the more senior Justices perceived their newest colleagues–Justices Sotomayor and Kagan. While Biskupic goes out of her way not to do a direct comparison, at various points throughout the book, we gain insights into how the “colleagues” view them.

Kagan, is a “shrewd tactician.” Sotomayor is a “solo operator.”

Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts— a judge who has the “potential to persuade” conservative colleagues. 16 Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

The Justices also say her desire to shake things up “reflected the core of her character.”

 As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

Nor was she “apt to influence colleagues.”

A substantive compromise eluded them, and it would not have fallen to Sotomayor to broker a deal. This was an area of the law she knew well, certainly . And she had strong views on racial and ethnic policy. But she had generally kept them quiet. And in terms of persuasive force, some judicial colleagues said later that although Sotomayor was clear in making her own opinions known, she was not apt to influence colleagues whose legal views differed from hers. The Second Circuit judges would not disclose all that went on behind the scenes. Speaking generally, Pooler described Sotomayor as a judge who steeped herself in the facts and the law of a case . She said she could sometimes hold tight to her position, wondering of colleagues, “Why can’t you see it?” Yet in these years as an appeals court judge, Sotomayor was cautious and not known for heated dissents or splitting off from her colleagues.

Kagan enamored her colleagues.

The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.

(I get the sense that RBG fawns over Elena, but not so much Sonia.)

And in contrast to Kagan, Sotomayor’s early performance in the Court surprised her colleagues.

In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom. Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”

But some Justices thought her demeanor during oral arguments may be counterproductive.

Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.

Yet, this question was “complicated by the dimensions of ethnicity and class.”

 Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court . The query naturally came up because of how Sotomayor stood out. Yet in these tradition- bound environs, where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer. It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were. The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.

I think there is a lot buried in this paragraph that Biskupic alludes to, but alas, we are left to speculate what the Justices really think about the penultimate Junior Justice.

Sotomayor resists any comparisons.

Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence. Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?” Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.

Again, Biskupic alleges to the fact that Sotomayor and Kagan are compared in ways that Roberts and Alito are not, due to, I presume, complexities about ethnicity and class. I suppose, as Justice Sotomayor is fond of reminding us, race matters.

Read the book. There is a lot of important nuance throughout.

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Oct 22, 2014

Events at U.C. Davis and Sacramento Federalist Society

On Thursday at 12:00 p.m., I will be speaking at the U.C. Davis Federalist Society Chapter on the constitutionality of the President’s Executive Powers. My good friend Jack Chin will be providing comments. On Friday, I will be addressing the Sacramento Federalist Society chapter for a lunchtime talk at the same time. The lunch will be at Lucca Restaurant & Bar. I hope to see you there!

This week, I will have hit all domestic time zones: Eastern (Philadelphia), Central (Houston), Mountain (Layover at PHX), and Pacific (Sacramento).

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Oct 22, 2014

Audio: ISIS, Immigration, and Obamacare: The Constitutional of President Obama’s Executive Actions

On Monday, October 20 I spoke to my friends at the Philadelphia Federalist Society Chapter about the constitutionality of the President’s executive actions, with a focus on ISIS, Immigration, and Obamacare. The audio is here:

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Oct 22, 2014

NYC Will Not Honor Federal Immigration Unless Person Convicted of “Violent or Serious Crime”

A few weeks ago I blogged about a Times reports that NYC will stop honoring any requests from immigration authorities, unless it is accompanied by a warrant from a federal judge. And then, they may decline to honor the request if the suspect has not been convicted of a “violent or serious crime.”

New York City would stop honoring detention requests issued by United States immigration authorities without a warrant from a federal judge, according to a proposal announced by the City Council on Thursday.

The bill also stipulates that even with a judge’s warrant, the Police and Correction Departments may honor a request for a hold, known as a detainer, only if the subject has been convicted of a “violent or serious crime.”

I understand that courts have held that local governments are not bound by civil detainers, but I was troubled that the City may in fact ignore warrants that do not involved “violent or serious crimes.” I held off on a final judgment until I saw a copy of the proposed bill.

