Mar 26, 2015

Comparing the Federal RFRA and the Indiana RFRA

Yesterday, Indiana Governor Mike Pence signed into law a Religious Freedom Restoration Act (RFRA). One of the only posts I’ve seen that attempts to look at the language of the new law is from Professor Friedman at the Religion Clause Blog. He identifies three ways that the Indiana RFRA deviates from the federal RFRA.

The Indiana General Assembly yesterday gave final approval to Senate Bill 101, the Indiana Religious Freedom Restoration Act. (full text).  The bill is broader than its Federal counterpart in several ways.  [1] It explicitly protects the exercise of religion by entities as well as individuals.  Its enumeration of entities includes “a corporation”, without limiting this to closely-held companies.  [2] The bill’s protections may be invoked when a person’s exercise of religion is “likely” to be substantially burdened by government action, not just when it has been burdened.  [3] The bill also permits the assertion of free exercise rights as a claim or defense in judicial or administrative proceedings even if the government is not a party to the proceedings. The relevant governmental entity has a right to intervene in such cases to respond to the RFRA claim. A remedy under the bill is only available against the government; suits by employees or applicants invoking the law against private employers are precluded.

First, Section 7.3 of the law provides that it covers certain types of corporations:

(3) A partnership, a limited liability company, a corporation, a company, a firm, a society, a joint-stock company, an unincorporated association, or another entity that:
(A) may sue and be sued; and
(B) exercises practices that are compelled or limited by a system of religious belief held by:
(i) an individual; or
(ii) the individuals;
who have control and substantial ownership of the entity, regardless of whether the entity is organized and operated for profit or nonprofit purposes.

Recall that the Dictionary Act, which applies to RFRA, defined a “person” as a “corporation.” Only Justices Ginsburg and Sotomayor dissented from this part of Hobby Lobby. In that decision, Justice Alito (roughly) defined a corporation protected by RFRA as a “closely-held” one. The language in Section 7.3 seems to do more or less the same. In almost all cases, if “the individuals” with “system of religious beliefs” have “control and substantial ownership,” then it would be closely held. This portion tracks the federal standard rather closely. I can imagine a situation where the majority shareholder of a public corporation has a system of religious beliefs and the public corporation invokes them. But that seems quite far-fetched–and not necessarily foreclosed by Hobby Lobby’s definition of “closely-held” either.

Second, Section 9 provides protections for “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened.” While it is true that the “is likely to” language does not appear in the federal RFRA, I don’t think it adds anything.  It’s effectively asking if there will be a likelihood of success on the merits. In the case of Hobby Lobby a pre-enforcement challenge was brought, claiming that they were likely to have a substantial burden. No burden was ever inflicted. I’m not sure what else the “likely” language adds.

Third, and most significantly, the law provides a defense in a private suit where the government is not a party.The Indiana RFRA offers the following language:

Sec. 9. A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding. If the relevant governmental entity is not a party to the proceeding, the governmental entity has an unconditional right to intervene in order to respond to the person’s invocation of this chapter.

In other words, the law provides a defense against a private discrimination suit. For example, Jill and Jane Doe sue a photographer for failing to photograph their wedding under a local non-discrimination ordinance. The photographer than raises the state RFRA as a defense. Even though the government is not a party, RFRA can be raised as a defense in the judicial proceeding. The court would have to determine whether the application of the non-discrimination ordinance substantially burdens the photographers exercise of religion.

Does the federal RFRA also provide a defense? It depends on what Circuit you’re in. Shruti Chaganti writes in the Virginia Law Review about this split.

The circuits are split as to whether RFRA can be claimed as a defense in citizen suits—suits solely between private citizens in which the government is not a party. This split is based on an ambiguity in the text: whether the phrase “and obtain appropriate relief against a government” is meant to limit the set of cases in which a “claim or defense” may be raised in a judicial proceeding, or whether the phrase simply signifies an additional right upon which a litigant may rely.

Some circuits (CA2, CA9, CA8, CADC) hold that RFRA can be raised as a defense:

Some circuits (hereinafter “defense circuits”) have allowed RFRA to provide a defense in citizen suits, finding the statute’s language and purpose sufficiently broad to create a defense regardless of the parties to the suit.7 Under this reading, an unambiguous version of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief (including against a government).”8 This reading makes clear that relief against a government is merely an additional right—a subset of the more generally obtainable relief under RFRA. Thus, “claim or defense in a judicial proceeding” is freestanding and not limited by the “obtain relief” phrasing.

