May 2, 2016

Walsh Reviews “The Process of Marriage Equality” on Jotwell

At Jotwell, Kevin Walsh reviews my co-authored article with Howard Wasserman, The Process of Marriage Equality. I am grateful to Kevin for his thoughtful analysis in Process Failure on the Road to Obergefell.

Here is the introduction:

In The Process of Marriage Equality, Josh Blackman andHoward Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

And the conclusion:

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers viewObergefell more like Brown or more like Roe, the record of the process that led toObergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.

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May 1, 2016

A Sensible Measure from the Brady Campaign to Reduce Mass Shootings: The Media Should Stop Naming The Killers

One of the most under-discussed aspect of mass shootings is the so-called “copycat effect.” The deranged individuals who seek to inflict such mass carnage often worship and idolize those homicidal maniacs who came before them. One solution to clamp down on these killings is one our sensationalistic media is least interested in: stop broadcasting the name and photograph of the killers!

For example, Sun News–dubbed the Fox News of Canada–exhibited great self-restraint in reporting on a violent shootout up north.

After a shooter murdered three Royal Canadian Mounted Police officers and left two others in critical condition in New Brunswick, the Canadian network refused to show his name or picture. The network ran an editorial Friday to give the reasoning behind the decision.

“It’s easy to report on the life of the killer, to scour his deranged Facebook page, to speculate about motive, but doing so could actually encourage the perception that his heinous acts are somehow justified,” the editorial reads. “We will not help give this killer his blaze of glory.”

Many shooters express a desire for attention or fame before their killings; the two Columbine shooters hoped Steven Spielberg or Quentin Tarantino would make a film about them. In the wake of mass shootings, media outlets descend on a community and seem to barrage the airwaves with details about the perpetrators — what they said on social media, how they dressed and what video games they played.

“With the unwitting cooperation of 24/7 media, he will become a national villain,” Vox‘s Ezra Klein wrote about the UCSB shooter two weeks ago. “And other sick young men will see him get the renown in death that they have have never been able to receive in life.”

This is exactly the right approach, but as I’ve discussed here and here, the American media has no interest in exhibiting such self-restraint. Indeed, the nonstop wall-to-wall coverage of mass shootings–with a focus on who the killer is, what his social media profiles say, and how his manifesto reads–helps to enable the next generation of shooters.

In a rare instance of agreement, the Brady Campaign has come out against this media sensationalism:

Researchers studying the phenomenon of mass shootings are increasingly convinced that these events can be explained through the metaphor of viruses — someone sneezes, the germs spread, others get infected, and so on.

Mass shooters intensely study their forbears. They often reference each other in their online ramblings and attempt to honor — or surpass — them in their own rampages. In this metaphor, social media and news organizations are spreading the germs.

A common trait among mass murderers is the desire to achieve immortality. Deranged individuals who plan mass shootings often glamorize previous massacres, and seek to emulate those murders. The murderer at Newtown maintained a “score sheet” of previous mass murders. The Columbine shooters hoped that Quentin Tarantino would make a movie about them. The shooters at Virginia Tech and Columbine, in their manifestos, made explicit references to earlier shootings, and sought to inspire other mass-murders.

Brady urges the media to reconsider their breathless coverage of these tragedies:

Until the news media agrees to stop naming mass shooters, their notoriety will continue to spread, particularly to disturbed people susceptible to those images.

To that end, the Brady Campaign’s effort includes a PSA and an online petitionto encourage media outlets to stop using the names and images of shooters.

“The media also has a role to refrain from memorializing monsters by splashing the names and faces of shooters all over television, newspapers, and the Internet,” Gross said.

I couldn’t agree more. Studies show that when the media deliberately decreases coverage of suicides, the rate of suicides drop. Likewise, media coverage of celebrity suicides increase suicides. NIH has published guidelines about media coverage of suicides.

This is a conversation the media should take up, considering how serious they are about stopping and prevent mass shootings. Gun control is not the only avenue.

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Apr 29, 2016

Holder: Covington Hired Me, Knowing They Would Lose A Big Bank Client. Cf. Paul Clement and King & Spalding

Former-Attorney General Holder spoke at Georgetown about his return to private practice at Covington & Burling. Tony Mauro reports that a “big bank” told Covington that they would have to drop the firm if Holder was hired. The firm didn’t care, and hired Holder anyway.

He also revealed that Covington may have lost a client because the firm hired him back.

“Big banks are not beating down my door” for him to represent them, Holder said. “One big bank went to Covington and said, ‘If you hire this guy, that is going to put at risk the relationship between this firm and this bank.’ ”

Holder went on to say that the firm’s chairman, Timothy Hester, to his credit, said, “I guess we’re not going to have a relationship anymore, because he’s coming back to Covington.”

Compare this with how King & Spalding treated Paul Clement when he was retained to represent the House of Representatives in United States v. Windsor.

Instead of standing by Clement, who at the time was already one of the top Supreme Court advocates, and who had already retained a client, the firm withdrew from the matter. Clement promptly left the firm, writing that he resigned “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters . . . When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.” Clement then began his illustrious service at Bancroft.

Dahlia Lithwick wrote at the time:

Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement’s defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation. The group indicated that while it did not pressure other clients to leave the firm, it did “contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.” Fred Sainz, a spokesman for the Human Rights Campaign, explained: “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.”

Tony Mauro reported:

Pressure from within King & Spalding — as well as from some of its clients — were said to be factors in Clement’s exit.

One firm dropped a major bank as a client, rather than refuse to hire the former Attorney General, who had not engaged in any attorney-client relationships yet. Another firm dropped a lawyer–the former Solicitor General–after he had already engaged in an attorney-client relationship. One firm was willing to lose a client to hire an attorney. Another firm would rather withdraw from a matter, and let an attorney go, to avoid alienating clients. Go figure.

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Apr 29, 2016

Chief Justice Roberts Makes Appearance in Anti-Trump Super PAC Ad

In the spot, Hillary Clinton goes the full William Henry Harrison, and takes the oath without an overcoat. Let’s hope this time the Chief gets the oath right!


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Apr 29, 2016

Instant Analysis: Association of American Railroads v. U.S. Department of Transportation (CADC)

Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses.  Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.

On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.

Here is the introduction of her opinion:

For the freight operators who challenged PRIIA, however, that decision left three questions unanswered. Conceding Amtrak’s governmental status, the operators— represented by the Association of American Railroads—ask: Does it violate due process for an entity to make law when, economically speaking, it has skin in the game? Does it violate the Appointments Clause for Congress to vest appointment power of a principal officer in the Surface Transportation Board? And is a government corporation whose board is only partially comprised of members appointed by the President constitutionally eligible to exercise regulatory power? We decline to reach the latter question, but we side with the freight operators on the former two. We conclude PRIIA violates the Fifth Amendment’s Due Process Clause by authorizing an economically self-interested actor to regulate its competitors1 and violates the Appointments Clause for delegating regulatory power to an improperly appointed arbitrator.

Judge Brown’s opinion begins with a tribute to Magna Carta, and its influence on our Due Process Clause:

No clause in our nation’s Constitution has as ancient a pedigree as the guarantee that “[n]o person . . . shall be deprived of life, liberty, or property without due process of law.” U.S. CONST. amend. V. Its lineage reaches back to 1215 A.D.’s Magna Carta, which ensured that “[n]o freeman shall be . . . disseised of his . . . liberties, or . . . otherwise destroyed . . . but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). …

Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns.

To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.

The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).

In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).

In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:

We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311.

During oral arguments, Justice Breyer charged counsel for respondents with going “back to Lochner.”

JUSTICE BREYER: Going back to Carter v. Carter Coal.


JUSTICE BREYER: We could go back to Lochner.

Brown reads Carter v. Carter Coal as standing for the proposition that Congress cannot delegate power to self-interested firms that use that power to nakedly promote their self-interest.

The power to self-interestedly regulate the business of a competitor is, according to Carter Coal, anathema to “the very nature of things,” or rather, to the very nature of governmental function. Delegating legislative authority to official bodies is inoffensive because we presume those bodies are disinterested, that their loyalties lie with the public good, not their private gain. But here, the majority producers “may be and often are adverse to the interests of others in the same business.” Id. That naked self-interest compromised their neutrality and worked “an intolerable and unconstitutional interference with personal liberty and private property.” Id. Accordingly, the Court invalidated the Act as “so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment.”

