Aug 22, 2014

Greenhouse: The “Failed Commerce Clause attack” On Obamacare. Failed?

I recently contributed to a symposium issue in the Illinois Law Review, led by Professor David Hyman, asking why law professors “misunderestimated” the challenge to Obamacare. One of the threads several of the authors hit on, was how many law professors–mostly on the left– were shocked and stunned that the constitutional challenge to Obamacare went anywhere. To this day, many insist that the commerce clause argument was a joke, and had no validity. Although, most would at least acknowledge, at least begrudgingly, that a majority of the Supreme Court accepted that argument.

Not Linda Greenhouse.

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

The Commerce Clause challenge didn’t fail. It succeeded. Five Justices accepted it. And, the government was absolutely incapable of articulating a limiting principle on the commerce clause (though as I discuss in my book, this was a deliberate choice on the part of the SG).

I would usually not pounce on an error like this, but there is a special history with Greenhouse and the challenge to the ACA, which I discuss in Unprecedented, and my Illinois article. Throughout the entire debate, Greenhouse expressed a never-ceasing sense of shock and awe that this challenge even went anywhere. She even charged her successor at the Times, Adam Liptak with promoting a “false equivalency,” in covering the case.

Here is a segment from my article:

Linda Greenhouse, the Pulitzer Prize-winning reporter who covered the Supreme Court for the Times from 1978 to 2007, was not pleased with the coverage of the case in the paper of record. Greenhouse, who now writes in the Times opinion section and lectures at Yale Law School, appeared on a panel titled “Journalism and the Constitution outside the Courts,” along with Emily Bazelon (Slate), Charlie Savage (the New York Times), and Adam Liptak (the New York Times). Liptak was Greenhouse’s successor for the Supreme Court beat at the Times. Greenhouse asserted that Liptak and others at the Times, by giving the challengers so much attention, created a “false equivalency.” She claimed that Liptak validated Barnett and his frivolous ideas. Many oth- er professors in attendance shared this concern.

Liptak emphatically rejected Greenhouse’s “false equivalence” al- legation. At the conference, he quipped, “Do I sense some hostility?” Later, Liptak would tell me that he was “taken aback by what I per- ceived to be harsh and heartfelt criticism from people I respect at my alma mater” (Yale Law School). He added that at the conference “[t]here was something like a consensus that the press in general and perhaps The New York Times in particular had fallen down on the job by unduly dig- nifying the arguments in support of the Commerce Clause challenge to the Affordable Care Act.” Liptak, however, felt that he had “pre- sent[ed] both sides of the argument.” Courts are a “poor place to make the ‘false equivalency’ criticism,” Liptak explained. “The critique is weaker still when the arguments on one side were made by a majority of the states and had divided the lower courts.”

Legal arguments, however strong the political backing, only go anywhere because the argument has the power of persuasion. The uphill climb in NFIB was strong, as the challengers had to thread a needle between existing commerce clause precedents. But they did it!

In comparison, Halbig is much easier–the text is there. Now, there are lots of things beyond the text (purpose, structure, effects, etc.), which I won’t get into here, but this is an argument that should, and has been taken seriously.

On the point of Halbig, Greenhouse makes another misstatement in her column. She writes that all three judges on the 4th Circuit agreed that the statute, on its face, treats state exchanges in the same fashion as federal exchanges.

Section 1321(c) provides that if a state fails to establish an exchange, the secretary of Health and Human Services shall “establish and operate such Exchange within the state and the Secretary shall take such actions as are necessary to implement such other requirements.” The words “such Exchange,” the government argues, mean that the federal government stands in the state’s shoes when it complies with this instruction; for these purposes, the federal government is the state.

That interpretation “makes sense,” all three members of a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluded in King v. Burwell, a decision that, by an amazing coincidence of timing, was issued the same day, July 22, as the contrary D.C. Circuit opinion. Those three judges, Roger L. Gregory, Stephanie D. Thacker and Andre M. Davis, examined the statute as a whole, in light of its purpose, and at the end of the day found the federal-state issue to be ambiguous. That’s all they needed to find for the government to win the case.

This isn’t  exactly right. Judges Gregory and Thacker found the statute ambiguous, and resolved the issue on Chevron Step 2, where the government gets the utmost deference. Only Judge Davis found the statute was unambiguous, and resolved it in favor of the government on Chevron Step 1. For that matter, all three judges in Halbig on the D.C. Circuit did not find the statute worked for the government on its face. Judge Edwards also turned to Chevron Step 2. In this post, I count the votes. 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.


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Aug 22, 2014

RBG On Hobby Lobby: “Access to Birth Control” v. “Cost-Free Access to Birth Control”

One of the largest obfuscations in the Hobby Lobby debate, which RBG has contributed to, is that the majority opinion rejected the idea that “access to Birth Control” is a compelling interest. This is technically correct, but let’s be precise what “access” means. We aren’t talking here about reversing Griswold, and placing “legal” blocks in the place of access to birth control or other fundamental rights. Or, to put in terms of Casey, there is no “undue burden.”

Justice Alito’s opinion in Hobby Lobby made this point clearly.

Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v.Connecticut, 381 U. S. 479, 485-486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

What was at issue is not “access” to birth control, but “cost-free access.” That is employees won’t have to pay additional fees for it.

We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b)(2).

There is a world of legal difference between “access,” which wasn’t at issue, and “cost-free access,” which the court addressed.  The former constitutes a legal block, and the former is a financial block. Now, I’m sure you can argue that making women pay for birth control is unfair, and fewer women will use it if it is expensive–there are countless findings in the law to this effect. That’s all correct.

But many opponents of Hobby Lobby are deliberately loose with their language, and attempt to give the impression that the Hobby Lobby majority thought that legal access to birth control was not a compelling interest. This is wrong, and a deliberate obfsucation of the facts.

Leading that obscurity is Justice Ginsburg, in her answer to Marcia Coyle’s direct question:

NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?

GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.

The use of the passive voice, “making sure women have access,” renders unclear who is preventing them from having it in the first place–the government, or the employer. The answer is neither. The case concerned “cost-free access.” I would generally be willing to give the Justice the benefit of the doubt, but her previous comments to Katie Couric make clear that she is feeding into the War on Women meme as the Notorious RBG, and displaying massive amounts of hubris, in her efforts to impact popular opinion outside the Court.

It is to be expected that pundits make such opaque generalizations, but I would expect more from a Justice

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Aug 22, 2014

“Report from Nuremberg: The International War Crimes Trial”

I recently finished listening to “Report from Nuremberg: The International War Crimes Trial.” This audiobook re-enacts the transcribed radio broadcasts on the Armed Forces Network during the Nuremberg Trials in 1945-46. Rather than reading a history of Nuremberg, this recording recreates the contemporaneous daily broadcasts from the Palace of Justice in Nuremberg.

There are some fascinating insights into how the trial proceeded, how the Nazis behaved out of court, and what the service members thought about the Nazis (they should be taken out back and shot).

As a special treat, the host does an interview with “Mr. Justice Jackson.” Jackson does a wonderful job explaining why the rule of law demands a trial for these war criminals, and why this should be a sterling example to the world of how democracy works. Although, the host of the broadcast was not a fan of Justice Jackson’s cross-examination of Hermann Goring, the leader of the Nazi Party. He later said that Jackson lacked enough knowledge about European history to corner Goring. The British prosecutor apparently did much better.

It’s about 6 hours long, and is well worth a listen.

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Aug 21, 2014

GAO: Bergdahl Swap Violated “Clear and Unambiguous Law” and violated “Antideficiency Act”

The GAO has released a new report find that the DOD’s decision to release the detainees from Guantanamo without complying with the statute violated a “clear and unambiguous law” and violated the “Antideficiency Act.”