It is noteworthy that then-Judge Sotomayor dissented on this issue for the Second Circuit in Hankins v. Lyght (2nd Cir. 2006), holding that RFRA could not be raised as a defense. Sotomayor dissented, and wrote “the statute does not apply to disputes between private parties.”

RFRA by its terms does not apply to suits between private parties.

Two provisions of the statute implicitly limit its application to disputes in which the government is a party. Section 2000bb-1(c) states that “[a] person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). In the majority’s view, we should read this provision as “broadening, rather than narrowing, the rights of a party asserting the RFRA.” Maj. Op. at 103. This interpretation would be questionable even if Section 2000bb-1(c) were the only provision of the statute affecting the question of whether RFRA applies to private suits. When read in conjunction with the rest of the statute, however, it becomes clear that this section reflects Congress’s understanding that RFRA claims and defenses would be raised only against the government. For instance, section 2000bb-1(b) of RFRA provides that where a law imposes a substantial burden on religion, the “government” must “demonstrate[] . . . that application of the burden” is the least restrictive means of furthering a compelling governmental interest (emphasis added). The statute defines “demonstrate” as “meet[ing] the burdens of going forward with the evidence and of persuasion.” 42 U.S.C. § 2000bb-2(3). Where, as here, the government is not a party, it cannot “go[] forward” with any evidence.[8] In my 115*115view, this provision strongly suggests that Congress did not intend RFRA to apply in suits between private parties.[9]

All of the examples cited in the Senate and House Reports on RFRA involve actual or hypothetical lawsuits in which the government is a party. See S. Rep. No. 103-111 (1993); H.R. Rep. 103-88 (1993). The lack Of even a single example of a RFRA claim or defense in a suit between private parties in these Reports tends to confirm what is evident from the plain language of the statute: It was not intended to apply to suits between private parties.

This could prove interesting if this issue comes before the Court.

Other circuits (CA6, CA7) do not permit private defendants to raise RFRA as a defense in private suits.

Other circuits (hereinafter “nondefense circuits”) have held that the language in the judicial relief section and in the remainder of the statute suggest that RFRA meant to provide a defense only when obtaining ap- propriate relief against a government and therefore cannot apply to suits in which the government is not a party.9 A nondefense view of the text would be modified to say, “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government and may obtain appropriate relief.”10 By moving the “ob- tain relief” phrase to the end of the sentence, this rewriting clarifies that “government” is meant to limit the types of cases in which a “claim or defense” can be asserted. This modification limits applicability of RFRA to only those suits in which a claim or defense is raised against a gov- ernment party, thus excluding a defense in citizen suits.

And wouldn’t you know it, Judge Posner wrote the leading 7th Circuit precedent holding RFRA can’t be raised as a defense. Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1042 (7th Cir. 2006).

RFRA is applicable only to suits to which the government is a party. See 42 U.S.C. §§ 2000bb-1(b), (c); Worldwide Church of God v. Philadelphia Church of God, Inc., 227 F.3d 1110, 1120-21 (9th Cir.2000)Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 834-35 (9th Cir.1999). “A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government.” 42 U.S.C. § 2000bb-1(c).

It is hardly to be imagined, moreover, that in seeking to broaden the protection of religious rights, Congress, dropping nary a hint, wiped out a long-established doctrine that gives greater protection to religious autonomy than RFRA does. Indeed a serious constitutional issue would be presented if Congress by stripping away the ministerial exception required federal courts to decide religious questions.

Judge Sykes did not dissent on 7th Circuit panel. And Judge Sutton did not dissent on Judge Moore’s opinion for CA6.

In the Elane Photograph case, the New Mexico Supreme Court, interpreting its own RFRA, ruled that it could only be invoked when the government was a party, but not when private parties were sued by state law. The Indiana bill makes clear that the defense can be raised in any case, as have four courts of appeals covering nearly half the states in the Union.