That bill is now available online, and here is the relevant text:

2. Paragraph one of this subdivision shall not apply under any of the following circumstances:
(i) A]
may only honor a civil immigration detainer by holding a person beyond the time when such person would otherwise be released from the department’s custody, in addition to such reasonable time as is necessary to conduct the search specified in subparagraph (ii) of this paragraph, or by notifying federal immigration authorities of such person’s release, if:
i. federal immigration authorities present the department with a judicial warrant for the detention of the person who is the subject of such civil immigration detainer at the time such civil immigration detainer is presented; and
ii. a search, conducted at or about the time when such person would otherwise be released from the department’s custody, of state and federal databases, or any similar or successor databases, accessed through the New York state division of criminal justice services e-JusticeNY computer application, or any similar or successor computer application maintained by the city of New York or state of New York, indicates, or the department has been informed by a court or any other governmental entity, that such person:
A. has been convicted of a [covered] violent or serious crime[;],
[B. is a defendant in a pending covered criminal case;
C. has an outstanding criminal warrant in the state of New York or another jurisdiction in the United States;
D. is identified as a known gang member in the database of the national crime information center or any similar or successor database maintained by the United States;] or
[E] B. is identified as a possible match in the terrorist screening database.  
[(ii) The search conducted pursuant to subparagraph i of this paragraph indicates, or the department has been informed by federal immigration authorities, that such person:
A. has an outstanding warrant of removal issued pursuant to 8 C.F.R. 241.2; or
B. is or has previously been subject to a final order of removal pursuant to 8 C.F.R. 1241.1.]
Serious or violent crime is defined:
2. “Convicted of a [covered] violent or serious crime” shall mean a [final] judgment [of guilt] pursuant to section 1.20(15) of the criminal procedure law entered on a [covered] violent or serious crime, [including a conditional discharge pursuant to section 410.10 of the criminal procedure law, or a comparable provision of federal law or the law of another state] or a conviction under federal law or the law of another state that would constitute a “predicate felony conviction” pursuant to section 70.06(1)(b)(i) of the penal law provided that such conviction was for the equivalent of a violent or serious crime.
If I am reading this right (and please correct me if I’m not), when the City of New York receives a federal warrant to turn over a person on immigration charges, the City will not turn over the person unless the City determines that he has committed a “violent or serious crime” defined under New York law, or a “comparable provision of federal law or the law of another state,” or bears some other indicia of dangerousness. This is exactly how the Times described the bill.

How is this valid? If a federal judge or magistrate finds probably cause, and issues a warrant, how can New York City add an additional requirement, and determine that it will not turn the person over if the person has not committed a “violent or serious crime.” A misdemeanor, or non-serious crime will not suffice.

The New York law seeks to disregard certain warrants they deem not serious enough. This is where the policy runs afoul.

I welcome other thoughts on this. Also, I’m sure the Department of Justice will rush to stop this law–which frustrates federal policy–the way it did with Arizona’s SB 1070.

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Oct 22, 2014

Audio of my Panel at Forbes #Under30Summit: “The Lost Vote”

Forbes Magazine invited me to speak on a panel at their inaugural 30 under 30 Summit in Philadelphia. The topic of the Panel was “The Lost Vote,” with a focus on how millenials view politics today. Moderating the panel was McKay Coppins of Buzzfeed. I spoke alongside Nate Levine (Founder, OpenGov)and Nathaniel Loewentheil (Policy Advisor, The White House National Economic Council).

Forbes has a writeup here:

With midterm elections just weeks away, the state of young voters and whether they will come to the polls remains a question. The reason for that may not be election, but the recent troubles in Washington and the rift that has caused with millennials.

“We are looking at a generation of voters who are very passionate about many issues, very plugged into the news, plugged into tech, know what’s going on in the world but are very uninterested in identifying with or participating in partisan politics,” said McKay Coppins, senior political writer at Buzzfeed.

Coppins moderated a panel with Assistant Professor of Law at the South Texas College of Law Josh Blackman, Founder of OpenGov Nate Levine and Policy Advisor for The White House National Economic Council Nathaniel Loewentheil.

The panel was part of the Forbes Under 30 Summit and discussed why voters don’t feel a major draw to a political party. Half of young Americans don’t subscribe to the Democratic or Republican party, the highest percentage the Pew Research Center has measured in the 25 years it has been tracking disaffiliation.

 

At the crux of the argument surrounding the lack of partisanship was trust and transparency. Winning back the trust of some Americans will be a major hurdle for any candidate running in the upcoming elections.

“What the last six years have taught us is that there is a serious lack of trust,” Blackman said. “Everything from wiretapping to Edward Snowden to drone strikes, all the things we thought were transparent, were not.”