In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. Section 8111 prohibits the use of “funds appropriated or otherwise made available” in the Department of Defense Appropriations Act, 2014, to transfer any individual detained at Guantanamo Bay to the custody or control of a foreign entity “except in accordance with section 1035 of the [FY 2014 NDAA].” Pub. L. No. 113‑76, § 8011. Section 1035 of the FY 2014 NDAA, in turn, requires the Secretary of Defense to notify certain congressional committees at least 30 days in advance of such a transfer, among other things. Pub. L. No. 113‑66, § 1035. Because DOD did not provide written notice to the relevant congressional committees until May 31, 2014, the same day as the transfer, DOD violated section 8111. DOD July 31 E-mail.

But in any event, the President did not rely on his Article II powers. The administration claimed that Congress would not have wanted it to apply this way under these “circumstances.”

Initially, Secretary of Defense Chuck Hagel justified the release on the President’s inherent Article II powers, as a rationale for his failure to comply with the law: “we believe that the president of the United States is commander in chief, [and] has the power and authority to make the decision that he did under Article II of the Constitution.” White House National Security Adviser Susan Rice—a Sunday-morning show stalwart—similarly alluded to the President’s inherent powers during an interview on This Week, “We had reason to be concerned that this was an urgent and an acute situation, that his life could have been at risk. We did not have 30 days to wait. And had we waited and lost him, I don’t think anybody would have forgiven the United States government.”

Shortly thereafter, the Administration attempted to walk back that position, and the National Security Council released a more refined statement, not based on inherent powers: the “Administration determined that the notification requirement should be construed not to apply to this unique set of circumstances.” Further, “Because such interference would significantly alter the balance between Congress and the President, and could even raise constitutional concerns, we believe it is fair to conclude that Congress did not intend that the Administration would be barred from taking the action it did in these circumstances.” The White House Press Secretary likewise explained, “The administration determined that given the unique and exigent circumstances, such a transfer should go forward notwithstanding the notice requirement of the NDAA, because of the circumstances.”

This argument borders on absurd because virtually all members Congress–Republican and Democrat–specifically opposed this very trade. As I explain in Gridlock and Executive Power, “here lies the fatal flaw of the “congressional intransigence” theory of Article II—it manifests delusions of executive grandeur and machinations of congressional support, when neither exists.”

Yet, the argument provided by the DOD seems to offer a slightly different answer, that seems closer to inherent Article II powers:

We asked DOD for its legal views on the application of section 8111 to the transfer at issue in this opinion. DOD responded that section 8111 prohibits the use of appropriations “only if the transfer is unlawful under section 1035” and that the “transfer was lawful under section 1035, regardless of whether the Administration complied with any notice requirement imposed by section 1035(d).” DOD July 31 E‑mail, Attachment 1, at 1–2. DOD asserts that a transfer is lawful if the Secretary of Defense makes the requisite determinations under section 1035, and that “section 1035 does not impose any other preconditions on the Secretary’s authority under section 1035(b) to make transfers.” Id., Attachment 1, at 1. While DOD acknowledged the section 1035(d) 30-day advance notice requirement, DOD states that section 1035 does not provide that “a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.” Id.

GAO flatly rejects this obfuscation:

In our view, DOD has dismissed the significance of the express language enacted in section 8111. Section 8111 prohibits DOD from using appropriated funds to carry out a transfer “except in accordance with section 1035 of the National Defense Authorization Act for Fiscal Year 2014.” Pub. L. No. 113-76, § 8111. Section 8111 makes no distinction regarding the weight of various subsections under section 1035. The notification requirement in section 1035(d) thus stands on equal footing with the determination requirements in section 1035(a) or section 1035(b). Section 8111 means, then, that DOD must comply with all provisions in section 1035, including the notification requirement, before obligating appropriated funds to carry out a transfer. To read section 8111 otherwise would render the notification requirement meaningless.

DOD also falls back on Article II, but not the Commander in Chief power.

Alternatively, DOD asserts that section 8111 is unconstitutional as applied to this transfer.[5] DOD July 31 E-mail, Attachment 1, at 2–3. DOD states that providing notice “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.” Id., Attachment 1, at 2. DOD asserts that these provisions violate the “constitutionally-mandated separation of powers.” Id., Attachment 1, at 3. According to DOD, section 8111 improperly “attempt[s] to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose indirectly.” Id.

This is similar to the arguments justified for the Iraq strikes.

The GAO report offers no thoughts on the constitutional argument.


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Aug 21, 2014

Administrative Office: Courts Lacks Authority To Assign Panel Attorneys to Clemency Project

The Administrative Office of the United States Courts–whether speaking for all judges, or not–has determined that the Criminal Justice Act does not provide statutory authority for the courts to appoint federal public defenders or CJA panel attorneys to assist with seeking clemency.  You can find a memorandum from Judge Bates, along with a legal opinion here.

Here is an overview of the analysis:

On April 13, 2014, the Deputy Attorney General announced a new clemency initiative (“Clemency Project 2014”) for certain federal inmates currently serving lengthy sentences. Clemency is a function and responsibility solely of the Executive Branch, but this initiative may affect the courts, the United States probation offices, and the federal defenders. The Department of Justice (DOJ) has requested that federal defenders be detailed to the Office of the Pardon Attorney to assist in screening clemency applications, and some inmates have requested assistance of counsel. Questions have been raised, however, about the authority to appoint federal defenders or panel attorneys to represent clemency applicants under the Criminal Justice Act (CJA), 18 U.S.C. § 3006A.

In essence, the General Counsel of the AO has concluded that there is no authority under the CJA or any other provision of law for courts to appoint federal defenders or CJA panel attorneys to represent non-capital clemency applicants under the new Executive Branch initiative. In light of that conclusion, we must advise that CJA panel attorneys are not authorized to be paid for non-capital clemency representations. The General Counsel did conclude, however, that agreements may be entered with DOJ to detail federal defenders to the Office of the Pardon Attorney to assist with screening clemency applications, so long as it is on a fully-reimbursed basis.

The General Counsel’s opinion further explains that: “the lack of court authority to appoint the FPDO to represent a clemency applicant would not preclude the FPDO from screening its client files to identify individuals who may satisfy the criteria established under this initiative or from reviewing files to assist another attorney representing a clemency applicant.” Involvement by federal defenders, to the extent consistent with the law and the priorities of each office, may have practical benefits to the courts, probation offices, and clemency applicants. Defenders customarily assist clients, even after sentencing, with inquiries related to incarceration, and may be well-equipped to review presentence reports and other information to determine whether applicants meet the criteria established by the DOJ for clemency. The opinion also acknowledges that “courts have discretionary authority to appoint FPDOs to assist in various administrative tasks for the general benefit of their office, the courts, or the judiciary,” but concludes that there is no authority to appoint federal defenders or panel attorneys to represent individual non-capital clemency applicants.

Here is the key portion of the analysis:

Since the Deputy Attorney General’s address to the New York State Bar Association and the formation of Clemency Project 2014, several U.S. district courts have issued orders (Standing, Administrative, and case specific) pursuant to 18 U.S.C. § 3006A(a)(1) and (c) authorizing FPDOs to represent individuals previously determined to be entitled to appointed counsel in seeking clemency under this initiative.9 Some of these orders cite § 3006A(a)(1) and (c) as authority to appoint counsel “in the interest of justice” and/or as “ancillary” matters, respectively, under the CJA. Others cite the CJA more generally, and still others cite no authority at all.

As discussed above, the power to grant clemency under federal law is a purely executive function; only the President has that power. See Harbison v. Bell, 556 U.S. 180, 186-87 (2009). Moreover, the exercise of that power is not adversarial in nature and does not involve a proceeding at all, judicial or otherwise. Rather, clemency “is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” Herrera v. Collins, 506 U.S. 390, 412 (1993). There is no Sixth Amendment right to counsel for purposes of seeking executive clemency and no statutory right, except in capital cases. Our review leads to the conclusion that there is no authority under the CJA or other law to appoint counsel in non-capital clemency proceedings.