Interestingly, as noted in this amicus brief by the Becket Fund in the Elane Photography case, DOJ has taken the position that RFRA can be raised as a defense in lawsuits brought by private parties:

In response, the United States has formally taken the position that religious organizations can assert RFRA as a defense in lawsuits brought by private parties: “[I]f plaintiff were sued by a plan participant or beneficiary in the future, plaintiff, in its defense of such an action, would have an opportunity to raise its contention that the contraceptive coverage requirement violates the Religious Freedom Restoration Act (‘RFRA’).” Reply in Support of Motion to Dismiss at 3-4, Wheaton Coll. v. Sebelius, No. 12-01169 (D.D.C. Aug. 20, 2012).

So the most controversial aspect of the Indiana law was endorsed by the Holder Justice Department. [Update: I should stress that at the time, DOJ limited the applicability of RFRA to “religious organizations,” such as Wheaton College. But following Hobby Lobby this position is no longer tenable.]

There here we have it. Indiana, as well as Arizona’s RFRAs are very similar to the Federal RFRA. In contrast, Mississippi’s RFRA, which only requires a “burden,” not a “substantial” one, deviates significantly from the federal statute.

I should stress–and this point was totally lost in the Indiana debate–that RFRA does not provide immunity. It only allows a defendant to raise a defense, which a finder of fact must consider, like any other defense that can be raised under Title VII or the ADA. RFRA is *not* a blank check to discriminate.

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Mar 26, 2015

Obamacare at Five Years

Blogging and writing a book are very different enterprises. A blog post is an immediate, visceral reaction to a new story. The book is a delayed, retrospective reaction to events in the past. Writing a book about a current topic, such as Obamacare, blends the two. I have to provide the sort of daily analysis that I provide as a blogger, with the 30,000 foot perspective of a novelist. It isn’t easy, and something I hope to improve from Unprecedented to Unraveled.

The 5th Anniversary of the signing of Obamacare presents just such an opportunity. This week has been a flurry of activity. Ted Cruz announced his presidency, promising to repeal “every word” of the ACA. Press Secretary Josh Earnest reminded us that Mitt Romney made the same promise. Then Ted Cruz announced that he would probably be signing up on Obamacare. Then Justice Kennedy made comments that may (or may not) implicate King v. Burwell. At the moment, all of these events may be relevant in the long run, or may not be. It’s too early to tell for sure, but I’ll likely have to make that judgment prematurely for the book.

One event that happened this week, that will almost certainly make the book, is the President’s remarks on the fifth anniversary of the ACA. Always read the transcript of these remarks, rather than the press accounts.

In fact, just five years in, the Affordable Care Act has already helped improve the quality of health care across the board. … It’s making health coverage more affordable and more effective for all of us.  And in a lot of ways, it’s working better than many of us, including me, anticipated.  (Laughter.)

The President rattled off some of the key benefits of the law:

If you don’t have health insurance, you can go online to the marketplace and choose from an array of quality, affordable private plans.  Every governor was given the option to expand Medicaid for his or her citizens, although only 28 have chosen to do so — so far.  But after five years of the ACA, more than 16 million uninsured Americans have gained health care coverage — 16 millionIn just over one year, the ranks of the uninsured have dropped by nearly one-third — one-third.

If you’re a woman, you can no longer be charged more just for being a woman.  And you know there are a lot of women.  (Laughter.)  Like more than 50 percent.  (Laughter.)  Preventive care, like routine checkups and immunizations and contraception now come with no additional out-of-pocket costs.

If you’re a young person, you can now stay on your parents’ plan until you turn 26.  And if you want to turn that new idea into a business, if you’re going to try different jobs, even a different career, you now have the freedom to do it because you can buy health care that’s portable and not tied to your employer.  Most people have options that cost less than 100 bucks a month.

If you’re a business owner — because when we put forward the Affordable Care Act, there was a lot of question about how it would affect business; well, it turns out employer premiums rose at a rate tied for the lowest on record.  If premiums had kept growing at the rate we saw in the last decade, then either the average family premium, paid by the family or paid by the business, would be $1,800 higher than it is today.  That’s 1,800 bucks that businesses can use to higher and invest, or that’s 1,800 bucks that stays in that family’s bank account, shows up in their paycheck.


Next, the President turned to explain that many of the fears over the law have not come to fruition.

If you’re a senior — more than 9 million seniors and people with disabilities have saved an average of $1,600 on their prescriptions, adding up to over $15 billion in savings.  There were fears promoted that somehow this was going to undermine Medicare.  Well, it turns out the life of the Medicare Trust Fund has been extended by 13 years since this law has passed. …

But the bottom line is this for the American people:  The Affordable Care Act, this law, is saving money for families and for businesses.  This law is also saving lives — lives that touch all of us. It’s working despite countless attempts to repeal, undermine, defund, and defame this law.