 

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I posted the audio here:

The primary point I tried to convey is that massive distrust in government is breeding libertarian sentiments. In the wake of the Snowden disclosures about NSA wiretapping, revelations that President Obama is using drone strikes to kill American Citizens, and the prosecution of reporters, there has been a paradigm shift. The very government that promised to be the most transparent administration in history is doing the precise opposite. McKay asked me if this means that Rand Paul is correct, and we are ushering in a libertarian moment. I don’t know if I’m willing to go that far, but I do think a lack of trust provides a fertile basis for libertarianism. I also explained that it is hard for any president to “resist the siren song of statism.” All Executives seem to steer into the shores.

One other area where Nate Lowentheil and I disagreed about was the role of technology to help income inequality. I cited Uber as an example of a disruptive technology that promotes economic mobility by dismantling occupational licensing. Now, people can pursue employment with Uber without having to jump through all the barriers to entry inherent with taxi cartels. I’ll let my friend Evan Baehr describe the exchange in tweet form:

And some more tweets.

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Oct 21, 2014

Breyer Invalidates San Francisco Law That Forces Landlords To Pay Tenants To Leave Property

Judge Charles Breyer that is, not his somewhat-more famous brother Justice Stephen Breyer. PLF has the story:

Today, U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.

Judge Breyer found an unconstitutional exaction:

The Court holds that the Ordinance effects an unconstitutional taking by conditioning property owners’ right to withdraw their property on a monetary exaction not sufficiently related to the impact of the withdrawal. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 5 512 U.S. 374, 395 (1994); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2599 (2013).

His brother dissented in Koontz, but was not yet on the Court for Nollan or Dolan.

In the event this case makes it to SCOTUS, Justice Breyer would recuse, as is his practice. Just what we need. Another 4-4 Takings case (after Stop the Beach and Justice Stevens’s recusal). Another case where Judge Reinhardt can set Supreme Court policy.

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Oct 21, 2014

Obama on Gridlock and the Courts

In Jeff Toobin’s interview with President Obama, we gained further insight into how the President views the relationship between gridlock and executive power.

Obama has stopped pretending that he has much respect for Congress. He had minimal tolerance for legislative horse-trading even when he was a legislator. Now, after six years of implacable Republican opposition to everything he has proposed, he sounds fed up.

“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.

This explanation is keeping with the President’s view that gridlock provides a justification, or “safety valve” to use the Solicitor General’s explanation during Noel Canning, to engage in more robust executive power. See my article Gridlock and Executive Power for more details.

Yet, the President’s theory departs from reality, because he firmly believes that Congress voting “no” on something is not taking action.

He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”

Congress voted no on the President’s immigration policy (albeit by one vote in the Senate). That is not a failure to provide guidance. They provided guidance. They said no. At which point the President can try something else. Instead, he worked around Congress with DACA, and whatever we will get after the election.

As to his argument that his executive actions politicizes the Courts, I think he needs to take stock of the fact that virtually every SCOTUS decision against him in this realm has been a 9-0 reversal, most recently Noel Canning. This is one of the rare areas where the President has united people who usually disagree–the 9 Justices of the Court!

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Oct 21, 2014

How Sonia Sotomayor Beat Diane Wood for Justice Souter’s Seat

Joan Biskupic’s great new book, Breaking In, provides some insights into how President Obama chose Sonia Sotomayor over Diane Wood for David Souter’s seat. At the beginning of the President’s term, the short list was three, with a serious Chicago focus–Diane Wood, Elena Kagan, and Sonia Sotomayor.

He was attracted to other candidates he knew from Chicago’s academic enclave of Hyde Park . His preliminary list, right after the 2008 election, was topped by three names: Diane Wood, a judge on the U.S. Court of Appeals for the Seventh Circuit who lectured at the University of Chicago; Cass Sunstein, a Harvard law professor who earlier had taught at the University of Chicago; and Elena Kagan , a former University of Chicago professor who had become dean of Harvard Law School. 8 Sotomayor’s inclusion on Obama’s expanded list arose from her education, experience , and connections, as well as the diversity she would offer.

Following the announcement of Souter’s retirement, the President was strongly leaning towards Diane Wood.

In the early weeks of the search, advisers said, Obama leaned toward Judge Wood, who had served on the Seventh Circuit since 1995.