Congress has explicitly authorized CJA counsel appointed in capital cases to file clemency petitions on behalf of financially-eligible defendants. “Each attorney so appointed shall represent the defendant through every subsequent stage of available judicial proceedings . . . , and all available post-conviction process, together with stays of execution and other appropriate motions and procedures, and shall also represent the defendant in such competency proceedings and proceedings for executive or other clemency as may be available to the defendant.” 10 18 U.S.C. § 3599(e). But Congress has not seen fit to provide this authorization in non-capital CJA appointments, whether in the interest of justice or otherwise, although it clearly could have done so if it had been so inclined. See 18 U.S.C. § 3006A(a). “Congress’ decision to furnish counsel for clemency proceedings [under § 3599(e)] demonstrates that it, too, recognized the importance of such process to death-sentenced prisoners[.]” Harbison v. Bell, 556 U.S. at 193.

Though this “memorandum” seems awfully close to an advisory opinion. The Judge seems to endorse a legal opinion finding the courts lacks statutory authority to take certain action. But, there may be no other way for this issue to be resolved, as this is a case for judges alone to consider in the administration of their courts.


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Aug 21, 2014

Government by Blog Post: Administration Extends No Child Left Behind Exemptions

Seeing that No Child Left Behind doesn’t fit with the Administration’s policies, the Department of Education has extended blanket waivers to states, exempting them from conditions of the law.

Secretary of Education Arne Duncan announced on Thursday that states could delay the use of test results in teacher-performance ratings by another year, an acknowledgment, in effect, of the enormous pressures mounting on the nation’s teachers because of new academic standards and more rigorous standardized testing.

Sounding like some of his fiercest critics, Mr. Duncan wrote in a blog post, “I believe testing issues are sucking the oxygen out of the room in a lot of schools,” and said that teachers needed time to adapt to new standards and tests that emphasize more than simply filling in bubbled answers to multiple-choice questions.

Over the past four years, close to 40 states have adopted laws that tie teacher evaluations in part to the performance of their students on standardized tests. Many districts have said they will use these performance reviews to decide how teachers are granted tenure, promoted or fired. These laws were adopted in response to conditions set by the Department of Education in the waivers it granted from the No Child Left Behind law that governs what states must do to receive federal education dollars. The test-based teacher evaluations were also included as conditions of Race to the Top grants that have been given by the Obama administration.

Last year Mr. Duncan said states could delay using teacher evaluations to make high-stakes personnel decisions. Thursday’s announcement allows states to delay using test results at all in performance reviews.

And, of course, this new law by the Administration was announced in a blog post by the Secretary of the Education (the Education Blog is much nicer than the HHS blog)!

That’s why we will be taking action in the coming weeks that give states more flexibility in key areas that teachers have said are causing worry.

States will have the opportunity to request a delay in when test results matter for teacher evaluation during this transition. As we always have, we’ll work with them in a spirit of flexibility to develop a plan that works, but typically I’d expect this to mean that states that request this delay will push back by one year (to 2015-16) the time when student growth measures based on new state assessments become part of their evaluation systems – and we will work with states seeking other areas of flexibility as well. We want to make sure that they are still sharing growth data with their teachers, and still moving forward on the other critical pieces of evaluation systems that provide useful feedback to educators.

I haven’t found the regulation yet, but it doesn’t matter, because there is a blog post. Because won’t someone please think of the children!

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Aug 21, 2014

Limiting Executive Overreach Through The Senate’s Power of the Purse

One of the arguments offered in favor of the House’s lawsuit against the Obama Administration’s executive overreach, is that it is without any political means to stop the President. I think this argument has some salience with respect to the President’s willingness to selectively decline to enforce the law, but the Republican’s proposed strategy, if the GOP takes the Senate, offers an alternate approach:

“We’re going to pass spending bills, and they’re going to have a lot of restrictions on the activities of the bureaucracy,” McConnell said in an interview aboard his campaign bus traveling through Western Kentucky coal country. “That’s something he won’t like, but that will be done. I guarantee it.”

In a lengthy interview with Politico, Senate Minority Leader Mitch McConnell suggested that the Senate will attach riders to spending bills to cabin the Executive’s activities. For example, limiting regulations that the EPA can promulgate:

A “good example,” McConnell said, is adding restrictions to regulations from the Environmental Protection Agency. Adding riders to spending bills would change the “behavior of the bureaucracy, which I think has been the single biggest reason this recovery has been so tepid,” he said.

“He could,” McConnell said calmly when asked if such a tactic would prompt Obama to veto must-pass appropriations bills. “Yeah, he could.”

It’s unclear if McConnell could pass bigger limitations–such as restricting the President’s ability to rewrite Obamacare. The Congress could even pass a law that would *force* the President to implement the employer’s mandate, which is the gravaman of the House lawsuit.

Such an approach casts some doubt on the House’s litigation arguments.

This hardball would force the President to veto the bill, which may result in a shutdown.

But asked about the potential that his approach could spark another shutdown, McConnell said it would be up to the president to decide whether to veto spending bills that would keep the government open.

Obama “needs to be challenged, and the best way to do that is through the funding process,” McConnell said. “He would have to make a decision on a given bill, whether there’s more in it that he likes than dislikes.”

This would be a politically risky move, but a political move nonetheless. Of course, even if the President signs the law, he can just issue a signing statement, saying he won’t follow that part of the law.

McConnell pours a bucket of cold water on ay thoughts of repealing Obamacare through the reconciliation process, something that he considered in 2012.

“That’s how we got Obamacare; we’ll see if we can undo any of it that way,” Paul said in an interview. “It makes more sense to try to do it with 60, but I think you do what you have to do.”

But McConnell was coy on whether he’d pursue this tactic. And even if he tried to gut Obamacare, he knows full well he’d lack the support to override a presidential veto.

“We’ll see,” McConnell said when asked about reconciliation.

Stay tuned.


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Aug 20, 2014

Tom Goldstein Files Amicus Brief On Behalf of His Firm In Support of Neither Party

Tony Mauro reports that Tom Goldstein filed a brief on behalf of his firm, Goldstein & Russell, in support of neither party, supporting certiorari. There’s no party. Just Tom.

A little-noticed brief in a case before the U.S. Supreme Court this fall may launch a new genre of friend-of-the-court filings: written by a law firm on behalf of no client—not even law professors—and in support of neither side.

Or it might flop, its author Thomas Goldstein of Goldstein Russell readily acknowledges. “I’ve never heard of it being done before—the court is used to lawyers having clients,” he said in an interview. “But that has never deterred me from doing something before.”

Indeed Goldstein has shaken up the staid Supreme Court bar more than once—cold-calling losing lawyers in appeals court cases to drum up business in the 1990s, launching Supreme Court clinics at law schools, and in 2002, creating SCOTUSblog, a resource for high court practitioners and law junkies.

Goldstein says his brief in M&G Polymers USA v. Tackett may be the leading edge of an effort by the bar to assist the Supreme Court in new ways, not necessarily as advocates for a particular party.

Remarkably, Tom notes that the amici filing on behalf of clients are not “true amici,” but he is!

“The court is likely to be very concerned about coming up with a workable rule for everyone, not just the parties before them,” Goldstein said. As for amici, sometimes “they are not true amici. They have an ax to grind, a dog in the fight.” In his brief, Goldstein told the justices, “This is the rare true ‘amicus’ brief.”

And, Tom fancies that in certain cases, the Court will call for the views of an expert, similar to the CVSG when the United States has an interest. CVTG perhaps–Call for the views of Tom Goldstein.

Looking ahead, Goldstein said he hopes his brief could lead to something akin to the court’s so-called “CVSG” relationship with the U.S. solicitor general.