It’s not the “job-killer” that critics have warned about for five years.  When this law was passed, our businesses began the longest streak of private-sector job growth on record:  60 straight months, five straight years, 12 million new jobs.

It’s not the fiscal disaster critics warned about for five years.  Health care prices are rising at the slowest rate in nearly 50 years, which has helped cut our deficit by two-thirds since I took office.  Before the ACA, health care was the single biggest driver driving up our projected deficits.  Today, health care is the single biggest factor driving those projections down.

Next, with a bit of glee, the President faulted Republicans for all of their predictions, and the failure to provide an alternative.

I mean, we have been promised a lot of things these past five years that didn’t turn out to be the case:  death panels, doom.  (Laughter.)  A serious alternative from Republicans in Congress.  (Laughter.)

The budget they introduced last week would literally double the number of the uninsured in America.  And in their defense, there are two reasons why coming up with their own alternative has proven to be difficult.

First, it’s because the Affordable Care Act pretty much was their plan before I adopted it — (laughter) — based on conservative, market-based principles developed by the Heritage Foundation and supported by Republicans in Congress, and deployed by a guy named Mitt Romney in Massachusetts to great effect.  If they want to take credit for this law, they can.  I’m happy to share it.  (Laughter.)

And second, it’s because health reform is really hard and the people here who are in the trenches know that.  Good people from both parties have tried and failed to get it done for 100 years, because every public policy has some trade-offs, especially when it affects one-sixth of the American economy and applies to the very personal needs of every individual American.

And he did what evaded every President since TR. And he knows it–any change would result in people losing coverage.

On the other hand, for folks who are basing their entire political agenda on repealing the law, you’ve got to explain how kicking millions of families off their insurance is somehow going to make us more free.

Specifically, the President charges, how is fighting back Obamacare going to make us more free, give us more liberty?

Or why forcing millions of families to pay thousands of dollars more will somehow make us more secure.

For progressives, liberty and security is a state the government creates to ensure people do not want. The Solicitor General made this point forcefully in NFIB v. Sebelius.

Or why we should go back to the days when women paid more for coverage than men.  Or a preexisting condition locked so many of us out of insurance.


Ironically, the law was sold on a lie about people being able to keep their policies. Now, any changes that runs into cancellation notices will suffer even bigger political costs. (Stay tuned for the 2018 Cadillac Tax).

The President’s most striking remarks came at the end, when eh said that health care was “not a privilege, but a right.” This was a standard line from Senator Ted Kennedy.

Five years ago, we declared that in the United States of America, the security of quality, affordable health care was a privilege — was not a privilege, but a right.


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Mar 25, 2015

SCOTUS Rebuffs SG’s Request for Skidmore Deference to EEOC Guidance Issued *After* Cert Was Granted

In Young v. UPS, the Court rejected the positions of Young, UPS, and most importantly, the Solicitor General. In its brief, the SG urged the Court to grant Skidmore deference to EEOC Regulations.

The Solicitor General argues that we should give special, if not controlling, weight to this guideline. He points out that we have long held that “the rulings, interpreta- tions and opinions” of an agency charged with the mission of enforcing a particular statute, “while not controlling upon the courts by reason of their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944). See Brief for United States as Amicus Curiae 26.

Justice Breyer’s majority opinion soundly rebuffed this overture, finding the lack of “thoroughness” in the EEOC’s consideration’s “limit” its “power to persuade.

But we have also held that the “weight of such a judg- ment in a particular case will depend upon the thorough- ness evident in its consideration, the validity of its reason- ing, its consistency with earlier and later pronouncements, and all those factors that give it power to persuade, if lacking power to control.” Skidmore, supra, at 140. These qualifications are relevant here and severely limit the EEOC’s July 2014 guidance’s special power to persuade.

Specifically, the Court faults the EEOC for issuing the guidance *after* cert was granted.

We come to this conclusion not because of any agency lack of “experience” or “informed judgment.” Rather, the difficulties are those of timing, “consistency,” and “thor- oughness” of “consideration.” The EEOC promulgated its 2014 guidelines only recently, after this Court had granted certiorari in this case.

The Court stressed that the position taken after cert was granted was different from positions taken in the past.