Kagan seemed to be the runner-up.

She had no record as a jurist, so observers were not sure whether she had the liberal vigor of Wood. As a new U.S. solicitor general in the spring of 2009,

Sotomayor seemed to be in third place.

Sotomayor lacked the scholarly reputation of Kagan and Wood, but she had graduated from two of the most intellectually rigorous schools in the country. Sotomayor had a long, relatively uncontroversial judicial record; the Ricci decision stood out. She had served seven years as a trial judge and eleven years as an appellate judge. She did not have the direct personal link to the president that Wood and Kagan had, but she had other connections that proved helpful—her Second Circuit judicial colleagues, Manhattan district attorney Robert Morgenthau, and advocacy groups that had long been pushing for the first Hispanic justice.

Sotomayor’s selection raised a different interplay between diversity and qualifications:

The Hispanic Congressional Caucus, chaired by Democratic U.S. representative Nydia Velázquez, was persuading African Americans in Congress to throw their support behind Sotomayor. Velázquez, a Puerto Rican who grew up in the Bronx, lobbied for the promise that if a black candidate did not make Obama’s short list, the Congressional Black Caucus would back Sotomayor. For Obama, ethnicity cut both ways. He understood the value of diversity, but as the man who had not asserted his own racial identity in his campaign, he did not want to be seen as choosing someone simply because of her color and ethnic heritage. He wanted someone he could say had a superior intellect and judicial demeanor. Almost immediately, critics of Sotomayor were raising doubts.

But what sold Obama on Sotomayor, over Wood or Kagan, seems to have been the interview. Sotomayor nailed it.

When it was time for her meeting in the Oval Office, Sotomayor said she felt at ease and ready to represent herself to the utmost. She highlighted her regard for precedent and said she thought the way she challenged litigants on the bench was an effective way to probe a case. She said she could recall only one other interview during which she felt she was able to so effectively represent herself and her legal strengths— and that was with Moynihan, nearly two decades earlier, when the senator was interviewing potential district court candidates. A graduate of Columbia College and Harvard Law School himself, Obama was also impressed that she had the topflight credentials from Princeton and Yale, from Morgenthau’s office, and from her tenure as an appeals court judge on the Second Circuit. But it was her personal intensity and her continued connections to her community that really struck him. The Bronx Latina had not forgotten her roots. Knowing such struggles well, Obama admired how she had traversed worlds defined by race and ethnicity. He kept her in the Oval Office for an hour— a good sign, because Obama had a reputation for winding up conversations quickly if he felt they were not going anywhere. As they parted, Sotomayor told him that no matter what he decided, he had made her “the happiest person” simply by his consideration of her. 27 “Wow, she was great,” Obama told top aides.

Were it not for the interview, we very well may have had Justice Wood.

Some said later that if the interview had not gone so well, Obama might have chosen Diane Wood. Said Craig, “As far as I was concerned, watching him, it was between her and Diane Wood.”

FLOTUS also backed Sotomayor. Biden too.

Michelle Obama favored Sotomayor. The First Lady had attended Princeton University as an undergraduate and— almost a decade after Sotomayor— found refuge in the Third World Center. A lawyer, Michelle Obama believed Sotomayor was fully up to the job of a Supreme Court justice. 28 Vice President Biden interviewed Sotomayor by phone on Sunday , May 24. On Monday, Memorial Day, it all seemed settled. President Obama was ready to elevate Judge Sotomayor. But it took him several hours— nearly the whole day— to call her as he had planned. Some Obama advisers started to worry that he was having second thoughts. But it was his way to want to reflect on such a momentous choice.

Fascinating back-story.

 

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Oct 21, 2014

Solicitor General on Obamacare: Hurry Up and Wait

There is an odd asymmetry with respect to the Solicitor General’s position on Supreme Court review of Obamacare in 2011 and 2014. In 2011, you may recall, the 11th Circuit Court of Appeals invalidated the individual mandate. At the time, the 6th Circuit Court of Appeal had already upheld the law (remember that other significant Jeff Sutton case?). Decisions were still pending in the 4th and D.C. Circuits.

The S.G. had a choice. He could petition for rehearing en banc in the 11th Circuit. If the court took the case en banc, and vacated the opinion, the Circuit Split would disappear. Perhaps, the 11th Circuit would disagree with the panel decision. At which point (and we know in hindsight), all of the other courts of appeals would have upheld the law. Then, there was no reason for the Supreme Court ot even take the case.