In cases where the federal government is not a party but might have some relevant things to say, the court often calls for the views of the solicitor general—CVSG for short—in the form of briefs that detail federal practices or other relevant information.
Goldstein posited that in select cases, the court could ask disinterested lawyers—or perhaps an organized Supreme Court bar group—to provide similar briefs when the government is not involved.

Here is the “Interest of the Amicus” statement from the brief:

This is the rare true “amicus” brief. It is respectfully submitted as a friend of the Court, with no agenda or desire to direct the outcome of the case. The only purpose of the brief is to provide the Court with factual information that may be useful in guiding its decision. Amicus is a law firm that practices before the Court. The firm has no interest in the outcome of the case. Nor is it aware that any of its clients has an interest in the outcome of the case. The genesis of the brief is a desire for members of the bar to provide the Court with assistance in deciding cases correctly. In particular, while many cases before the Court on the merits involve broad and general questions of law, or generate large numbers of thorough amicus submissions, others do not. A material number of cases instead involve important questions that arise in technical fields, yet generate few amicus briefs that elaborate on the legal issue and the factual context in which that issue regularly arises. In those cases, the bar has the ability to use its resources to provide the Court with that information. This appears to be such a case.

Tom explains that he was waiting for a case like this for years:

Goldstein, who said he has been looking for a case like M&G for years, thought it would be helpful to write an amicus brief that would give the court data that parties or other amici might not provide. Namely, a survey of collective bargaining agreements that tallies how many contain different provisions that lower courts have looked for in determining whether retiree benefits vest.
Even though he had no client in the case, Goldstein surveyed 100 collective bargaining agreements and told the court the results in his brief. As court rules provide, he sought and got permission from the parties to file the brief, but has received no feedback from them.

Unsurprisingly, Tony was unable to find any lawyer willing to comment on this brief.

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Aug 19, 2014

George Takei: “The eyes of the world and history are upon you, Judge Sutton”

On his popular and whimsical Facebook page, George Takei offers these admonitions to Judge Sutton, who is currently considering the constitutionality of bans on same-sex marriage in Michigan, Kentucky, Ohio, and Tennessee.

One federal judge on the 6th Circuit may hold the key to the first loss of a marriage equality case since the Supreme Court’s Windsor case.

Remember this name: Jeffrey Stewart Sutton. The eyes of the world and history are upon you, Judge Sutton.

If Sutton (the swing vote on the three-judge panel) decides to uphold same-sex marriage bans in Michigan, Kentucky, Ohio and Tennessee, he will go against EVERY other court decision rendered since Windsor and set-up a show down in the U.S. Supreme Court, where 9 people (really, 5) will decide the rights of millions. During oral argument, Sutton seemed to indicate that one basis for upholding the bans in his belief that, in a democracy, the majority should be allowed to decide who is permitted to marry.

That was the law when I was young, when the “majority” decided racial minorities could not marry whites. It took a Supreme Court decision to overturn those laws–in Loving v. Virginia (1967). But this is about rights–guarantees of equality of treatment that cannot simply be voted away through plebiscite. Our courts, after all, are the last bastion of protection against a tyranny of the majority. That is one the very reasons why we have them.

So keep a close watch on the 6th Circuit, friends, and on the reasoning of one judge, who may believe he knows better than the dozens of fair minded jurists from across the political spectrum who have already examined and weighed in on this matter.


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Aug 19, 2014

The Appointment of the Special Prosecutor in the Perry Case

One issue that seems to have been lost in the media, is how the special prosecutor was appointed to investigate Governor Perry. I had thought–mistakenly–that the same drunk District Attorney who led the Public Integrity Unit also started the investigation. This isn’t right.
Shortly after Perry made the veto threat, Texans for Public Justice filed a complaint in Travis County.  As I understand it, all of the prosecutors in Travis County–who work under District Attorney Lehmberg– recused themselves from handling the complaint. At this point–for reasons I don’t completely follow–the administrative judge of Willamson Count appointed Bexar County Senior Judge Robert Richardson to appoint a special prosecutor. I couldn’t find any good explanation for this sequence of events–its possible no one wanted. I suspect Travis County Judges were not eligible to appoint a special prosecutor, but I’m not sure. If you know, please fill me in.Anyway, this roughly follows the Texas Code of Criminal Procedure, which provides for appointment of Attorneys pro tem (special prosecutors):

Art. 2.07. ATTORNEY PRO TEM. (a) Whenever an attorney for the state is disqualified to act in any case or proceeding, is absent from the county or district, or is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the state, the judge of the court in which he represents the state may appoint any competent attorney to perform the duties of the office during the absence or disqualification of the attorney for the state.
So if I follow, the indictment was triggered, not by the DUI DA, but because of the complaint filed by the Texans for Public Justice. At this point, it doesn’t seem the Travis DA had anything to do with the selection of the prosecutor. This seems to be a point lost in the media, that I didn’t realize till now. There is more coverage here, here, and here.
The question I don’t know–and if anyone knows this please drop me a line–is whether the special prosecutor was obligated by his authority to seek an indictment in the allegations of wrongdoing, or was this simply a matter of prosecutorial discretion. I lean towards the latter, but I’m not sure. Just because a complaint is filed does not mean a prosecutor needs to seek an indictment.

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Aug 19, 2014

First Amendment Challenge To Harris County Sheriff’s Social Media Policy That Punishes Employee Speech

The Houston Press reports that a Deputy in the Harris County Sheriff’s Department has filed suit challenging the Office’s social media policy, which bans employees from posting anything on social media that may “cause undue embarrassment or damage the reputation of and/or erode the public’s confidence” in the sheriff’s office. Further, “speech containing crude, blasphemy (sic), negative, or untrue claims about the HCSO and/or any HCSO personnel is forbidden and therefore will be grounds for disciplinary action.” The policy also provides that an employee’s actions “must never bring the HCSO into disrepute, nor should conduct be detrimental to the HCSO’s efficient operation.” The policy also provides that employees are “free to express themselves as private citizens on social media to the degree that their speech does not impair the working relationships of the HCSO . . . where such speech . . . negatively affect[s] the public perception of the HCSO.”

You can view the complaint, and the policy here.

Under Garcetti v. Ceballos, employees speech may be limited to communications made pursuant to the official’s duties. The Court reaffirmed this recently in Lane v. Franks. But here, the policy seems to be reaching purely private speech, done outside the workplace, that may have nothing to do with the employee’s duties. The policy tries to work around it, and seems to say anything said about the Office would be part of official duties–but this isn’t right:

HCSO personnel are cautioned that speech on or off duty, made pursuant to their official duties . . . is not protected speech under the First Amendment and may for [sic] the basis of discipline if deemed detrimental to the HCSO. Bureau personnel shall assume that their speech and related activity on social media sites will reflect upon their Bureau and on the HCSO.

Further, under Pickering v. Board of Education, public employees have the First Amendment right to speak critically about their employers, on matters of public importance, without fear of retaliation. In that case, a teacher wrote a letter to the newspaper criticizing the Board of Education. The Court upheld her right to do so, so long as the remarks weren’t knowingly or recklessly false.

The language in the policy seems really, really broad–especially “crude, blasphemy (sic), negative.” What does that even mean? This policy is extremely problematic.

From a policy perspective, shouldn’t we encourage employees revealing *accurate* information about police actions that would “damage the reputation of and/or erode the public’s confidence.” That means the police messed up, and the public should know about it.

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Aug 19, 2014

Another Unprepared Dream

At least once a semester I have the dream where I show up for class, totally unprepared to teach it. Last night I had a different version. I show up at a school where I am to give a Federalist Society talk (I am actually speaking there this semester). I start talking to the Chapter President, and say something like, “I’m really excited to talk about Hobby Lobby” (one of my topics this year). The President responds, I thought you were talking about Noel Canning and Executive Power.