In these circumstances, it is fair to say that the EEOC’s current guidelines take a position about which the EEOC’s previous guidelines were silent. And that position is inconsistent with positions for which the Government has long advocated. See Brief for Defendant-Appellee in Ensley-Gaines v. Runyon, No. 95– 1038 (CA6 1996), pp. 26–27 (explaining that a reading of the Act like Young’s was “simply incorrect” and “runs counter” to this Court’s precedents). See also Brief for United States as Amicus Curiae 16, n. 2 (“The Department of Justice, on behalf of the United States Postal Service, has previously taken the position that pregnant employees with work limitations are not similarly situated to em- ployees with similar limitations caused by on-the-job injuries”).


The government offers no explanation for this change of heart.

Nor does the EEOC explain the basis of its latest guidance. Does it read the statute, for example, as embodying a most-favored-nation status? Why has it now taken a position contrary to the litigation position the Government previously took? Without further explanation, we cannot rely significantly on the EEOC’s determination.

This creates a presumption that the regulation was issued for the purposes of this case.

This isn’t the first time the Court faulted the Solicitor General for changing the government’s position. A quick search of my archives (and I’m sure I’m missing some) reveals similar admonitions in Kiobel (arguments), Levin v. United States, and Myriad. Justice Scalia and the Chief comments during oral argument in Kiobel sums up the issue well:

JUSTICE SCALIA: — it was the responsibility of your predecessors as well, and they took a different position. So, you know, why — why should we defer to the views of — of the current administration?

GENERAL VERRILLI: Well, because we think they are persuasive, Your Honor.


CHIEF JUSTICE ROBERTS: Your successors may adopt a different view. And I think — I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.

GENERAL VERRILLI: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.

In any event, the SG is now on clear notice that the Court will not defer to these types of last-minute changes.

Walter Olson comments:

My other favorite bit came when the majority opinion smacked down the EEOC and the U.S. Department of Justice over the EEOC’s maximally liberal guidelines on pregnancy discrimination, which the commission hurriedly came out with last summer and which DoJ, through the Solicitor General, insisted were entitled to special weight before the Court. Writing for his liberal colleagues, Breyer rejected the guidelines on grounds of “timing, ‘consistency,’ and ‘thoroughness’ of ‘consideration,’” pointing out that they ran “contrary to the litigation position the Government previously took,” that they offered no coherent reading of the statute, and, pointedly, that the EEOC had put them out “only after the Court had granted certiorari in this case” – almost as if it had been trying to influence the Court.


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Mar 25, 2015

Disrespectful Dissents on the Roberts Court

At the end of Justice Scalia’s dissent in Alabama Legislative Black Caucus v. Alabama, he dropped the jurisprudential mic.

Accordingly, I dissent.

Much like Rodney Dangerfield, Justice Breyer’s majority opinion gets no respect. Justice Scalia is no stranger to the disrespectful dissent. A quick search on WestLaw for “I Dissent” with no “respect” since 2006 reveals a number of disrespectful dissents (this list is not complete):

  1. House v. Bell (2006) (Roberts, C.J., dissenting) (“The evidence as a whole certainly does not establish that House is actually innocent of the crime of murdering Carolyn Muncey, and accordingly I dissent.”
  2. Hamdan v. Rumsfield (2006) (Scalia, J., dissenting) (“For the foregoing reasons, I dissent.”).
  3. Uttecht v. Brown (2007) (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  4. Gonzales v. Carhart (2007) (Thomas, J., concurring) (“I dissent from the Court’s disposition.”).
  5. Crawford v. Marion County Election Bd (2008)  (Breyer, J., dissenting) (“For these reasons, I dissent.”).
  6. U.S v. Santos (2008) (Breyer, J., dissenting) (“In light of these alternative possibilities, I dissent.”).
  7. Boumediene v. Bush (2008) (Scalia, J., dissenting) (“The Nation will live to regret what the Court has done today. I dissent.”).
  8. Yeager v. U.S. (2008) (Scalia, J., dissenting) (“Because that result neither accords with the original meaning of the Double Jeopardy Clause nor is required by the Court’s precedents, I dissent.”).
  9. Ricci v. DeStefano (2009) (Ginsburg, J., dissenting) (“I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.””).
  10. Shady Grove Orthopedia v. Allstate Ins. Co. (2010) (Ginsburg, J., dissenting) (“Because today’s judgment radically departs from that course, I dissent.”).
  11. Michigan v. Bryant (2011) (Scalia, J., dissenting) (“Because I continue to adhere to the Confrontation Clause that the People adopted, as described in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), I dissent.”).
  12. Arizona v. United States (2012) (Scalia, J., dissenting) (“Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.).
  13. United States v. Windsor (2013) (Scalia, J., dissenting) (“But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.”).
  14. E.P.A. v. EME Homer City Generation (Scalia, J., dissenting) (“I dissent.”).
  15. Town of Greece v. Galloway (2014) (Breyer, J., dissenting) (“I dissent from the Court’s decision to the contrary.”).
  16. Burwell v. Hobby Lobby (2014) (Ginsburg, J., dissenting) (“Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.”)