The S.G., rather than trying to eliminate any circuit split, petitioned for certiorari, and brought this case to the Supreme Court right away. In its brief, the S.G. wrote that the Court must take the case right away–rather than let the lower courts handle it–and “put these challenges to rest.” What sense was there in waiting when such a significant piece of legislation was in legal doubt.

Now, three years later, the Solicitor General has taken a different position with respect to Obamacare. Much like in 2011, there was a Circuit Split. One Court of Appeals (the 4th) found that the IRS rule providing tax credits in states without exchanges was valid. Another Court of Appeals (the D.C. Circuit) found that the rule was invalid, and millions of dollars were illegally being spent. The S.G., faced with the option of again allowing the Supreme Court to “put these challenges to rest,” opposed certiorari, and asked the D.C. Circuit for rehearing en banc.

Why the difference? Well for one, as President Obama noted in the interview with Jeff Toobin, the D.C. Circuit is now stacked with a majority of judges appointed by Democratic Presidents, who, if Harry Reid is to be believed, will vote in favor of upholding the rule in Halbig. Because of this “realignment,” rehearing en banc was sought. But more fundamentally, the government is now content to allow this issue to linger on, even though millions of dollars in subsidies are potentially being spent in violation of the law. The hope is that by allowing people to rely on potentially illegal appropriations, it will be harder for a court to invalidate it. But, this very fact supports the Court getting involved sooner to prevent future illegal activity that generates irreparable harm.

The same sort of equities that favored the S.G. not seeking rehearing en banc from the 11th Circuit would counsel in favor of not seeking rehearing en banc in the D.C. Circuit. But this is not the route the S.G. chose.

Making this argument forcefully is the reply to the government’s brief in opposition to certiorari in King v. Burwell, the 4th Circuit case. The brief, filed by Jones Day, was signed my Mike Carvin, who was counsel of record for NFIB in NFIB v. Sebelius. As far as advocacy, this brief is superlative, and I encourage you to read it in its entirety.

I also want to draw attention to the lead associate who worked on the brief, my friend and colleague Yaakov Roth. While the WSJ saw fit to call it “Carvin’s ObamaCare Tour de Force,” Yaakov was instrumental in the formation of the arguments in response to the S.G.

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Oct 20, 2014

#SCOTUS Transcript Error: “Mr. Scalia” ?!?

There is a glaring error on p. 18 of the transcript in Kansas v. Nebraska. Rather than writing “Justice Scalia,” the Court Reporter wrote “Mr. Scalia.” And that mistake has been there for a full week! Earlier on the page, the Justice is accurately referred to as “Justice Scalia.”

scalia-transcript

H/T Jacob Berlove who notes that Chief Justice Rehnquist may not have been as forgiving for such an error.

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Oct 20, 2014

President Obama Does Not Want To Pull A Taft. Being A Justice Is Too “Monastic”

Towards the end of his interview with the President, Jeff Toobin asks whether he would like to repeat the role of President Taft and become Justice Obama.

As Marine One thundered overhead, about to land on the White House lawn and take Obama to a series of political fund-raisers, I asked him if, like William Howard Taft, he entertained thoughts of serving as a judge later in his career. “When I got out of law school, I chose not to clerk,” he said. “Partly because I was an older student, but partly because I don’t think I have the temperament to sit in a chamber and write opinions.” But he sounded tempted by the idea.

“I love the law, intellectually,” Obama went on. “I love nutting out these problems, wrestling with these arguments. I love teaching. I miss the classroom and engaging with students. But I think being a Justice is a little bit too monastic for me. Particularly after having spent six years and what will be eight years in this bubble, I think I need to get outside a little bit more.”

I have little faith in Justice Obama’s ability to interpret statutes and executive powers, based on some of the positions his administration has taken.

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Oct 20, 2014

Background on Sotomayor’s Concurring in Daimler AG v. Bauman

Joan Biskupic’s excellent new book, Breaking In, brings us deep insights into the most important constitutional law decisions of our era. But one bit that seems to have escaped the media was coverage over Justice Sotomayor’s concurring opinion in all-important-jurisdiction case Daimler AG v. Bauman. Forget affirmative action or the Fourth Amendment. We’re talking about RBG and Sotomayor dueling on personal jurisdiction!