Oh crap. I think. It was 11:40, and I had 20 minutes before the talk started, and was more-or-less unprepared to talk about Noel Canning. So I try to play it cool, and say, oh yeah, I was kidding. I mean’t Noel Canning. Then I ask for a few minutes alone to go prepare.

I go into this classroom, and start putting together a rough sketch of a Noel Canning talk, based on my Gridlock paper. I consider talking about NRLB, Obamacare modifications, DACA, and then decided against going into foreign affairs topics like Bergdahl and Libya. Yes, my dreams are this detailed–I was organizing an outline of talking points to guide me through the lecture.

But then, the Professor who would be commenting my talk (not the actual professor at that school) comes into the room and starts to chit chat. I look at the clock, and I have maybe 15 minutes left. I can’t think of a way to get rid of her, so I can continue preparing my lecture.

Then a student comes into the classroom to invite me to dinner. I got five minutes left, and I’m in trouble.

I don’t remember actually giving the talk. Hopefully I got a good turnout :)


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Aug 18, 2014

Opposition to En Banc Review in Halbig

The lawyers at Jones Day have filed a brief opposing en banc review in Halbig. Here is their introduction, which states the issue concisely–the Supreme Court will provide the final resolution, and since cert has already been filed from the 4th Circuit,  there’s no point delaying that resolution by rehearing it en banc.

There is no doubt that this case is of great national importance. Not due to the legal principles at stake—this is a straightforward statutory construction case under well-established principles—but rather due to its policy implications for ongoing implementation of the Affordable Care Act (“ACA”). Those implications, however, are precisely why rehearing would not be appropriate here, as Judges of this Court have recognized in many analogous cases. Continued uncertainty over the validity of the IRS Rule at issue is simply not tenable, given its enormous consequences for millions of Americans, hundreds of thousands of businesses, dozens of states, and billions of dollars in monthly federal spending. Only the Supreme Court can lift that doubt by giving a definitive answer to the challenge raised here (and in other suits). The Supreme Court has already been asked to do so, in a petition from a conflicting Fourth Circuit decision that would allow the matter to be resolved during the Court’s upcoming Term. En banc review, by contrast, would cause delay without providing any certainty—regardless of how the en banc court ultimately rules. Thus, for the same reasons that this Court expedited review of this case, the en banc petition should be denied and this matter should proceed immediately, as it ultimately must in any event, to final resolution by the Supreme Court. At the very least, the petition should be held in abeyance pending Supreme Court action on the certiorari petition already before it.

The brief makes the point clearly that en banc proceedings would be a waste of time if the Court grants review:

In particular, where cases are “important” only by virtue of their national implications, or where Supreme Court review is otherwise required or likely, rehearing is not only a waste of resources but could actually harm the public interest by delaying final resolution.

The brief also cites a number of opinions concurring in denial of en banc, from *high profile* D.C. Circuit cases, where judges preferred to let the Court resolve it.

  • Bismullah v. Gates, 514 F.3d 1291, 1299 (D.C. Cir. 2008) (Garland, J., concurring in denial of rehearing en banc) (“Were we to grant en banc review in Bismullah, we would plainly delay our decision and hence the Supreme Court’s disposition of Boumediene. As delaying the latter is contrary to the interests of all of the parties, as well as to the public interest, I concur in the denial of rehearing en banc without reaching the merits.”).
  • Nat’l Inst. of Military Justice v. DOD, No. 06-5242, 2008 U.S. App. LEXIS 16732, at *5 (D.C. Cir. Apr. 30, 2008) (Tatel, J., concurring in denial of rehearing en banc) (“Only the Supreme Court can clarify the outer limits of the ‘intra-agency’ prong of Exemption 5.”).
  • Brown v. Pro Football, Inc., 50 F.3d 1041, 1071 (D.C. Cir. 1995) (Tatel, J., concurring in denial of rehearing en banc) (“This case presents antitrust and labor issues of national significance. The issues have been fully engaged and developed by the majority and dissenting opinions. Supreme Court review is essential to the resolution of these issues.”).
  • Kimberlin v. Quinlan, 17 F.3d 1525, 1526 (D.C. Cir. 1994) (Williams, J., concurring in denial of rehearing en banc) (“[I]t seems to me on balance preferable to continue with [Circuit precedent] until the Supreme Court resolves the issue”); see also id. (Silberman, J., concurring the denial of rehearing en banc) (agreeing that “the Supreme Court is better positioned than we to resolve” the issue).

They also cite an article co-authored by Judge Ginsburg, stressing that there is no need for en banc review where the Supreme Court will soon take it.

Douglas H. Ginsburg & Donald Falk, The Court En Banc: 1981-1990, 59 GEO. WASH. L. REV. 1008, 1025 (1991) (“If the conflict is important, the Supreme Court is likely to resolve it, and its decision is not likely to be affected by anything that the en banc court could add to the debate already reflected in the conflicting opinions of the circuits.”).

This is the quintessential case in which the urgent need for Supreme Court review weighs strongly against en banc consideration. The significance of the IRS Rule makes prompt and definitive resolution a national imperative, and only the Supreme Court can provide it. By contrast, en banc rehearing would waste a great deal of resources and cause significant delay, contrary to the public interest.

As I noted (at sea) when Halbig and King were both decided, en banc doesn’t make sense if the Court grants certiorari. The D.C Circuit should hold onto the petition to see what the Court does. If the D.C. Circuit acts quickly, and grants review, a cert grant would moot it.  The brief makes this point:

First, if this Court grants rehearing and then, in October, the Supreme Court chooses to grant the King petition nonetheless, any work done in the interim by this Court, the parties, or their amici would become effectively moot.

Although, maybe the Court would then not grant cert, and wait for the D.C. Circuit. Oh the machinations are endless!

In other words, the D.C. Circuit would be in a better position to put the onus on One First Street to decide what happens. If the Court then denies cert, en banc considerations can continue.

At minimum, if this Court has any doubt over whether the Supreme Court will actually grant the pending certiorari petition in King, the Government’s en banc petition should be held in abeyance pending action on the King petition. If the Supreme Court for some reason denies review, this court can then give the en banc petition further consideration. If the Supreme Court grants review in King as expected, the en banc petition can be safely denied.

Looking ahead, the brief sketches out the likely schedule for the King petition:

The Supreme Court is primed to provide that final resolution. In King v. Burwell, which was also greatly expedited, the Fourth Circuit upheld the IRS Rule that the panel here invalidated. See No. 14-1158, 2014 U.S. App. LEXIS 13902 (4th Cir. July 22, 2014). And, even before the Government filed its en banc petition, the King plaintiffs filed a certiorari petition asking the Supreme Court to grant review to resolve the Circuit conflict. Exh. A (Pet. for Cert., No. 14-114). The Government’s response to the petition is due by September 3, 2014, allowing the Court to grant review in late September or early October and to resolve the case on the merits during the upcoming Term. In light of the division among the lower courts and the self-evident importance of the issue, there is no doubt that, if this Court denies rehearing, the Supreme Court would do just that. There would accordingly be a final, authoritative determination by June 2015 at latest.

In short, it is in everyone’s interests for the Supreme Court to finally resolve this question now, to both preclude further detrimental reliance and to eliminate the cloud that will inevitably hang over the IRS Rule otherwise. En banc rehearing cannot achieve that goal. The Government’s petition should therefore be denied.

In a few places, the brief does veer into the political, though I think does so effectively.

Importantly, given that the panel’s holding was dictated by the Act’s plain text, there is a good chance of en banc affirmance, notwithstanding the Senate Majority Leader’s cynical suggestion that the “simple math” of en banc review in this case “vindicates” his elimination of the filibuster to confirm three new judges to this Court. Josh Gerstein, How Obama’s Court Strategy May Help Save Obamacare, POLITICO, July 22, 2014; see also Emily Bazelon, Obamacare Is Safe, SLATE, July 22, 2014 (claiming that the panel “will likely be reversed” because “D.C. Circuit (finally!) has four Obama appointees”).