In first place (surprising no one) is Justice Scalia with 8 disrespectful dissents (counting the Alabama case). Second place was Justice Breyer with 4. RBG had had 3. Thomas and the Chief each had one. The Chief’s dissent was in his first year on the Court! Interestingly, Justices Stevens, Souter, Alito, Sotomayor, and Kagan had zero. Again, my research was cursory, and I’m sure I missed some. Please feel free to add others in the comments.

Update: A note in the Harvard Law Review explores the “respectful dissent.”

The respectful dissent is the dominant speech act of the Roberts Court. According to Figure 2, this rhetoric manifested in nearly 70% of the individual principal dissenting opinions handed down during the 2005 to 2009 Terms, at one point rising to an impressive 83.7%. To give a more complete view of dissenting practice, however, this sec- tion focuses not on the default practice, but on those dissents that de- viate from the norm. Ultimately, this discussion of minority dissenting practices will add an important — and otherwise unseen — nuance to the legitimation rationale underlying the Court’s collegial dissents.

As Figure 2 demonstrates, there are two exceptions to the respect- ful dissent. First, there are the “assertive dissents” in which the pro- testing Justice writes only, “I dissent.”108 Here the Justice appropriates the traditional dissenting structure, but foregoes the respectful rhetoric.

Second, there is a broad category of “other,” which includes procedural statements,111 rhetorical variations on the speech act not couched in the language of dissent,112 and — as is sometimes the case — no speech act at all.113 As a threshold matter, the very existence and use of these alternative speech acts does not detract from — but rather adds to — the robustness of the respectful default. A dissenting re- gime without alternatives would be not only artificial, but also imprac- tical and unwise — impractical because not every conflict between dis- senter and majority need elicit a personal statement of disagreement114 and unwise because sustained, unthinking usage of the rhetoric of re- spect might obviate the effect of that speech act.115



And observations:

The implications for the collegial norm and the respectful dissent as legitimating tools are twofold. First, the choice to dissent assertively — to appropriate the form, but not the respectful rhetoric, of the dom- inant speech act — implicitly recognizes the respectful dissent’s ability to legitimate the majority decision. This idea rests on the intuitive claim that an assertive dissent is ultimately an act of protest, a signal from one Justice to the world at large that the majority opinion does not deserve legitimation — that the majority has acted impermissibly and produced significant costs for political society.124 It follows that if the dissenter believes that the use of “I dissent” is to deny or weaken the majority’s legitimacy, the inverse must also be true: to say “I res- pectfully dissent” is to convey legitimacy. In other words, the assertive dissenter has engaged — and therefore embraced — the positive bene- fits of collegial norms and the respectful dialogue through his choice of form and language. Second, this observation further suggests that the dissenting Justice believes that the Court’s legitimacy is, when he writes, relatively secure. If it were otherwise, the Court would not be able to sustain the occasional, vigorous criticism.

H/T Kedar Bhatia

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Mar 25, 2015

Breyer: SCOTUS Could Rely on Lodged Affidavit To Prove Standing; Scalia Dissents

During the standing debate over King v. Burwell, some argued that the challengers should file an affidavit with the Court to prove the plaintiffs still have standing. Was this even possible? In Alabama Legislative Black Caucus v. Alabama, Justice Breyer found that the Caucus had standing. But in doing so, he observed that if there were any doubts, the Court could rely on lodged affidavits parties to prove standing.