Biskupic explains some of the background of the decision:

For weeks, Sotomayor had seen drafts of Ginsburg’s opinion as it circulated among the justices. She knew she was about to be a public target. But she would have the courage of her convictions— perhaps stubbornly, misguidedly— yet with confidence enough to be the one in an 8– 1 vote. A week before the Daimler opinion was handed down, in January 2014, Sotomayor told an audience of more than a thousand that to bolster her courage, she often thought about the worst thing that could happen when she undertook a challenging endeavor. She would conclude: “You know something … so what?”

In a footnote that takes up almost entire page in Daimler v. Bauman, Jusice Ginsburg singles out Justice Sotomayor for “selectively referring to the trial court record” in Perkins v.  Benguet Consol. Mining Co. (1952). Justice Sotomayor had the opportunity to pull back her dissent, in the face of withering criticism from 8 Justices, but she said, “so what.”

“So what.” That was more-or-less my reaction to reading Sotomayor’s dissent.

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Oct 20, 2014

Toobin: “In Light of this Realignment” DOJ Sought Rehearing En Banc, Rather than Cert, in Halbig

In Jeff Toobin’s latest article, he interviews President Obama, and offers a number of insights into how he has made a mark on the Judiciary. This bit about Halbig confirms what we all knew about his strategic appointments to the D.C. Circuit:

By a vote of two to one, the court held, in Halbig v. Burwell, that the insurance subsidies that allow millions of Americans to buy health insurance were contrary to the text of the law and thus were illegal. If such a decision had been made earlier in Obama’s tenure, lawyers for his Administration would have been left with a single, risky option: an appeal to the politically polarized, and usually conservative, Supreme Court.

This year, the lawyers had another choice. When President Obama took office, the full D.C. Circuit had six judges appointed by Republican Presidents, three named by Democrats, and two vacancies. By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books. Oral argument before the full court is now set for December.

The transformation of the D.C. Circuit has been replicated in federal courts around the country.

 

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Oct 19, 2014

Poorly Worded Poll on “Supreme Court Action” on Gay Marriage

ABC News ran a story with the headline “Most Americans Back Supreme Court on Gay Marriage — Including in the Affected States.” It begins:

Most Americans in a new ABC News/Washington Post poll support the recent U.S. Supreme Court action allowing gay marriages to go forward in several states – including a bare majority in the 11 states in which such marriages have begun in the past week and a half.

Overall, 56 percent of Americans support the court’s action, while 38 percent oppose it – exactly matching opinions on whether or not gay marriage should be legal, asked in an ABC/Post poll in June. These results reflect the public’s dramatic shift in support of gay marriage the past decade.

The story goes on to explain that a majority approved of the Court’s denial of certiorari, which lifted stays in a number of states to allow same-sex marriages to proceed.

But the poll itself offered no such clarification. Here is the question posed to the those poled:

On another subject, do you support or oppose the Supreme Court action this week that allows gay marriages to go forward in several more states? Do you feel that way strongly or somewhat?

Taking as a given that most people are rationally ignorant about the Supreme Court, and have no idea who the Justice are, or what they do, I find this poll unhelpful. When a poll asks about “Supreme Court action,” invariably the interviewees would think that there was some sort of decision on gay marriage. Instead, as we know, the Court issued no decision, and by declining review, allowed gay marriages to proceed in some of the affected states, but not in other states absent a petition for certiorari. I understand it would be very difficult to explain this complicated dynamic to non-experts, the question was poorly worded, as it suggested something that did not happen–a decision on gay marriage.

The flipside to this criticism, is that Americans don’t seem particularly bothered by a Supreme Court decision invalidating bans on same-sex marriage. This undercuts Justice Ginsburg’s oft-expressed concern about moving too quickly.

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Oct 19, 2014

Houston Modifies Subpoenas, Still Seeks Information About What Pastors Told Members

After the initial kerfuffle of the City of Houston’s subpoena request to Pastors asking for copies of their sermons about the Equal Rights Ordinance, Mayor Annise Parker has issued revised subpoenas. They are effectively the same, but eliminated the word “sermon.” In other words, they want the same information provided by any other means.