Note that this is not a reversal of the normal rational-basis standard for substantive due process cases, but rather a species of the non-delegation doctrine as applied through the due process clause. But you can be sure that is how the government will characterize it.

The court takes a deep dive into the Framer’s views of rationally-self interested government officials, who would use the power of the state to aggrandize their own authority.

In fact, our Constitution’s ingenious system of checks and balances assumes government officials will act self-interestedly. “Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good,” the very first installment of the Federalist Papers opined. The Federalist No. 1, at 33 (C. Rossiter ed., 1961) (Hamilton). “But it is a thing more ardently to be wished than seriously to be expected.” Id. And as Alexander Hamilton observed elsewhere: “We may preach till we are tired of the theme, the necessity of disinterestedness in republics, without making a single proselyte.” Alexander Hamilton, The Continentalist No. IV, in 3 The Papers of Alexander Hamilton 99, 103 (Harold C. Syrett ed., 1962). Self-interested lawmaking was not some shocking aberration; it was an unwelcomed expectation, one our Constitution endeavored to channel and check. See The Federalist No. 51, at 321–22 (Madison) (C. Rossiter ed., 1961) (“Ambition must be made to counteract ambition.”).

Ambition must be made to counteract ambition. I couldn’t have said it better than myself.

With this framework, Judge Brown finds that Amtrak is self-interested:

 Amtrak’s self-interest is readily apparent when viewed, by contrast, alongside more traditional governmental entities that are decidedly not self-interested. The government of the United States is not a business that aims to increase its bottom line to achieve maximum profitability. Unlike for-profit corporations, government strives—at least in theory—for an equilibrium of revenues and expenditures, where the revenue obtained is no more and no less than the operating costs of the services provided. Amtrak’s charter stands in stark contrast. Its economic self-interest as it concerns other market participants is undeniable.

Under Carter Coal, such a delegation cannot stand:

Armed with coercive regulatory power, Amtrak wields a weapon of considerable advantage in its competitive battle for scarce track. And while the Constitution may grudgingly accept the reality of self-interestedness, it does not endorse it as an unmitigated good.

Congress delegated its legislative power to an entity that it designed to be the opposite of “presumptively disinterested.” Carter Coal, 298 U.S. at 311. Like coal competitors, whose “diversity of view[s]” concerning the challenges of the industry “[arose] from their conflicting and even antagonistic interests,” id., the antagonistic interests of freight operators and Amtrak transform the development of new performance metrics and standards into an unfair game of zero sums.

Judge Brown, joined by Sentelle, previously issued a concurring opinion in Hettinga v. United States that cast serious doubt on the Court’s post-1937 jurisprudence.

The court also finds a violation of the appointments clause, which I will try to address in a later post.

As the foregoing analysis suggests, among the Framers’ chief concerns at the constitutional convention were questions of who should be permitted to exercise the awesome and coercive power of the government. Tyrannous abuse of that power precipitated revolution against Great Britain. Overly restrictive access to it crippled our young nation under the Articles of Confederation. The novel equipoise the Constitution struck was to vest the legislative, executive, and judicial powers in independent branches of government and then empower each to check the others.

One last note. In the event that this case goes en banc, the math is funny because there were two senior judges (Sentelle and Williams) on the panels. The two senior judges don’t get to vote for the case to go en banc, but they do get to sit on the en banc court. If it goes en banc, there would be six judges appointed by Republican Presidents (Brown, Sentelle, Williams, plus Henderson, Griffith, and Kavanaugh). With Garland recused, there would be six judges appointed by Democratic presidents (Rogers, Tatel, Srinivasan, Millett, Pillard, and Wilkins).

As Sean Marotta pointed out on twitter, per D.C. Circuit Rule 35(d), a 6-6 en banc vote affirms “the decision under review.”

If the en banc court divides evenly, a new judgment affirming the decision under review will be issued.

But this case was on direct remand from the Supreme Court. The panel decision today addressed issues that were not addressed by the District Court, and that were decidedly left open by the Supreme Court’s decision. I think this would have the effect of “affirming” the judgment for the government, without endorsing any of the reasons why they win. This lineup could ensure that the issue makes a repeat trip to SCOTUS.

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Apr 29, 2016

Mental Health and Mass Shooters

After a mass shooting, the response is fairly predictable (even cyclical). Those who favor gun control advocate for stricter gun control  measures. Those who oppose gun control advocate for keeping guns out the hands out of people with mental health problems. However, in light of the nature of mass shooters, neither approach is designed to eliminate these high-profile, but extremely rare, mass killings. (It is worth stressing that attempting to reduce the number of single-person gun homicides differs wildly from reducing suicides or mass shootings, where four or more people are killed in a single incident).

The New York Times–in a piece that does not even mention gun control–discusses how difficult it is to predict the psychological profile of a mass killer.

These lone killers usually don’t fit into an existing category of mental illness, and there’s usually little evidence that early treatment would have helped . . . .

In fact, the sort of young, troubled males who seem to psychiatrists most likely to open fire in a school — identified because they have made credible threats — often don’t fit any diagnosis, experts say. They might have elements of paranoia, deep resentment or narcissism that are noticeable but don’t add up to a specific disorder, according to strict criteria. And there’s no good evidence that mental health treatment would have made a meaningful difference.

It is really easy to use 20/20 hindsight goggles, but making these diagnoses in advance is tougher than the media would let on.

The college student who killed six people before shooting himself in Isla Vista, Calif., in May 2014 saw multiple therapists; they disagreed whether he had emotional problems or high-functioning autism. TheSandy Hook shooter, who killed 26 people in an elementary school in Newtown, Conn. in 2012, had seen numerous psychiatrists and psychologists for years before his mass murder, including therapists at Yale’s renowned Child Study Center. After details of the young man’s childhood and home life emerged, some experts saw evidence of earlypsychosis or obsessive compulsive tendencies. But the only official diagnosis Adam Lanza, the shooter, had received was Asperger’s syndrome, a mild form of autism that by itself does not dispose people to violent acts.

It is simply not the case that these sick individuals–even with proper screening–can be identified in advance for heightened gun control with any degree of accuracy.

Intervening early to address the resentments and fantasies of this group — an approach called threat assessment — is thought to reduce the risk that the boys will act out. But spree killings are rare enough that it has been difficult to know how well such preventive measures work.

The consequence of these findings is that most gun-control laws premised on “mental health” conditions–as a means to halt mass shootings–will primarily generate false positives. Such a regime assumes people with depression, or other similar condition, are dangerous, so the state denies them the right to acquire an arm–even though their condition is unlikely to drive them to commit such horrific crimes.

I’ve written before how doctors in New York have explained that the state’s new mental-health registry may actually be counterproductive because it chills patients from seeking treatment, out of a fear of losing a constitutional right. This is compelled by New York’s imposition of liability on doctors who fail to report patients who go on to do bad things.This creates a perverse incentive to further increase the number of false negatives.

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Apr 29, 2016

Update on Executive Action on Guns: Law Enforcement Doesn’t Want Smart Guns Either

Back in January, when the President announced his long-awaited executive action on guns, the general consensus was that the steps he took were underwhelming. Not so. As I explained in National Review, President Obama was taking the long game on gun control. The key action he took focused on promoting research into so-called “smart guns.”

Beyond expanding the scope of prohibited gun owners, the president’s executive action also has the potential to restrict the types of guns people can buy. One of his executive orders directs the federal government to “promote the use and acquisition of new [gun] technology.” These so-called “smart guns” require a fingerprint scanner or a radio-frequency identification tag to be near the gun, before it will fire. During his press conference, the president joked, “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?”

Let me digress for a moment on the smartphone-fingerprint example. On the iPhone, there is a feature that allows you to take a picture without having to use a fingerprint, or code to unlock the phone.All you have to do is swipe up with the camera icon, and it goes straight to the camera app. Why do you think Steve Jobs and company inserted that feature? Because if you enter the wrong code, or if your finger is sweaty, the phone doesn’t unlock right away. When you have to take a selfie at *just* the right moment, and seconds count, requiring the user to unlock the phone takes too much time.