I think this flips the political rhetoric on its head. The D.C. Circuit should stand above the politics, and not succumb to all of the calls from Reid and Bazleon and others to uphold the rule because that is what liberals want.

I should note there is some irony in the fact that Emily Bazelon’s grandfather, Chief Judge David Bazelon was responsible for so much rancor on the D.C. Circuit. His feuds with Warren Burger were legendary.

I should also lump in his, successors Mikvah and Wald, who were responsible for much of the dissent on the D.C. Circuit. In his article, Judge Ginsburg alluded to, but did not name the latter two judges.

Looking at the dissent rate year by year,21 I found a significant drop off beginning in 1997, followed by relatively level and much lower rate from 1998 to 2007. Indeed, the average dissent rate in the first eight years of the study period (1990- 97) was 5.5 percent, whereas it was only 3.6 percent for the next 10 years (1998-2007). Upon closer inspection, I noticed that 20 percent of the dissents in the entire period were filed by two judges; one left the court in July 1994, the other in late 1999.22 But for the dissents of those two judges, the dissent rate for the first eight years would have been 3.9 percent, and the rate for the overall 18-year period covered by the authors would have been 3.7 percent instead of 4.6 percent. Without the contribution of those two judges, the D.C. Circuit’s dissent rate would drop from the second to the fourth-highest of the courts of appeals.23

In case you needed a hint–because Judge Ginsburg is to kind to name names–Judge Abner Mikva was Chief Judge until 1994, when he left the court to become President Clinton’s counsel. The other is Judge Patricia Wald, who left the court in 1999. Ahem. Both Carter appointees were responsible for an inordinate number of dissents over the period. Note Judge Ruth Bader Ginsburg was not among that group.

Judge Ginsburg heaped praise on Judge Edwards, who helped unite the court:

When the first of the two frequent dissenters left the court, it had a reputation for being contentious; a number of local newspaper gossip columns had run articles reporting rumors of bad blood among the judges.24 At that point, however, Harry Edwards became the new chief judge and made it a priority to restore collegiality among the judges; that he did with remarkable success, and his efforts have been continued by the three chief judges since. His becoming chief judge marked the end of the court’s practice of seating visiting judges. In relatively short order, the number of times the full court sat en banc to rehear a case previously decided by a panel of three judges dropped significantly: The number of rehearings en banc averaged six per year in the 1980s,25 three in the 1990s,26 and less than one in the first decade since.27 In my view, these declining numbers reflect in part the increasing level of mutual trust and respect among the judges.

Adam White made a similar observation in WSJ:

Mr. Edwards played an important role in the court’s history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

Thankfully, Judge Edwards, and his successors, have helped to clean things up, and improved the collegiality of the court.

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Aug 17, 2014

Are States “free to drop out of the Medicaid expansion if they choose to”?

At the NYTimes Upshot, Uwe Reinhardt–who testified at one of the first ACA hearings back in 2010–explains that the Medicaid expansion is a deal too good for a state to turn down. He also explains that there is no downside, and that “states are free to drop out of the Medicaid expansion if they choose to.”

Some governors and other Republicans have expressed fear that, in the end, the federal government will just renege on the deal now being offered, leaving the states to pick up the entire tab of the Medicaid expansion. There actually is no historical precedent for this in Medicaid. But according to a federal document addressing frequently asked questions about the Affordable Care Act, states are free to drop out of the Medicaid expansion if they choose to.

The document Reinhardt cites is an FAQ from December 10, 2012, 5 month after NFIB v. Sebelius was decided. Question 25 is:

25. If a state accepts the expansion, can a state later drop out of the expansion program?

A. Yes. A state may choose whether and when to expand, and, if a state covers the expansion group, it may decide later to drop the coverage.

Of course this is legally true. States are free to join or drop the Medicaid expansion whenever they so choose. That was never the issue. The issue is what would happen to the state’s Medicaid budget if they did not play ball with HHS. As I explain in Unprecedented, and in this post, HHS originally took the position that if a state refused to comply with the expansion, it would lose its *entire* ACA budget. All of it. The Medicaid Expansion, as originally drafted, was designed to punish uncooperative states.

But then NFIB changed things. The Chief’s controlling opinion found that HHS could not force the states to join the expansion, as there was no real choice. The Court then rewrote the statute (as it did with the mandate), and gave states the option to decide to opt into the mandate. Texas,and other states have chosen not too–leaving a lot of money on the table, as Reinhardt noted. But, the decision to opt in a decision a state makes once, and only once. There’s no meaningful way to exit without bankrupting the state, and risks losing the entire Medicaid budget. While HHS would not disclaim that power during arguments in NFIB. it is a power they sought to retain.

Reinhardt’s post is technically accurate, but it omits the fact that states, once a part of the expansion, risk losing their entire budgets if they are ever to leave. This is hardly being “free to drop out” at their convenience.

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Aug 16, 2014

Yaakov Roth- Religious Liberty Victories in CA6 and CA2, on the Same Day

Congratulations to my good friend Yaakov Roth on two victories in two courts of appeals on two different religious liberty cases–on the same day.

On Friday, Yaakov won the first case he has ever argued, Haight v. Thompson in the 6th Circuit. Yaak took this case pro bono. The case involved a RLIUPA claim on behalf of Native American inmates in a Kentucky prison who wanted to partake in the ceremonial sweat lodge ritual, and eat traditional foods. Judge Sutton, writing for the panel, agreed with their main claims, and found they should be allowed to engage in their rituals. Though they lost on damages, though (now-Chief) Judge Cole wrote separately to express some reservations on the court’s damages jurisprudence.

Also on Friday, the Second Circuit ruled in favor of a case Yaakov has been working on for about three years, involving a New York City regulation concerning a specific form of circumcision practiced by some sects of Orthodox jews, where oral suction is applied to the penis. NYC, after reports that infants received the Herpes Simplex Virus from this procedure, required that the Rabbis who perform this ritual (mohelim) provide a disclosure to the parents. This regulation was challenged on both compelled speech, and First Amendment free exercise grounds. The district court ruled against the Rabbis, but the 2nd Circuit reversed, finding the district court should have applied strict scrutiny on a Church of Lukumi claim. Interestingly, the 2nd Circuit did not reach the compelled speech issue, because strict scrutiny applies on religion. I thought the Free Exercise claim was much tougher, and they were on stronger footing with compelled speech, but the Court insisted this regulation singled out a very small sect of Orthodox Jews. Eugene Volokh has more about the case.

Congratulations again to Yaakov, and all of the attorneys who worked with him on these cases!

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Aug 15, 2014

Washington Redskins Appeal Trademark Ruling in EDVA, Not Federal Circuit

After the Trademark Trial and Appeal Board ruled against the Washington Redskins, I noted that the team had the option of appealing to the Federal Circuit, or file the case anew in federal district court for de novo consideration. The Federal Circuit had some horribly wrong First Amendment jurisprudence, that brushed aside whether the government can deny a mark because it is “disparaging.”

WaPo reports that the team has challenged the ruling in federal court in the Eastern District of Virginia in Alexandria.

“We believe that the Trademark Trial and Appeal Board ignored both federal case law and the weight of the evidence, and we look forward to having a federal court review this obviously flawed decision,” said Bob Raskopf, trademark attorney for the Washington Redskins, in a statement.

More importantly, this suit will not be bound by the D.C. Circuit’s precedents.

The team can now introduce fresh evidence into a battle that has been confined to the patent office and limited to mostly decades-old testimony. The federal district case also gives the team an extra chance to appeal in case it loses. If the Redskins had filed their case at the U.S. Court of Appeals for the District of Columbia, their appeal would have been restricted to old depositions and documents that have already been widely dissected.