In a press release, the Mayor Explains why she is seeking this information:

““I support the right of the clergy to say whatever they want to say, even if I disagree with them.  This is not about what they may be preaching from the pulpit.  It is about proving that the petition gathering process organized by these pastors did not meet the requirements of the City Charter.  This information is critical to proving the city’s contention that the petition was ineligible for placement on the ballot and that the organizers knew this.”
In other words, the City is hoping to find something to suggest that whatever the Pastors told their members was not consistent with the City Charter’s requirements for collecting signatures.
Putting aside any First Amendment issues, and the fact that the new subpoenas do not ask for information about sermons, I’m still not sure what they are going to find. The signatures, and whether they are valid or not, speaks for themselves. What difference would it make if the Pastors said something incorrect about the process?

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Oct 19, 2014

New York Adds 34,000 People With Mental Health Conditions To No-Gun List Without Due Process

The relationship between guns and mental health is much trickier than those who support gun control laws would have you think. First, most people who have mental health conditions are not dangerous. Second, singling out people with mental health conditions stigmatizes them, and could further harm their mental health. Third, requiring doctors to disclose to the state anyone who may have mental health conditions, with the consequence of depriving them of a civil right, may chill the doctor-patient relationship, and inhibit people who are in need of help from talking to a professional.

New York’s Safe Act requires doctors to report to the state anyone who is “likely to engage in conduct that would result in serious harm to self or others.” Then, as the NY Times reports, the state “rubber stamps” those names and puts them on a no-gun list, where they remain for 5 years. Any existing permit is immediately revoked, and all firearms are seized. Only after the permit is revoked–likely with no notice–can someone go to court and petition a judge to remove the name. Already, over 40,000 people have been added to this list. This program exacerbates all three problems I mentioned above.

First, as the Times (not me) explains, most people who are diagnosed with mental health conditions that may harm others are not dangerous.

But the number of entries in the database highlights the difficulty of America’s complicated balancing act between public safety and the right to bear arms when it comes to people with mental health issues. “That seems extraordinarily high to me,” said Sam Tsemberis, a former director of New York City’s involuntary hospitalization program for homeless and dangerous people, now the chief executive of Pathways to Housing, which provides housing to the mentally ill. “Assumed dangerousness is a far cry from actual dangerousness.” …

Mental health professionals and advocates point out, however, the vast majority of people with mental illnesses are not violent. Accurately predicting whether someone will be violent, they said, is also a highly fraught process.

Second, singling out these people may frustrate their treatment:

Similar laws in other states have raised the ire of gun rights proponents, who worry that people who posed no threat at all would have their rights infringed. Mental health advocates have also argued that the laws unnecessarily stigmatized people with mental illnesses.

Third, making the doctors must-reporters means the doctor-patient relationship will suffer:

Several mental health experts said the data obtained by The Times renewed their fears that the reporting requirement would discourage patients from seeking help.

“The threshold for reporting is so low that it essentially advertises that psychiatrists are mandatory reporters for anybody who expresses any kind of dangerousness,” said Dr. Mark J. Russ, director of acute care psychiatry at Zucker Hillside Hospital in Glen Oaks, Queens, which has filed many reports to the state.

Finally, the process seems designed to maximize the number of people on the list, without any meaningful oversight.

Under the 2013 law, the reports prepared by doctors, psychologists, nurses and social workers are first sent to county officials. If they agree with the assessments, the officials then input the names into the state database. The information is retained for five years. If the authorities find a person in the database has a gun permit — necessary to purchase a handgun in New York — they are required to revoke the license and seize any guns. The people in the database are barred from obtaining a permit until their names are purged.

The way the law has played out, local officials said, frontline mental health workers feel compelled to routinely report mentally ill patients brought to an emergency room by the police or ambulances. County health officials are then supposed to vet each case before it is sent to Albany. But so many names are funneled to county health authorities through the system — about 500 per week statewide — that they have become, in effect, clerical workers, rubber-stamping the decisions, they said. From when the reporting requirement took effect on March 16, 2013 until Oct. 3, 41,427 reports have been made on people who have been flagged as potentially dangerous. Among these, 40,678 — all but a few hundred cases — were passed to Albany by county officials, according to the data obtained by The Times.

As of Saturday, the state updated the database to 42,900 reports, and said that roughly 34,500 of those were unique individuals. The rest of the names were duplicates because people had been reported more than once.

One such state officer admits that he is just the “middleman” and he doesn’t even read most of the applications.