If time is of the essence to take a selfie, then time is really of the essence when using a firearm for self-defense. Even if a smart gun is able to discern the owner’s fingerprints, or the owner’s grip, it still introduces a potential for error. With self-defense, every millisecond counts.

The usual response to this is that the risk of malfunction is outweighed by the potential of eliminating accidental shootings. Politico explains:

It wouldn’t prevent most mass shootings, gun crimes or suicides — currently the biggest driver of gun deaths. However, they could cut down on the roughly 500 deaths each year from accidental shootings, especially by kids. Advocates also point to findings that most youth suicides are committed with a parents’ weapon, and instances where officers’ own guns are stolen in a scuffle and used to shoot them cause about 1 in 10 police deaths.

I address the magnitude of accidental shootings, in comparison to other deaths, in The Shooting Cycle.

A related heuristic focuses on how people weigh unfamiliar events. This heuristic is more intuitive: the fear of the unknown is greatest. More precisely, people often overweigh the risk of unfamiliar events. Consider the related topic of accidental shootings of young children (primarily where a child uses the firearm to kill him or herself). Though these events are horrible and avoidable tragedies, like mass shootings, they are also uncommon. Professor Dan Kahan’s observations, which are not limited to children, show that there are on average fewer than 1,000 accidental gun homicides per year.60 In comparison, there are roughly 3,500 drowning deaths per year.61

When looking specifically at the causes of death of children, the ratios are roughly similar. In 2010, children ages one to fourteen were more than three times as likely to die by unintentional drowning than by becoming the victims of a homicide by firearm.62 We stress, as does Professor Gary Kleck, that “[t]he point is not that guns are safe because they cause accidental death less often than” more familiar causes, such as drownings, but to provide a “meaningful point of reference.” 63

In contrast, when people make choices from familiar experiences, so called “decisions from experience,” they underweigh the probability of rare events.66 In other words, people will underweigh the risk of something they are familiar with—for example, death by drowning in a pool. After all, most people have been in a pool, seen a lifeguard, and are aware of the possibility of children drowning. But, they will overweigh the risk of something they only learn about from descriptions—such as media reports about death by firearm violence. These are rare tragedies that (thankfully) impact very few people personally.

Anyway, back to the smart guns. The problem with these high-tech gadgets is that many states have enacted laws that would criminalize the sale of non-smart guns once smart guns become commercially viable. As I noted in National Review in January:

This is not a laughing matter. In 2002, New Jersey enacted a law that said when “personalized handguns are available,” only smart guns could be sold in the Garden State. To date there simply hasn’t been a market for these weapons. However, as NPR reported, if federal agencies purchase these smart guns in large quantities, it would increase their availability nationwide and trigger the New Jersey law. Other states could enact similar laws to the Garden State’s and lead to a massive prohibition on all arms that are not smart.

And that is precisely the goal of encouraging law enforcement agencies to research and acquire these weapons–provide manufacturers with enough incentives to create them, thus triggering the smart-gun laws. But there is a wrinkle here. Police officers don’t want the guns for the same reason law-abiding gun owners don’t want them–they are not 100% reliable.

“Police officers in general, federal officers in particular, shouldn’t be asked to be the guinea pigs in evaluating a firearm that nobody’s even seen yet,” said James Pasco, executive director of the Fraternal Order of Police. “We have some very, very serious questions.”

Pasco said he’s already been vocal about his concerns in private conversations with administration officials and he plans to keep up the drumbeat even as he waits for an official announcement. …

Pasco compared the push for smart guns to the decision to limit local departments’ access to surplus military equipment.

“They sit down among themselves and decide what is best for law enforcement, but from a political standpoint, and then tell officers they’re doing it for their benefit,” Pasco said.

Of the 330,000 officers in his union, Pasco said, “I have never heard a single member say what we need are guns that only we can fire,” noting that there might be moments in close combat when an officer would need to use a partner’s weapon or even the suspect’s.

These same concerns apply equally to law-abiding gun owners who want a reliable firearm that can fire under less-than-ideal circumstances in short order.

There was an additional announcement buried at the bottom of the Politico piece:


Obama also ordered the Social Security Administration to start writing regulations that could bar some beneficiaries from buying a gun if they’ve been deemed mentally incapacitated. It could face a legal challenge, depending on the final wording, and advocates who work closely with the White House anticipate those details could come out on Friday, too.

This development is perhaps even more significant than the smart-guns initiative, because it can have the effect of disarming without due process millions of Americans on social security.


Update: NPR has a piece about why police want nothing to do with a smart gun:

ROSE: But almost right away, Zilkha discovered that the customers he imagined were not as enthusiastic as he was. Let’s start with police. Stephen Albanese is a retired New York City police officer.

For 20 years, it was his job to make sure the department’s guns worked like they were supposed to. Albanese says he and other officers weren’t sure they could trust smart guns to fire every time.

STEPHEN ALBANESE: I’ve had cops tell me that their worst nightmare is getting involved in a situation, pulling out that gun, pulling the trigger and hearing it go click.

The same principle applies to law-abiding citizens. Deciding to use lethal force for self-defense is a decision must be made in an instant. Hesitating too long because the gun won’t fire would prevent a person from defending himself.


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Apr 28, 2016

Roberts and Ginsburg argue about Scope of Dames & Moore, Which Roberts Possibly Wrote as Law Clerk

In Bank Markazi v. Peterson, the majority opinion by Justice Ginsburg, and the dissent by the Chief, spar over the relevance of Dames & Moore v. Regan. This debate is a particularly entertaining, because Roberts was clerking for Justice Rehnquist during the 8 days in which Dames & Moore was written. (I am willing to guess that at a young JRG had something to do with the opinion).

A young John Roberts is the first from the right.

In her majority opinion, RBG justified Section 8772 based on Dames & Moore:

In furtherance of their authority over the Nation’s foreign relations, Congress and the President have, time and again, as exigencies arose, exercised control over claims against foreign states and the disposition of foreign-state property in the United States. See Dames & Moore v. Regan, 453 U. S. 654, 673–674, 679–681 (1981) (describing this history). In pursuit of foreign policy objectives, the political branches have regulated specific foreign-state assets by, inter alia, blocking them or governing their availability for attachment. See supra, at 3–4 (describing the TWEA and the IEEPA); e.g., Dames & Moore, 453 U. S., at 669–674. Such measures have never been rejected as invasions upon the Article III judicial power. Cf. id., at 674 (Court resists the notion “that the Federal Government as a whole lacked the power” to “nullif[y] . . . attachments and orde[r] the transfer of [foreign-state] assets.”).

The Chief would have none of this, explaining Dames & Moore was limited only to the facts of that case.

The majority suggests that Dames & Moore supports the validity of §8772. But Dames & Moore was self- consciously “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U. S. 649, 669 (1944) (Roberts, J., dissenting). The Court stressed in Dames & Moore that it “attempt[ed] to lay down no gen- eral ‘guidelines’ covering other situations not involved here, and attempt[ed] to confine the opinion only to the very questions necessary to [the] decision of the case.” 453 U. S., at 661; see also American Ins. Assn. v. Garamendi, 539 U. S. 396, 438 (2003) (GINSBURG, J., dissenting) (“No- tably, the Court in Dames & Moore was emphatic about the ‘narrowness’ of its decision.”).

Oh, the good ‘ole “restricted railroad ticket” argument. That is, the ruling here only applies to this case, and nothing else. The Court tried a similar approach in Bush v. Gore, explaining that the decision should not be cited in any other contexts.

Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

I have called Bush v. Gore, as well as the cited language in Dames & Moore, an “unprecedent.” Of course, this admonition did not prevent Justice Thomas from citing Bush v. Gore in his solo dissent in Arizona v. Inter Tribal Council of Ariz., Inc. Nor did it prevent RBG from citing Dames & Moore here.