To be sure, the District Court had an independent obli- gation to confirm its jurisdiction, even in the absence of a state challenge. See post, at 4–5 (SCALIA, J., dissenting). But, in these circumstances, elementary principles of procedural fairness required that the District Court, rather than acting sua sponte, give the Conference an oppor- tunity to provide evidence of member residence. Cf. Warth v. Seldin, 422 U. S. 490, 501–502 (1975) (explaining that a court may “allow or [r]equire” a plaintiff to supplement the record to show standing and that “[i]f, after this opportu- nity, the plaintiff’s standing does not adequately appear from all materials of record, the complaint must be dismissed” (emphasis added)). Moreover, we have no reason to believe that the Conference would have been unable to provide a list of members, at least with respect to the majority-minority districts, had it been asked. It has filed just such a list in this Court. See Affidavit of Joe L. Reed Pursuant to this Court’s Rule 32.3 (Lodging of Conference affidavit listing members residing in each majority- minority district in the State); see also Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007) (accepting a lodged affidavit in similar circumstances). 

Rule 32.3 of the Court provides ways for parties to “lodge non-record material” with the Court:

3. Any party or amicus curiae desiring to lodge non-rec­ ord material with the Clerk must set out in a letter, served on all parties, a description of the material proposed for lodg­ ing and the reasons why the non-record material may prop­ erly be considered by the Court. The material proposed for lodging may not be submitted until and unless requested by the Clerk.

The Chief Justice cited this provision in Parents Involved to show that the members of the group still had standing:

This argument is unavailing. The group’s members have children in the district’s elementary, middle, and high schools, App. in No. 05–908, at 299a–301a; Affidavit of Kathleen Brose Pursuant to this Court’s Rule 32.3 (Lodging of Petitioner Parents Involved), and the complaint sought declaratory and injunctive relief on behalf of Parents Involved members whose elementary and middle school children may be “denied admission to the high schools of their choice when they apply for those schools in the future,” App. in No. 05–908, at 30a.

Justice Scalia, in his dissent, responds forcefully to this suggestion, claiming that Parents Involved concerned organizational standing, while the Caucus is showing individual standing:

The Court points to Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 718 (2007), as support for its decision to sandbag Alabama with the Democratic Conference’s out-of-time (indeed, out- of-court) lodging in this Court. The circumstances in that case, however, are far afield. The organization of parents in that case had established organizational standing in the lower court by showing that it had members with children who would be subject to the school district’s “integration tiebreaker,” which was applied at ninth grade. Brief for Respondents, O. T. 2006, No. 05–908, p. 16. By the time the case reached this Court, however, the youngest of these children had entered high school, and so would no longer be subject to the challenged policy. Ibid. Accord- ingly, we accepted a lodging that provided names of addi- tional, younger children in order to show that the organi- zation had not lost standing as a result of the long delay that often accompanies federal litigation. Here, by con- trast, the Democratic Conference’s lodging in the Supreme Court is its first attempt to show that it has members in the majority-minority districts. This is too little, too late.

I couldn’t read this without thinking about King v. Burwell. At this point, I imagine the Justices (RBG excepted) are satisfied that at least one Plaintiff in King v. Burwell has standing. But the Court may be putting litigants on notice in the future that any doubts about standing could be resolved under Rule 32.3. Rule 32.3 speaks of a party “desiring to lodge non-record material,” though I see no reason the Court couldn’t order such a lodging sua sponte.

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Mar 24, 2015

New in National Review: DAPA Is Not About National Security

On appeal to the 5th Circuit, the Obama Administration has pivoted, ever so slightly, in its defense of DAPA. Now, the government claims that DAPA is essential to national security, and that unless Judge Hanen’s order is put on hold, the government will be unable to secure the border and the homeland. In short, this argument is false. Absolutely nothing in Judge Hanen’s order prevents the government from taking these steps. No one must be deported. Rather, they are only prohibited from granting deferred action, which is accompanied by myriad benefits from work authorization to the earned income tax credit. This is the theme of my new piece in National Review. Here is the introduction:

Believe it or not, President Obama says his executive action on immigration isn’t actually about immigration — it’s about enhancing national security. In order to help Homeland Security agents quickly distinguish dangerous immigrants from those who pose no threat, the president had to grant, he claims, quasi-legal status to 5 million immigrants. Once the immigrants sign up, his argument goes, they will undergo background checks and receive a biometric ID, making it a lot easier for DHS agents to identify them. Oh, and by the way, because halting millions of deportations was not reason enough to coax immigrants to “come out of the shadows,” the president will approve virtually every single applicant for work authorization, Social Security benefits, and even the earned income-tax credit, as an “incentive” to sign up. It’s all part of keeping our nation secure. Remarkably, this is exactly how President Obama legally justifies his DAPA (Deferred Action for Parental Accountability) program.