Kenneth M. Glatt, commissioner of mental hygiene for Dutchess County, said that at first, he had carefully scrutinized every name sent to him through the Safe Act. But then he realized that he was just “a middleman,” and that it was unlikely he would ever meet or examine any of the patients. So he began simply checking off the online boxes, sometimes without even reviewing the narrative about a patient.

“Every so often I read one just to be sure,” Dr. Glatt, a psychologist, said. “I am not going to second guess. I don’t see the patient. I don’t know the patient.” He said it would be more efficient — and more honest — for therapists to report names directly to the Division of Criminal Justice Services, which checks them against gun permit applications.

This is hardly consistent with due process, as serious deprivations of civil rights are being made without eventt he care of checking the decision of a doctor to report. And remember, the individual receives no notice in advance.

I also don’t have much faith in the New York judiciary, if this example is indicative of how courts treat revoked permits:

Patients can challenge the revocations of their gun permits in court, and at least one has: a man in Otsego County, in central New York, who lost his gun license after being admitted to a hospital because he had threatened to harm himself, according to court papers. He also said he had accidentally exposed himself to a young girl and was racked with guilt. The county judge ruled the license could be revoked.

Supporters of this law will say something to the effect of, if a single live is saved, then this law is worth it. See the Brady Campaign:

Gun control supporters argue a wide net is appropriate, given the potentially dire consequences. Even if just one dangerous person had a gun taken away, “that’s a good thing,” said Brian Malte, senior national policy director of the Brady Campaign To Prevent Gun Violence.

I don’t accept this calculus. As I’ve documented elsewhere, the number of mass shootings by people with diagnosed mental health conditions is extremely small. The overwhelming majority of gun violence is by people who have never been diagnosed by mental health professionals. Extreme steps are being taken that can deprive thousands of people of their rights of due process, to say nothing of the Second Amendment, with the slim chance of possibly keeping a single gun out of the hands of someone who may be dangerous.

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Oct 19, 2014

Even for the Constitution, Everything is Bigger in Texas

In two recent Supreme Court cases, the sheer size of Texas has played into the constitutional calculus. First, with respect to Texas’s new abortion laws, the District Court, in finding an undue burden, noted that some people would have to drive up to 5 hours to visit a clinic. Second in her dissent from the Court’s denial of a stay in the Texas Voter ID case, Justice Ginsburg noted that some people in Texas would have to drive up to three hours to a government office in order to obtain a new ID. (Having to go to any DMV should be an undue burden in my eye. Forget the 5 hour drive. I’ve waited 3 hours once I got there! But I digress).

In this post, I won’t draw any conclusion of whether these laws are unconstitutional. Rather, I want to draw attention to a fact that most people are aware of, but maybe haven’t connected in the context of the state imposing burdens on people by making them travel further. Everything is bigger in Texas. The state is huge. In various parts of the state, you will have to drive very, very far to go anywhere.

Simply stating the number of hours one has to drive to get somewhere, in my mind, is not sufficient to illustrate how big of a burden someone suffers as a result of some law. Rather, that distance must be viewed in the context of where this place is. When someone chooses to live in a remote area of a humongous state, quite remote from many of the comforts readily available along the I-95 Amtrak Corridor, they generally accept the fact that they will have to drive far to go places they may need to go. I’ve done the math, and in various parts of Texas, the nearest Wal-Mart is a 2 hour drive. Now, I am not suggesting that visiting a Wal-Mart is on the same constitutional plane as the right to vote. Rather, I am trying to set a baseline for expectations of what would constitute a burden to people living in these remote areas, accustomed to traveling huge distances.

Let’s call this an “Everything’s Bigger in Texas” principle of undue burdens. An undue burden to travel 5 hours in a small state like New Hampshire or Maine cannot be considered along the same lines as 5 hours in a huge state like Texas. Any analysis that looks at distances has to consider how large the state, how densely populated an area is, and how far that area is from other essential services. The people are generally accustomed to driving longer distances.

Now there is an obvious rejoinder to that. The poorest people–who are most likely to be impacted by these laws–may not have the means to drive this far, nor take that much time out of the day for a 10-hour roundtrip. That is absolutely true, and is a factor that can be considered when assessing the burden imposed by requiring someone to travel to a further destination. But that rejoinder must be tempered by the general understanding that people of all socio-economic classes living in certain sparsely populated areas have to travel further, when having to go somewhere that is not available locally.

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