In a footnote, RBG replies to the Chief:

THE CHIEF JUSTICE correctly notes that the Court in Dames & Moore v. Regan, 453 U. S. 654, 661 (1981), urged caution before extending its analysis to “other situations” not presented in that case. Post, at 15. Much of the Court’s cause for concern, however, was the risk that the ruling could be construed as license for the broad exercise of unilateral executive power. See 453 U. S., at 688; American Ins. Assn. v. Garamendi, 539 U. S. 396, 438 (2003) (GINSBURG, J., dissenting). As §8772 is a law passed by Congress and signed by the President, that risk is nonexistent here. 

You see what is going on here? Roberts–who very likely wrote at least part of Dames & Moore–is telling everyone that the opinion ought to be read narrowly. Ginsburg–who is now in the majority–assures everyone that the risks young Roberts worried about are not present here–because we are dealing with a statute, rather than a unilateral executive action– so the Court can rely on Dames & Moore.

Roberts, in defense of the precedent he worked on three decades ago, marshals several more distinguishing points:

There are, moreover, several important differences between Dames & Moore and this case. For starters, the executive action Dames & Moore upheld did not dictate how particular claims were to be resolved, but simply required such claims to be submitted to a different tribu- nal. 453 U. S., at 660. Furthermore, Dames & Moore sanctioned that action based on the political branches’ “longstanding” practice of “settl[ing] the claims of [U. S.] nationals against foreign countries” by treaty or executive agreement. Id., at 679.

Roberts also argues that this statute amounts to “commandeering the courts.”

By contrast, no comparable history sustains Congress’s action here, which seeks to provide relief to respondents not by transferring their claims in a manner only the political branches could do, but by commandeering the courts to make a political judgment look like a judicial one. See Medellín v. Texas, 552 U. S. 491, 531 (2008) (refusing to extend the President’s claims- settlement authority beyond the “narrow set of circum- stances” defined by the “‘systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned’” (quoting Dames & Moore, 453 U. S., at 686)).

This is a phrase I developed in my article, State Judicial Sovereignty, where I discussed the commandeering of the state courts. Here, Roberts extends it to the commandeering of the federal courts.

A fascinating back-and-forth over an opinion Roberts no doubt takes pride in.

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Apr 27, 2016

A Near Record-Breaking Breyer Page in McDonnell v. U.S.

During oral arguments in McDonnell v. U.S., Justice Breyer nearly broke his own record with a 51-line Breyer page. Well technically, it was 40 consecutive lines. Then Michael Dreeben interjected “So–” Breyer continued with another 11 lines. I’m not sure how to count it. But in any event, it is still less than his 52-line soliloquy in U.S. v. Texas.

Update: On lines 12-13 of p. 33, I think there may be a typo. Justice Breyer likely meant “knotty” problem, rather than “naughty” problem. Although SGB”s hypos can sometimes be rather anughty. H/T Andrew Joseph on FB.



There were 44 lines in Hosannah-Tabor. In Bond, he spoke for 38 lines uninterrupted. 36 Lines in FERC v. Electric Power Supply Association. He went 32 lines in Medtronic v. Boston Scientific Corp. He had 35 lines in EPA v. EME Homer. In Franchise Tax Bd. of Cal. v. Hyatt, Justice Breyer spoke had 34 lines. Alas, only 27 lines in Zivotofsky.

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Apr 27, 2016

On (What Is Likely) His Last Day at #SCOTUS as Solicitor General, Verilli Moves for Admission of his Wife to Bar

Today was the last day of scheduled oral arguments during the October 2015 term–and what a wild term it has been! This was also (most likely) the last day of arguments with Solicitor General Donald Verrilli at the helm. As is the usual tradition, the SG steps down before the term begins in an election year. With this last opportunity to make a motion in a morning coat, Verrilli moved for the admission of his wife, Gail Laster.

Mark Walsh has the report:

When the Justices take the bench, there are a small number of lawyers to be admitted to the Supreme Court Bar. One of them is Gail Laster, the wife of U.S. Solicitor General Donald B. Verrilli, Jr. He makes the introduction of his wife, and as usually happens in such cases, everyone chuckles when he says he is satisfied that she has met the necessary qualifications.

What a great story!

Laster is currently the Director of the Office of Consumer Protection at the National Credit Union Administration.  She previously served as the General Counsel to the Department of Houston and Urban Development and as counsel to the Senate Judiciary and Labor and Human Resources Committees.


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Apr 27, 2016

The Chief Justice on the Separation of Powers and Judicial Independence in Bank Markazi v. Peterson

Few things animate the Chief Justice like encroachments–real or perceived–on the independence of the courts. His wide-ranging decision in Stern v. Marshall is a testament to his strong desire to guard Article III from Article I. Heck, he even used his annual report in 2011 to explain that Article III prohibited Congress from requiring that the Justices abide by the code of ethics. (Speaking of Article III, query whether that was an advisory opinion).

The Chief’s latest defense of Article III came in his dissent, joined by Justice Sotomayor, in Bank Markazi v. Peterson. The case arose from an effort by Congress to enable recovery from an Iranian bank, where pre-existing federal and state law would have precluded such a recovery. Congress enacted a statute that–in the words of Justice Ginsburg’s majority opinion–“‘sweeps away . . . any . . . federal or state law impediments that might otherwise exist’” to bar relief. For example, the bill eliminates sovereign immunity under the Foreign Sovereign Immunities Act of 1976, preempts New York law that would have prevented execution of judgment, and specifically allowed attachment only for this one docketed case.

The dissent argues that Congress was directing the outcome of this case, and this violated the separation of powers.

That question lies at the root of the case the Court confronts today. Article III of the Constitution commits the power to decide cases to the Judiciary alone. See Stern v. Marshall, 564 U. S. 462, 484 (2011). Yet, in this case, Congress arrogated that power to itself. … Contrary to the majority, I would hold that §8772 vio- lates the separation of powers. No less than if it had passed a law saying “respondents win,” Congress has decided this case by enacting a bespoke statute tailored to this case that resolves the parties’ specific legal disputes to guarantee respondents victory.

This is very similar to his opening in Stern v. Marshall, which charged that a Bankruptcy Court–not an Article III Court–assumed powers reserved for Article III courts:

Although the history of this litigation is complicated, its resolution ultimately turns on very basic principles. Article III, § 1, of the Constitution commands that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” That Article further provides that the judges of those courts shall hold their offices during good behavior, without diminution of salary. Ibid. Those requirements of Article III were not honored here.

The Chief’s opinion begins by providing a fascinating historical account of how the colonial legislature often assumed judicial functions.

Throughout the 17th and 18th centuries, colonial legis- latures performed what are now recognized as core judicial roles. They “functioned as courts of equity of last resort, hearing original actions or providing appellate review of judicial judgments.” Ibid. They “constantly heard private petitions, which often were only the complaints of one individual or group against another, and made final judg- ments on these complaints.” G. Wood, The Creation of the American Republic 1776–1787, pp. 154–155 (1969). And they routinely intervened in cases still pending before courts, granting continuances, stays of judgments, “new trials, and other kinds of relief in an effort to do what ‘is agreeable to Right and Justice.’” Id., at 155; see Judicial Action by the Provincial Legislature of Massachusetts, 15 Harv. L. Rev. 208, 216–218 (1902) (collecting examples of such laws).

These problematic proceedings led the Framers of the Constitution to distinctly separate the legislative and judicial powers (consistent with the teachings of Montesquieu).

The Revolution-era “crescendo of legislative interference with private judgments of the courts,” however, soon prompted a “sense of a sharp necessity to separate the legislative from the judicial power.” Plaut, 514 U. S., at 221. In 1778, an influential critique of a proposed (and ultimately rejected) Massachusetts constitution warned that “[i]f the legislative and judicial powers are united, the maker of the law will also interpret it; and the law may then speak a language, dictated by the whims, the caprice, or the prejudice of the judge.” The Essex Result, in The Popular Sources of Political Authority: Documents on the Massachusetts Constitution of 1780, p. 337 (O. Handlin & M. Handlin eds. 1966). In Virginia, Thomas Jefferson complained that the assembly had, “in many instances, decided rights which should have been left to judiciary controversy.” Jefferson, Notes on the State of Virginia 120 (Peden ed. 1982).  