As far as a forum goes, the team is identified with Washington, plays in Maryland, practices in Virginia, and is incorporated in Virginia, so I suppose that was the better venue. Hopefully the 4th Circuit will engage in meaningful First Amendment analysis, which was utterly lacking by the TTAB.

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Aug 13, 2014

Comparing Houston and New York

City Journal highlights the cost of New York, and offers a number of comparisons about how much cheaper it is to live in the Space City than the Big Apple.

texas-wages property-taxes houston-build

Here is a breakdown of the cost of necessities.

The higher prices that inevitably result from these restrictions on commerce are a substantial burden to ordinary New Yorkers, who can’t regularly leave to shop in the suburbs. Just compare the cost of basic necessities in New York with that in other cities, especially those considered to have low levels of inequality, like Houston, Oklahoma City, Las Vegas, and Colorado Springs. The website’s cost-of-living index estimates that the average price of a quart of milk is 55 percent higher in New York than in Las Vegas, while eggs cost 34 percent more per dozen than in Houston; two pounds of apples cost 22 percent more in New York than in Colorado Springs. New York City retail costs are considerably higher even than other overregulated, heavily taxed metro areas such as Los Angeles, where food purchased at home or in restaurants costs 11 percent less. A 2006 Brookings Institution study of the impact of high prices on the urban poor maintained that New York’s high costs were a function of poor policies and could be fixed, if the city had the political will. “To lower these prices, public and private leaders must reduce the higher business costs that drive up prices for poor families,” the Brookings report noted.

All these factors—the expensive housing, fat tax bills, and high prices—have a direct and powerful effect on people’s daily lives. In a 2008 City Journal article, Glaeser calculated that, after including the costs of housing, taxes, and transportation, the average Houston family wound up with 50 percent more income to spend than the average New York family. The difference in real dollars: about $32,000 in spendable money for the typical Houston family, compared with just $21,000 for the New York family. (See “Houston, New York Has a Problem,” Summer 2008.) In a similar study of median incomes adjusted for cost of living in 50 metro areas, City Journal contributing editor Joel Kotkin and the Praxis Strategy Group’s Mark Schill determined that Houston workers enjoyed the nation’s highest effective pay: the annual average Houston salary of $67,279 was worth $75,256 when adjusted for the city’s lower-than-average cost of living. By contrast, in New York, the average annual salary of a worker, $77,640 on an unadjusted basis, shrank to $50,169 when corrected for the city’s high costs—above all, housing and taxes (see Figure 4). That left New York a poor 41st among metro areas in average annual effective pay.

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Aug 13, 2014

Observations on “An Empirical Study of Political Bias in Legal Scholarship”

I read with great interest Adam Chilton and Eric Posner’s new article about political bias in legal scholarship. I encourage you to read the entire piece, as it is quite thought-provoking. Their general conclusion was “professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship.”

I had a few observations, that I will point out in this post.

First, the authors had a tough time finding enough law professors at the top 14 schools who donated more money to Republicans.

In the initial sample of 140 professors, however, only 8 had donated more money to Republicans than Democrats (which is our principle measure of ideology).

The authors had to turn to an alternate methodology to try to find more conservatives at the top universities:

That said, we still believed that 8 Republicans was too small a sample for drawing reliable inferences, so we proceeded to oversample Republicans. To do so, we used the Database on Ideology, Money in Politics, and Elections (DIME) developed by the political scientist, Adam Bonica.30 Using the DIME database, we searched for employees of the 14 law schools in our sample who were net conservative donors, and who met our criteria of being tenured academic scholars. This resulted in the identification of an additional 16 Republican donors who were not already in our sample. We added these 16 professors to our initial sample of 140 professors, resulting in a sample of 156 total observations.

I’m not sure how this impacts the randomness of their sample, but in the end, there were 24 “Republican” law profs, and 132 “Democrat” law profs sampled at the top 14 law schools. This doesn’t surprise me, and is consistent with research by John McGinnis, James Lingdren, and others.

Second, the authors broke down these professors by subject matter they wrote in. My initial thought, was, how many of those 24 “Republican” Profs teach constitutional law. The authors note (p. 21) that virtually none of them teach ConLaw:

Third, the distributions may reflect the influence of constitutional law scholarship. Just by chance, none of the net Republican donors in our dataset are constitutional law scholars, and only one of the adjusted Republicans is. If constitutional law scholarship is more ideological than other forms of scholarship,50 the different distributions may show that Democrats are more likely to write constitutional law scholarship but not that they are otherwise more likely to write ideologically than Republicans.

Specifically, among the ConLaw professors sampled in the revised set, 20 were Democratic donors, 1 was a Republican donor, and 5 were non-donors. Again, this isn’t surprising.

As David Hyman notes in a new symposium issue of the Illinois Law Review on why the Law Professors Misunderestimated the Obamacare lawsuits, Akhil Amar carefully revised his discussion of professors who supported the challenge from top 20, to top 10:

In a public debate before the Supreme Court held oral argument, Professor Amar emphasized the fact that only one law professor at the top ten U.S News-ranked law schools agreed that the challenges to PPACA had merit.48 A year earlier, Professor Amar made a broader claim: that there was only one “constitutional scholar that I know at a top twenty law school (there are hundreds of them, they’re left, right and center) that thinks this is constitutionally problematic.”

I’m pretty sure he was referring to Richard Epstein in the former example–though this excluded Randy Barnett (Georgetown is not top 10). My contribution to the symposium, Obamacare and Man at Yale, makes similar observations.

Third, the authors confirm what seems to be the conventional wisdom–many closeted conservatives get ahead by stifling their ideology, or writing in field where ideology isn’t as important.

With those caveats in mind, if it is in fact the case that Republicans write less ideologically biased scholarship than Democrats do, then one would naturally ask why. The most plausible explanation is that if the dominant ethos in the top law schools is liberal or left-wing,51 then Republicans are likely to conceal their ideological views in their writings. Republican professors might fear that scholarship that appears conservative may be rejected by left- leaning law review editors, and disparaged or ignored by their colleagues, which will damage their chances for promotions, research money, and lateral appointments. This would explain why even non- donors tilt left. Republicans could suppress their ideological views by avoiding controversial topics, taking refuge in fields that have little ideological valence, focusing on empirical or analytical work, or simply writing things that they don’t believe.

This is an important point the authors make. When I first considered going on the market, I received many forms of conflicting advice. One of the bigger dividing points was whether I should pursue a position teaching constitutional law with my views. Some argued that I should pick something non-controversial, like Torts or Corporate Law, and maybe write about ConLaw when I got tenure. There are some academics who have taken this strategy. Others said this strategy was ridiculous, I would be stifling my own creativity, and punishing myself as an academic. I ultimately sided with the latter approach–in no small part because I had already written numerous ConLaw articles–and listed ConLaw as the top class I wanted to teach. I am thankful things turned out the way they did, but I’m sure others have taken the former approach.

Fourth, for the small number of “Republican” law professors, there sure were a lot of “Conservative” articles written. The article found:

Of the 780 articles in our dataset, 512 are liberal and 237 are conservative.

The authors don’t draw any conclusions here, but it would seem this small cadre of conservative law professors is quite productive. I don’t know quite how the numbers break down, as some liberals authored conservative papers, some conservatives authored liberal papers, and some neutral professors authored both. But, if I read the study correctly, “professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship.” More likely than not, a liberal article was authored by one of the many liberal professors, and a conservative article was authored by one of the few conservative professors. Extrapolated, 24 conservatives law professors wrote (some large share of) 237 conservative articles–about 10 articles per professor. The remaining 132 liberal law professors wrote (some large share) 512 articles–about 4 articles per professor.

Update: After closer study, I see that the authors only considered a professor’s 5 most recent articles, so this wouldn’t really measure productivity in this way.