The States’ experiences ultimately shaped the Federal Constitution, figuring prominently in the Framers’ deci- sion to devise a system for securing liberty through the division of power … Experience had confirmed Montesquieu’s theory. The Framers saw that if the “power of judging . . . were joined to legislative power, the power over the life and liberty of the citizens would be arbitrary.” Montesquieu 157. They accordingly resolved to take the unprecedented step of establishing a “truly distinct” judiciary. The Federalist No. 78, at 466 (A. Hamilton). To help ensure the “com- plete independence of the courts of justice,” ibid., they provided life tenure for judges and protection against diminution of their compensation.

The majority opinion references the Bill of Attainder Clause–as well as the class of one from Village of Willowbrook v. Olech (which I wrote about here)–but that clause no longer has any teeth after Nixon v. GSA.

The Bank’s argument is further flawed, for it rests on the assumption that legislation must be generally applic- able, that “there is something wrong with particularized legislative action.” Plaut, 514 U. S., at 239, n. 9. We have found that assumption suspect:

“While legislatures usually act through laws of gen- eral applicability, that is by no means their only legit- imate mode of action. Private bills in Congress are still common, and were even more so in the days be- fore establishment of the Claims Court. Even laws that impose a duty or liability upon a single individ- ual or firm are not on that account invalid—or else we would not have the extensive jurisprudence that we do concerning the Bill of Attainder Clause, including cases which say that [the Clause] requires not merely ‘singling out’ but also punishment, see, e.g., United States v. Lovett, 328 U. S. 303, 315–318 (1946), [or] a case [holding] that Congress may legislate ‘a legiti- mate class of one,’ Nixon v. Administrator of General Services, 433 U. S. 425, 472 (1977).” Ibid.27

27Laws narrow in scope, including “class of one” legislation, may violate the Equal Protection Clause if arbitrary or inadequately justi- fied. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (internal quotation marks omitted); New Orleans v. Dukes, 427 U. S. 297, 305–306 (1976) (per curiam).

Roberts responds with a boom: all of these safeguards would be meaningless if Congress could simply direct the courts how to resolve a case:

But such safeguards against indirect interference would have been meaningless if Congress could simply exercise the judicial power di- rectly. The central pillar of judicial independence was Article III itself, which vested “[t]he judicial Power of the United States” in “one supreme Court” and such “inferior Courts” as might be established. The judicial power was to be the Judiciary’s alone.

The Chief describes the law in question here as unprecedented–citing PCAOB–which denies it the regular sort of presumption of constitutionality.

There has never been anything like §8772 before. Nei- ther the majority nor respondents have identified another statute that changed the law for a pending case in an outcome-determinative way and explicitly limited its effect to particular judicial proceedings. That fact alone is “[p]erhaps the most telling indication of the severe consti- tutional problem” with the law. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U. S. 477, 505 (2010) (internal quotation marks omitted). Congress’s “prolonged reticence would be amazing if such interference were not understood to be constitutionally proscribed.” Plaut, 514 U. S., at 230.

With a citation to his mancrush, John Marshall, the current Chief explains that the line between the judicial and legislative functions is blurred, but that does not absolve the Court from enforcing it.

I readily concede, without embarrassment, that it can sometimes be difficult to draw the line between legislative and judicial power. That should come as no surprise; Chief Justice Marshall’s admonition “that ‘it is a constitu­ tion we are expounding’ is especially relevant when the Court is required to give legal sanctions to an underlying principle of the Constitution—that of separation of pow- ers.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 596–597 (1952) (Frankfurter, J., concurring) (quoting McCulloch v. Maryland, 4 Wheat. 316, 407 (1819)). But however difficult it may be to discern the line between the Legislative and Judicial Branches, the entire constitu- tional enterprise depends on there being such a line. The Court’s failure to enforce that boundary in a case as clear as this reduces Article III to a mere “parchment barrier[ ] against the encroaching spirit” of legislative power. The Federalist No. 48, at 308 (J. Madison).

Roberts closes with a citation of Justice Scalia’s passionate dissent in Morrison v. Olson (I still rank this as one of Scalia’s most important opinion) and a reference to Madison’s “impetuous vortex.”

At issue here is a basic principle, not a technical rule. Section 8772 decides this case no less certainly than if Congress had directed entry of judgment for respondents. As a result, the potential of the decision today “to effect important change in the equilibrium of power” is “immedi- ately evident.” Morrison v. Olson, 487 U. S. 654, 699 (1988) (Scalia, J., dissenting). Hereafter, with this Court’s seal of approval, Congress can unabashedly pick the win- ners and losers in particular pending cases. Today’s deci- sion will indeed become a “blueprint for extensive expan- sion of the legislative power” at the Judiciary’s expense, Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S. 252, 277 (1991), feeding Congress’s tendency to “extend[] the sphere of its activity and draw[ ] all power into its impetu- ous vortex,” The Federalist No. 48, at 309 (J. Madison).

When the separation of powers are at risk, the otherwise mild-mannered John Roberts hops into a phone booth and transforms to SuperChief!

I am glad Justice Sotomayor has joined this robust defense of the separation of powers. I hope this serves as a guiding precedent when other structural protections of the Constitution are at issue.

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Apr 27, 2016

Justice Thomas Schools Justice Breyer on Bill-of-Rights Texualism

In Heffernan v. City of Paterson, the Court held that a public employee cannot be punished based on the employer’s mistaken belief of the employee’s behavior. Specifically, a police officer cannot be demoted when his employer mistakenly thought he was associating with a political campaign–but he didn’t actually engage in that association. Justice Breyer wrote the majority opinion, with Justice Thomas, joined by Justice Alito in dissent.

Justice Breyer attempts to make a textualist argument to support his holding that a person does not actually have to exercise a First Amendment right in order for there to be a First Amendment violation:

We note that a rule of law finding liability in these circumstances tracks the language of the First Amendment more closely than would a contrary rule. Unlike, say, the Fourth Amendment, which begins by speaking of the “right of the people to be secure in their persons, houses, papers, and effects . . . ,” the First Amendment begins by focusing upon the activity of the Government. It says that “Congress shall make no law . . . abridging the freedom of speech.” The Government acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity. That which stands for a “law” of “Congress,” namely, the police department’s reason for taking action, “abridge[s] the freedom of speech” of employees aware of the policy. And Heffernan was directly harmed, namely, demoted, through application of that policy.

In other words, the First Amendments focuses on the activity of the government–irrespective of whether a right of free speech exists–while the Fourth Amendment focuses on protecting the right of the people to be secure in their persons. This is fundamentally wrong.

In his dissent, Justice Thomas takes Justice Breyer to school.

The majority tries to distinguish the Fourth Amendment by emphasizing the textual differences between that Amendment and the First. See ante, at 6 (“Unlike, say the Fourth Amendment . . . , the First Amendment begins by focusing upon the activity of the Government”). But these textual differences are immaterial. All rights enumerated in the Bill of Rights “focu[s] upon the activity of the Government” by “tak[ing] certain policy choices off the table.” District of Columbia v. Heller, 554 U. S. 570, 636 (2008); see also Hohfeld, Some Fundamental Legal Conceptions As Applied in Judicial Reasoning, 23 Yale L. J. 16, 30, 55– 57 (1913) (recognizing that an immunity implies a corresponding lack of power). Fourth Amendment rights could be restated in terms of governmental power with no change in substantive meaning. Thus, the mere fact that the First Amendment begins “Congress shall make no law” does not broaden a citizen’s ability to sue to vindicate his freedoms of speech and assembly.

A very famous constitutional scholar once described the Constitution as “charter of negative liberties. It says what the states can’t do to you. Says what the federal government can’t do to you but doesn’t say what the federal government or state government must do on your behalf.” Of course, that scholar’s name is Barrack Obama. And, this time at least, he is exactly right!

The first eight amendments of the Constitution are all restraints on government, no matter how they are styled. The Constitution does not grant people the rights of free speech, free exercise, the right to bear arms, or the freedom from searches and seizures. These rights pre-exist 1787. (I’ll table for a moment the discussion of whether these are the sorts of rights our creator endows us with). It makes no difference, as Justice Thomas explains, that the First Amendment is framed “Congress shall make no law” and the Fourth Amendment is framed in the passive voice that the right against “unreasonable searches and seizures, shall not be violated.” Both framings–in the active and passive voice–place limitations on the power of Congress to act.

Justice Breyer’s ill-conceived dicta–totally unnecessary to support an otherwise reasonable opinion–fundamentally misconceives the structure of the Bill of Rights. The Court should strike this paragraph before it makes its way into the U.S. Reports, lest it be relied on in different contexts to interpret the First or Fourth Amendments in a dangerous way.

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Apr 25, 2016

Thomas: “Williamson County has downgraded the protection afforded by the Takings Clause to second- class status.”

Today the Supreme Court denied certiorari in Arrigoni Enterprises v. Durham, a case that presented the question of whether to overturn Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City. Justice Thomas, joined by Justice Kennedy, dissented from the denial of certiorari, and both seemed primed not only to reconsider Williamson County, but overrule it.

As Thomas describes it, the one-two punch of Williamson County and San Remo Hotel v. San Francisco, make it effectively impossible for property owners to ever seek review in federal court for violations of the Takings Clause. Even worse, through strategic gamesmanship by the states, some plaintiffs are never able to obtain any review at all.

In Williamson County, the Court ruled that a plaintiff ’s allegation that local government action resulted in a taking is not “ripe” for review in federal court until the plaintiff “seek[s] compensation through the procedures the State has provided for doing so.” Id., at 194. In doing so, the Court superimposed a state-litigation requirement on the Fifth Amendment’s Takings Clause. As Members of this Court have noted, the Constitution does not appear to compel this additional step before a property owner may vindicate a Takings Clause claim. San Remo Hotel, L. P. v. San Francisco, 545 U.S. 323, 349 (2005) (Rehnquist, C.J., joined by O’Connor, KENNEDY, and THOMAS, JJ., concurring in judgment). …

Moreover, employing the rules announced in Williamson County and San Remo Hotel, clever state-government attorneys have rendered a nullity even the chance at review in state court. When a plaintiff files a suit in state court to exhaust his remedies as Williamson County in- structs, state-government entities and officials may re- move that suit to federal court under 28 U. S. C. §1441. Once in federal court, some state defendants have moved to dismiss on the ground that “the plaintiff did not litigate first in the state court.” Berger, supra, at 673. And some federal judges have dismissed the claims, rather than remanding them. See, e.g., Koscielski v. Minneapolis, 435 F. 3d 898, 903 (CA8 2007) (approving of the dismissal of a removed takings claim for lack of finished state-court procedures). This gamesmanship leaves plaintiffs with no court in which to pursue their claims despite Williamson County’s assurance that property owners are guaranteed access to court at some point.

Thomas and Kennedy would have granted certiorari, to avoid relegating the Takings Clause to “second-class status.”

Along these lines, Williamson County has downgraded the protection afforded by the Takings Clause to second- class status. Plaintiffs alleging violations of other enu- merated constitutional rights ordinarily may do so in federal court without first availing themselves of state court. But the same is not true for a Takings Clause plaintiff. The other “notable exception” is “for prisoner plaintiffs.” Samaha, On Law’s Tiebreakers, 77 U. Chi. L. Rev. 1661, 1722 (2010). We should consider overturn- ing Williamson County because there is “no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation.” Dolan v. Tigard, 512 U. S. 374, 392 (1994).

This echoes Justice Thomas’s dissent from denial of certiorari in December, where he implored the Court not to treat the Second Amendment as a “second-class right.”

“I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.”

The greatest ruse of Footnote Four is that the Court isn’t even consistent on giving heightened scrutiny to the enumerated rights–Second Amendment and Takings Clause among them–let alone unenumerated rights that are deemed “fundamental.” The Court should not be free to pick and choose which constitutional rights it likes, and accordingly give them greater protections.


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Apr 22, 2016

National Constitution Center Podcast: Is President Obama’s immigration policy against the law?

The National Constitution Center hosted a podcast with me and Christina Rodriguez (Yale) to discuss the oral arguments in U.S. v. Texas. My stirring closing arguments, with ample citations to Justice Jackson, begins around 41:00.

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Apr 21, 2016

More on Family Fairness

On Monday, I explained why the Solicitor General was misguided when he stated that that President Bush’s 1990 Family Fairness program was “extrastatutory.” In a post on Wednesday, Marty Lederman endorsed the Solicitor General’s arguments concerning the Family Fairness program. (He graciously cited our Cato Institute brief). At the ImmigrationProf Blog, Peter Margulies offers a response to Marty. (Peter was my co-author on amicus briefs on behalf of the Cato Institute in the Southern District of Texas and the Fifth Circuit). Here is Peter’s response to Marty’s position:

      Mention of the Immigration Act of 1990 highlights Marty’s stylized account of the Bush 41 Family Fairness program, which aided the spouses and children of 1986 Immigration Reform and Control Act (IRCA) legalization grantees. Marty cites the excellent Yale Law Journal article by Adam Cox and Cristina Rodriguez acknowledging that Family Fairness’s beneficiaries could obtain a lawful status under ordinary immigration law as IRCA grantees’ spouses and children, once those IRCA grantees became LPRs. However, Marty then second-guesses Cox and Rodriguez’s conclusion, asserting that IRCA grantees would have to wait a full five years for LPR status. Here, Marty falls victim to the same immigration gremlins who were at Monday’s argument, when the SG stated wrongly that asylees have no path to citizenship (they do; it’s five years from the grant of asylee status: see 8 U.S.C. § 1159(b)). In reality, pace Marty, IRCA grantees only had to wait a short one and a half years for LPR status. See id. § 1255a(b)(1)(A). That short time-frame, plus the 1990 Act’s huge increase in the numbers of visas for spouses and children of LPRs, set the stage for timely receipt of legal status by Family Fairness beneficiaries.   

One could argue that the 1990 Act was signed into law (in November of that year) after Family Fairness, and so is irrelevant to immigration officials’ power when Family Fairness was announced (in February of 1990). However, as our brief explains (pp. 18-19) that view fails to understand the nature of Congress’s delegation of discretion to immigration officials. At its heart, deferred action serves as a stay of removal, preserving the status quo when a change would be disruptive or inefficient and a legal status is within the beneficiaries’ reach. To this end, immigration officials rolled out Family Fairness against the backdrop of extraordinary legislative-executive collaboration on immigration reform, which contrasts with today’s impasse between the political branches.

Prior to Family Fairness’s roll-out, both the House and Senate had voted separately to bar deportation of the children and spouses of IRCA grantees. See Josh Blackman’s Georgetown Law Journal Online piece here (pp. 121-25). By February, 1990, the dispute between the House and Senate was solely about the cut-off date for entry into the U.S. of those children and spouses – some legislators wanted a 1986 cut-off date, while others pressed for a later date that would shield more people. Informed observers, including immigration officials, knew that Congress would resolve this issue, and enact relief for this class. In the interim, rushing to deport children and spouses who already had a path to a legal status under existing immigration law seemed both harsh and disruptive. After all, those spouses and children would be able to obtain visas within a short period of time regardless, particularly when officials factored in the likelihood of further legislative immigration reform.

There is a certain irony that the Solicitor General has to effectively argue that what President George H.W. Bush was “extrastatutory,” without any reference to congressional acquiescence, in light of the government’s usually broad understanding of that doctrine.

The key element concerning Family Fairness, as well as other deferred action programs, is that they served as a bridge for someone who would imminently receive lawful status by operation of law. As far as I can tell, I was the first to advance this “bridge” approach in the Georgetown Law Journal Online in January 2015. Here is the crux of the argument:

As OLC correctly noted, one of the best measures of the lawfulness of DAPA is its consistency with prior incidences of congressional acquiescence in deferred action pro- grams. OLC identified five prior exercises of deferred action for “certain classes of al- iens” that had been supported by Congress: deferred action for (1) self-petitioners under the Violence Against Women Act, (2) T and U visa applicants, (3) foreign students af- fected by Hurricane Katrina, (4) widows and widowers of U.S. citizens, and (5) Deferred Action for Childhood Arrivals (DACA).89 Based on this history, OLC opined that DAPA is consistent with the scope and intent of these prior programs.