If so, this may confirm a piece of conventional wisdom I’ve heard many, many times–a conservative scholar must be able to outpublish any concerns from a tenure committee. In other words, if you publish enough quality scholarship, it can provide a rebuttal to any concerns from others.

Fifth, the authors find that  “net Democratic donors write highly ideological articles, whereas net Republican donors write articles that are distributed widely across the spectrum.”

According to our coding system, net Democratic donors write highly ideological articles, whereas net Republican donors write articles that are distributed widely across the spectrum. The average net Democratic donor writes 2.63 liberal articles on net, while the average article of a net Republican donor writes 0.17 conservative articles on net, which is even closer to 0 than the number of article written by non-donors, who on average write 1.44 liberal articles on net..

The authors state their position later:

In other words, our data suggest that Democrats in our sample do not write articles that are on balance neutral, but that Republicans in our sample may write articles that are on balance neutral. Forty percent of the articles written by Democrats (adjusted) could not be classified with high confidence, 51 percent of articles written by Republicans (adjusted) could not be classified with high confidence. If such articles are “neutral,” then Republicans wrote substantially more neutral articles.

So the few “Republican” authors, more likely, author “neutral” articles than the “Democrat” authors.

Fascinating article, with a lot of food for thought.

Update: Adam Chilton offered this reply, which he gave permission for me to post here:

In response to your first question, we unfortunately cannot say anything about the productivity of liberal or conservative professors. For each of the 156 professors in our sample, we coded their 5 most recent articles. So in our dataset, everyone is equally productive so to speak (although obviously some professors finished their 5 most recent articles in the last year and others took upwards of a decade to write the 5 articles we coded).
In response to your second question, of the 237 conservative articles in our dataset, the conservative professors wrote 91 of them, liberal professors wrote 109 of them, and 37 were written by professors whose ideology we were unable to code. So, liberal professors wrote a plurality of the total conservative articles, but there were many more liberals than conservatives in the sample. When we look at just the 110 articles that we were able to code with “high confidence”, this changes slight. Of those 110 articles, 51 were written by conservatives, 44 by liberals, and 15 by neutral professors.

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Aug 13, 2014

Liberty in the Time of Ebola

Jacobson v. Massachusetts held that during an epidemic, there is no constitutional right to resist inoculation. Although that case is often cited as the justification for Buck v. Bell (mandatory sterilization), the case also stands by itself, that during times of a virulent epidemic, the government gets to do whatever it wants to protect the general welfare.

Perhaps what scares me most about Ebola (which isn’t nearly as contagious as movies would lead you to believe), is the utter civil liberties mess that would happen if there was even hints of an outbreak. The CDC could roll in and quarantine people, lock down populations, and turn life into a police state, very quickly. They have almost limitless authority, and our legal system would impose no restraints.

Dr. Scott Gottlieb at Forbes speaks to the likely course of events:

Yet given the deadly nature of the Ebola virus, and the popular worry it’s likely to engender, one can expect the CDC and health authorities to pull out all the stops. The response could include invocation of the CDC’s evolving quarantine authorities.

These federal powers comprise a set of rules that gives CDC sweeping authority to hold and isolate Americans in a public health emergency. These authorities haven’t been fully updated in decades. They’ve only been amended in piecemeal fashion to deal with modern threats like SARS and MERS. In advance of what may be a very public test of these powers, the collected scheme deserves closer scrutiny.

Updated quarantine regulations were first proposed in 2005 during the Bush Administration amid fears of pandemic flu. The regulations spelled out in detail how CDC would exercise its sweeping powers to involuntarily confine sick individuals and those believed to be exposed to certain deadly and contagious diseases. The rules also focused efforts on quarantine at airports. Among other things, it held airlines responsible for keeping records to help health officials track down people coming off flights, in the event they would need to be located later for quarantine.

In the event of an outbreak, CDC could effectively detain people involuntarily for up to three days, if they suspect someone was infected. This discretion is quite broad, to include any “ill person” with symptoms consistent with the disease.

The set of regulations also included a new “provisional quarantine” rule that would have allowed CDC to detain people involuntarily for up to three days, with no mechanism for appeal. CDC had to believe a person was infected with certain pathogens. Among the diseases included were pandemic flu, infectious tuberculosis, plague, cholera, SARS, diphtheria, and viral hemorrhagic fevers such as Ebola.

The regulations also defined “ill person” to include anyone with the signs or symptoms commonly associated with the diseases in question. This gave CDC more flexibility in deciding whom to quarantine by capturing a broader and earlier range of symptoms as the basis for holding an individual. It allowed for greater exercise of discretion public health officials and those staffing quarantine stations.

The regulations were an attempt to provide clarity to how quarantine would be implemented. But in spelling out its proposed procedures, the rule raised concerns that the feds were assuming too much jurisdiction to detain people involuntarily. In short, CDC got itself into political trouble by merely clarifying how it proposed to implement federal authorities that the agency long held, and still maintains.

Even worse, the CDC can hold someone who is not sick, but may have come into contact with the disease “for such time and in such manner as may be reasonably necessary.”

In the presence of a suspect case of Ebola, the official CDC website details‘Specific Laws and Regulations Governing the Control of Communicable Diseases’, under which even healthy citizens who show no symptoms of the virus could be forcibly quarantined at the behest of medical authorities. The existing regulations stipulate, “Quarantine is used to separate and restrict the movement of well persons who may have been exposed to a communicable disease to see if they become ill.”

In other words, you don’t have to be sick to be detained. Just suspected by health officials of having been in contact with someone who might have had the disease.

The regulations say a person “may be detained for such time and in such manner as may be reasonably necessary.” Is that three days or thirty? There are no rules.

And there is now to challenge this, anywhere. Due process whatever.

While the rule was never fully implemented, in its absence, one can assume that CDC would implement quarantine in keeping with these general constructs.

President Obama withdrew the Bush quarantine rule in 2010 because the provisions, when spelled out in regulation, proved controversial. Airlines, in particular, balked. Yet in its place the Obama Administration implemented a series of Executive Orders, and fell back on the CDC’s original quarantine provisions. The status quo could be just as troubling as the controversial regulation that it displaced.

You can be sure that once the panic hits, these very regulations would be dusted off, and the troops would roll in. I found this article from 2002 concerning steps following an smallpox outbreak:

State governments recently submitted draft plans for responding to a smallpox outbreak but, citing security concerns, most states are saying very little about their plans.
Professor Lawrence Gostin, director of the Center for Law and the Public’s Health at Georgetown University Law School, said “there are huge logistical problems” with a quarantine, “not to mention the civil liberties implications of taking away people’s liberties en masse.”

Asked whether he can envision troops being called in to enforce a quarantine after an outbreak, Gostin answered, “Sure. Just consider what might happen if a smallpox carrier landed at Kennedy Airport in New York. If you were the governor of New York, would you close down JFK? Would you stop travel between New York and New Jersey? There is a whole range of options.”
Indeed, the National Guard could be called in to set up roadblocks, as the Yugoslav government did when a smallpox epidemic broke out in that country in 1972.

Very scary.

Now, you may say, Josh, what are you crazy? Do you want an Ebola outbreak? Of course not! I read The Hot Zone years ago, and am still mortified. Ebola, like many other diseases, poses a serious public health risk that could kill many. But,as with all public concerns, the government should not be able to run roughshod over civil liberties, without any concern for due process of law. Vague standards that give the CDC unfettered discretion may take things too far. Accused terrorists would be afforded more due process than people thought to be infected with diseases. The time to discuss these things is now, before an outbreak. Because, you can be certain that once something happens, the executive will execute, and there will be no debates.

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Aug 13, 2014

Constitutional Birthday

Today I satisfy the requirements of Article I, Section 3. Only five years to go till I meet the requirements of Article II, Section 1.

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