The facts do not support this conclusion. The scope of Congress’s acquiescence in the Executive’s use of deferred action is far more constrained than the OLC opinion suggests. In the first four incidences of deferred action, all of which were sanctioned in one way or another by Congress, one of two qualifications existed: (1) the alien had an existing law- ful presence in the U.S., or (2) the alien had the immediate prospect of lawful residence or presence in the U.S. In either circumstance, deferred action acted as a temporary bridge from one status to another, where benefits were construed as immediately arising post-deferred action. These conditions bring the deferred action within the scope of con- gressional policy. However, neither limiting principle exists for the fifth instance of de- ferred action, DACA, or its close cousin, DAPA.

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by the IRCA.141 Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.142 This temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. It made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.143 On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990, though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”144 It ultimately passed by a vote of 231 to 192, with 45 Republi- cans voting yea and 65 Democrats voting nay.145 Despite disagreements about the eco- nomics of the bill, the Times reported, “few dispute the humanitarian aim of uniting fami- lies.”146

In the interim, between the Senate vote in July of 1989 and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a  process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy147 to expand the de- ferral of deportations of roughly one hundred thousand—not one and a half million (as reported in the OLC opinion)148—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigra- tion Act of 1990. On signing the law, the President said it “accomplishes what this Ad- ministration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”149 With the signing of the law, the Family Fair- ness policy immediately become moot—exactly what the President had in mind by tem- porarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together fami- lies, in consonance with congressional policy. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”150 Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking historical parallel to today’s immigration challenges,”151 the Family Fairness policy teaches just the opposite lesson. Presidents Reagan and Bush deferred deporta- tions for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for par- ents of citizen children—who may need to wait up to twenty-one years to petition for a visa—and parents of LPRs—who will never be able to petition for a parental visa.

In short, Family Fairness served as a bridge—a very temporary one—until Congress could complete the legislative process. President George H.W. Bush’s short-lived volun- tary departure program was connected to the IRCA and sandwiched between the Senate and House voting on a bipartisan bill. As Professor Margulies explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that re- lief.”159

I am glad that this argument has proved helpful, as both Texas and the U.S. House of Representatives have endorsed the bridge/pathway analysis of past exercises of prosecutorial discretion.

Erin Murphy cited these examples during arguments:

MS. MURPHY: There’s really ­­ there’s only about four deferred action programs that were class­based. Those all were path to lawful status. U visas, T visas, people who held F1 visas during Hurricane Katrina

As did Scott Keller:

MR. KELLER: Well, Justice Kagan, we have multiple arguments. The first is a statutory argument.  And our backup argument, which is a response to the  Executive’s congressional acquiescence argument, is that at most, Congress would have acquiesced to a practice of very small uses that were bridged.

If there was no previous lawful status or an [imminent] lawful status, there’s no way Congress has acquiesced to that.

I also addressed the Solicitor General’s “Saving Construction” request at National Review.

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Apr 21, 2016

But OLC Told Me I Could Do It!

One of the more surprising exchanges during oral arguments in U.S. v. Texas came from the usually-demure Chief Justice, who quoted President Obama’s statements that he lacked the authority to take the actions he ultimately took in DAPA.

CHIEF JUSTICE ROBERTS: When he announced ­­when he announced ­­ the President announced DACA, the predecessor provision, he said that if you broadened it this is a quote, “Then, essentially, I would be ignoring the law in a way that I think would be very difficult to defend legally.” What was he talking about?

Solicitor General Verrilli answered that at the time President Obama made those statements, he didn’t know he had the authority, but after checking with OLC, said “I’ve got the power!

GENERAL VERRILLI: And then ­­ and then second, the other thing is, you know, maybe he thought he couldn’t extend it at that time to DAPA. But, you know, what happened here is that the President and the Secretary went to the Office of Legal Counsel and asked for an opinion about the scope of their authority to ­­ to ­­ the scope of this discretionary authority, and they got one. And they exercised it consistently with that and up to the limits of that and no further. And so, you know, I do think whatever the President may have met ­­ meant, we went through that process, we came to that conclusion, and we ­­ and acted

This account of the relationship between the President and OLC is, well, sanitized. Charlie Savage explains the dynamics in “The Power Wars,” which I excerpted here.

By June 2014, it was clear that Congress would not enact any immigration reform before Obama’s presidency was over. Vowing to do as much as he could to fix the system without Congress, Obama asked for options. His policy-decision process, characteristically, was heavily legalized. In meeting with immigration advocacy groups, Obama would point to Neil Eggleston, his new White House counsel, and tell them, “I’m going to go as far as he says I can.” Eggleston, in turn, conferred with Karl Thompson, the new acting head of the Office of Legal Counsel.

This comports with a November 2014 article in the Times where DHS Secretary Jeh Johnson worked to use “our legal authorities to the fullest extent.” At each juncture, the President told Johnson to keep pushing farther.

In the meantime, Mr. Johnson’s review of the president’s legal authority was supposed to help resolve the issue. But his first attempt in May was a disappointment, White House officials said, because in the president’s view, he did not go far enough. The effort only sought to modify the guidance for immigration agents, and did not provide work permits or directly shield anyone from deportation.

And yet, with Republicans still struggling to move forward, the president’s Democratic allies on Capitol Hill reminded him that even Mr. Johnson’s tepid suggestions would probably derail any hopes for legislation.

Mr. Obama told Mr. Johnson to try again, and then announced that he would delay the results of the review until the end of the summer, hoping to give Mr. Boehner one last chance for action.

Politico offered a similar report:

Obama and Johnson, as well as their staffs, traded draft memos and ideas for months. By one count, they produced more than 60 iterations of the proposals. Johnson’s aides would draft something, then shoot it over to Eggleston and Munoz to examine and return with revisions.

What is true is that the Eggleston did not overrule OLC, which told him that deferred action could not be granted to the parents of DACA beneficiaries. But the picture Verrilli paints is somewhat backwards. Roberts, a former executive branch lawyer, knows exactly how these sorts of things work.

I’ll leave aside for now the charges against the Office of Legal Counsel in recent years, as the President has expressly ignored their advice when it wasn’t what he wanted to hear (See Libya and D.C. Voting Rights).

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Apr 21, 2016

With Friends Like These…

Shortly after Texas challenged the legality of DAPA, three “Jane Does”–aliens who stood to benefit from the policy–moved to intervene in the proceedings. The District Court denied their motion to intervene, but the 5th Circuit (to my surprise) reversed. After certiorari was granted, the intervenors filed top-side briefs. The Court granted Texas’s motion to expand argument time, and the House of Representatives got 15 minutes. For reasons I do not fully understand, the United States gave 10 minutes to the Jane Doe intervenors.

As far as I can tell, the intervenors added nothing that helped the government’s case, and indeed in several spots, actually harmed the government’s case.

With respect to standing, the government argued that Texas could change its law to deny driver’s licenses to DAPA beneficiaries. Chief Justice Roberts asked Solicitor General Verrilli if the government would sue Texas if it enacted such a law, based on preemption concerns. Verrilli hemmed and hawed, and refused to commit.

CHIEF JUSTICE ROBERTS: Well, but if ­­ if they change that policy to avoid the injury that they allege, in other words, if they did not confer ­­ offer driver’s licenses to those who are lawfully present  because of your policy, avoided that injury, you would sue them, wouldn’t you?

GENERAL VERRILLI: I’m not sure at all that we would sue them. It would depend on what they did.

Roberts explained that this puts Texas in a “real catch 22” because if you’re “injured, you have standing. But you’re not injured because you can change your policy and not  give driver’s license to these people.” But then you’ll get sued!

Alito asked the question again, clearly.

JUSTICE ALITO: And if you’re going to make the argument that they lack standing because they have a viable legal option, I think you have to tell us whether, in the view of the United States, it would be lawful for them to do that. I think the Chief Justice asked you that question before, and you didn’t get a chance to answer it. Maybe you could answer it now.

Verrilli again dodged the question.

Justice Kennedy also seemed to suggest that such a law would be preempted:

JUSTICE KENNEDY: But suppose ­­ suppose the State of Texas said this policy that the government has announced is invalid; it violates separation of powers; therefore, we will not issue licenses to this class of persons? . . . It seems to me that the Federal government could say this is not for you to say.

Verrilli held the line, and wouldn’t give up the key concession–which was the correct advocacy tact.

But when the lawyer for the intervenors approached the lectern, he did not hold the line.

CHIEF JUSTICE ROBERTS: Do you think it would be illegal if Texas adopted a policy saying everyone lawfully present in Texas except people subject to DAPA get a driver’s license?

MR. SAENZ: I think it would be, in candor, subject to a challenge that would revolve around the circumstances and the reasoning behind that new legislation.

I appreciate Mr. Saenz’s candor, but this answer did not help the case. But then it got worse.

Later in response to a similar question from Justice Sotomayor, Saenz added that not only would there be preemption issues, but “There would be equal protection claims.” Justice Kagan followed up on this:

JUSTICE KAGAN: Do I take it from the way you are phrasing this that you actually think that the equal protection concerns would be more serious than the preemption concerns?

MR. SAENZ: I think it depends on the circumstances of how Texas is to make its decision.

This, again is not helpful, because it bolsters the Chief Justice’s Catch 22 hypothetical. Not only are their statutory problems, but also constitutional problems! Not helpful. Texas is indeed between a rock and a hard place.

Later, Justice Alito asked Mr. Saenz if his organization would sue an employer who would not hire a DAPA recipient. Saenz, in candor, said yes–and his group has filed such suits before!

JUSTICE ALITO: If an employer took the position that the employer was not going to hire a DAPA beneficiary because the employer believes that they are not ­­ that they are not lawfully authorized to work, would prefer someone else over them, could that person sue on any theory of discrimination, for example, under Section 1981?

MR. SAENZ: They could, Your Honor. And ­ and the outcome of that case, I think, has not been clearly established by precedent so far.

JUSTICE ALITO: If that’s true then, DAPA gives them a legal right. It’s more than just putting them in a low­priority prosecution status.

JUSTICE ALITO: What is ­­ but what is your position on that?

MR. SAENZ: Our position would be that it is something to be litigated. In fact, to be ­­ in all  candor, we have litigated it to a settlement.

Again, I appreciate Mr. Saenz’s  candor, but this doesn’t move the ball forward. This is directly in contrast with a statement Solicitor General Verrilli made during his rebuttal.

Additionally, Justice Breyer asked Mr. Saenz if there was a political valence to this case.

JUSTICE BREYER: Is there any other reason that’s in this record, such as ­­ we could imagine other reasons. Is there any serious effort to rest their claim? We don’t want to give them licenses on anything other than money?

MR. SAENZ: Yes, Your Honor.


MR. SAENZ: Governor Abbot has indicated that, in the record ­­

JUSTICE BREYER: In the record here.

MR. SAENZ: Yes, it’s in the record here, I believe, Your Honor, that, in fact, this is a political dispute. They do not agree with the policy adopted by the Administration, though they have conceded in this case that it is within the Executive’s discretionary authority.

JUSTICE BREYER: You’re talking about in general. I’m focusing on the narrow question of how Texas is hurt, specifically, not a political  disagreement. How are they specifically hurt by giving these people driver’s licenses?

This was not the answer Justice Breyer was looking for, and I think unnecessarily injected a partisan element in the case.

I’m not sure what dividing argument time gave the Solicitor General.

Generally, I don’t get the point of the intervenor’s briefs. If the Jane Does argue that DAPA is some sort of temporary, discretionary relief that can be rescinded at any point, then how is this something they can restructure their lives on to come out of the shadows? Of course they know that the relief will not be rescinded, but that cuts against the ephemeral nature of DAPA relief.



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Apr 20, 2016

New in National Review: Obama Asks #SCOTUS to Rewrite His Immigration Policy

National Review has published my reflection on oral arguments in U.S. v. Texas, where the government urged the Court to rewrite DAPA with a “red pencil.” The Court should not apply a saving construction to a unilateral policy the President can modify himself. Unlike Obamacare, Congress did not enact this. Here is the introduction:

With the Supreme Court poised to rule against President Obama’s executive actions on immigration, his lawyers have once again asked the justices to save the policy by rewriting it. In 2012 and 2015, the Court rewrote key provisions of Obamacare — “penalty” means tax, and “state” means federal — to avoid unraveling a democratically enacted law that was of great social import. Having worked twice before to get the Court to rewrite legislation, the government is now trying a third time: It has asked the justices to alter Obama’s immigration policy by using a “red pencil” to salvage it. The Court should not take the bait. While the judicial branch owes some duty to Congress to find ways to uphold statutes, the Justices have absolutely no obligation to rewrite the President’s unilateral executive actions to save them. If the policy is flawed, nothing prevents the executive branch from bringing it into compliance with the law. It is not the job of the courts to bail the President out of a jam of his own making.

Critically, twistifications and saving constructions–to the extent that they are ever appropriate–are warranted for democratically-enacted statutes, not unilateral executive actions.

Further, the rationales underlying the Court’s twistifications to save Obamacare in 2012 and 2015 are simply not present here. The Affordable Care Act was a statute enacted by Congress, the democratically elected branch that the Constitution vests with the power to write laws. The Court’s duty to avoid invalidating acts of Congress is premised on the legislature’s role in our separation-of-powers system, and on its democratic accountability to the voters. None of these factors compel the Supreme Court to rewrite DAPA.

If the policy is so troubling, then Secretary Johnson can change the memo himself:

Finally, if the DAPA memorandum is so problematic, and it should not have awarded “lawful presence,” absolutely nothing is stopping the president from issuing a new policy. During oral arguments, Justice Kagan stated, “It’s [the government’s] memorandum.” That’s exactly right. The government gets to interpret it or rewrite it whenever they wish. The Department of Homeland Security could have issued a new policy — minus “lawful presence” — in February 2015 after a federal court put DAPA on hold. Or they can do so now. Absolutely nothing prevents them from doing so. Secretary Johnson — who was sitting in the first row of the Court’s gallery — could have signed a new memorandum on the spot, deleting the “lawfully present” language. The executive branch does not need the Court to do its dirty work. Or maybe the government is telegraphing what it will do if it loses this case — simply reissue the exact same memorandum, absent the phrase “lawfully present” — so it can implement the policy before the election. If this is indeed the plan, the Supreme Court should make clear that this further evasion of the separation of powers won’t work.

I don’t know if the Court has ever been asked to rewrite an executive-branch memorandum that the executive branch could rewrite itself.

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Apr 20, 2016

Supplemental Reply Brief for Petitioners in Zubik v. Burwell #SCOTUS

You can download it here. I will have commentary soon.

Update: The brief of the United States is here.

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Apr 20, 2016

Update on Amicus Brief in U.S. v. Texas

While preparing an article for National Review on the oral arguments in U.S. v. Texas, I realized I included an erroneous citation on p. 28 of the amicus brief I co-authored for the Cato Institute and Professors Jeremy Rabkin and Randy Barnett. Today, Ilya Shapiro (counsel of record) served the Clerk of Court and counsel with a letter notifying them of the mistake. Here is the content of the letter:

Re: Brief Amici Curiae for the Cato Institute et al., United States v. Texas, No. 15-674

Dear Mr. Harris,

It has come to my attention that Cato’s brief in the above-referenced case has an erroneous citation that is worth correcting, out of my duty of candor to the Court, because it relates to an important point that is otherwise unsupported.

In our brief on page 28, we have the following sentence:

After the president announced the program, the House of Representatives resolved that the executive action was “without any constitutional or statutory basis.” Preventing Executive Overreach on Immigration Act of 2015, H.R. 38, 114th Cong. (2016), available at

That citation is incorrect. The resolution that passed the House was the Preventing Executive Overreach on Immigration Act of 2014 (, not the 2015 version. Accordingly, the citation should read: Preventing Executive Overreach on Immigration Act of 2014, H.R. 5759, 113rd Cong. (2016), available at

While the error may seem trivial, the citation that currently appears references a bill that never made it out of committee and so cannot stand for the proposition that Congress repudiated DAPA. This all of course relates to the Take Care Clause issue that the Court added to the cert. grant—specifically Youngstown’s third tier of presidential authority, when executive power is at its nadir because it goes against congressional policy.

Please accept my apologies for the error and any resulting confusion.


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