This Rube Goldbergesque contortion of logic, premised on a “complete abdication” of the law, is the best defense the Justice Department can muster for why this policy should go into effect immediately. If you believe that this was the real reason behind DAPA — and not a scheme to implement an immigration policy that Congress expressly rejected — then I have a bridge to sell you. While Congress generally has broad latitude in choosing the means to accomplish legitimate policy goals, the executive, when acting unilaterally to disregard the law, should not receive such deference. This national-security smokescreen should be rejected by the courts.

While Congress can, under the necessary and proper clause, choose the means with which to accomplish certain ends, the President, when acting unilaterally in the absence of Congress, cannot pick and choose how he wants to set immigration policy. A point I didn’t make in the article, is the entire business of using work authorization as an “incentive” is the essence of setting policy, which is the prerogative of Congress. While Congress did authorize employment authorization for those with deferred action, this is NOT how Congress designed it. If memory serves, before DACA, roughly 5,000 people received deferred action annually. Then the number shot up to a million.

In the context of an injunction, the government will not be able to show the district court’s order prevents them from accomplishing the very tasks they set out to accomplish.

Since the seminal case of McCulloch v. Maryland, authored by Chief Justice John Marshall, Congress has had wide latitude when choosing how to accomplish its objectives: “If the end be legitimate, and within the scope of the Constitution, all the means which are appropriate, which are plainly adapted to that end, and which are not prohibited, may constitutionally be employed to carry it into effect.” In other words, courts defer to Congress when it chooses one approach over another to accomplish legitimate policy goals. But we should not lose sight of the fact that DAPA is not an act of Congress, but a unilateral exertion of executive power. Rather than representing the wisdom of Congress — the branch that can set policy — DAPA amounts to a brazen effort to rewrite the law in the president’s own image. The implausible “national security” argument — which is entirely at odds with anything Congress has ever thought of — solidifies the gap between the executive and the legislative branches. If Congress were to pass a statute that provided work benefits to undocumented immigrants to promote national security, some might doubt its efficacy, but the judiciary would have no license to question its wisdom. DAPA presents an entirely different calculus. To determine whether the president is adhering to his constitutional duty to “take care that the laws be faithfully executed,” we must determine whether the president is acting in good faith to comply with the laws, or deliberately deviating from them to achieve a contrary policy. The president’s own flimsy arguments in court, which crumble under the laxest scrutiny, demonstrate what DAPA is really about. The judiciary need not defer to this tendentious position, and should recognize it for what it is — a mere smokescreen to allow the president to write his own laws.

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Mar 24, 2015

5th Circuit Sets Oral Argument for DAPA Appeal for April 17

Today the 5th Circuit issued an order, setting oral arguments in Texas v. United States for April 17 in New Orleans.

The court will hear oral argument on the motion for stay pending appeal, as well as any other motions that may be pending by that time, on Friday April 17 at 10:00am in New Orleans. Each side will be allowed one hour for argument. Because, under the briefing schedule set forth above, the court will have the benefit of the appellants’ opening merits brief but presumably not the appellees’ merits brief, the appellees are permitted (but not required) to file, by April 14, a separate brief of not more than 6000 words, limited to responding to any matters addressed in the appellants’ opening merits brief that pertain to the motion for stay pending appeal.

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Mar 24, 2015

Did the 14th Amendment (1868) Nullify the “Natural Born Citizen” Clause (1789)?

A general principle of constitutional law is that later-in-time amendments modify earlier provisions. The classic example is the 3/5 Clause. The 14th Amendment nullified that provision, notwithstanding Dred Scott (Update: As Ed Whelan points out, the 13th Amendment eradicated the 3/5 clause, as there were no longer “other persons” to count once slavery was eradicated. Likewise, the express terms of section 2 of the 14th Amendment nullify the 3/5 clause). The 11th Amendment removed grants of jurisdiction in Article III where a state could be sued by a foreign citizen. The 12th Amendment modified how the President is selected. The 14th Amendment abrogated state sovereign immunity protected by the 10th Amendment. The 21st Amendment (thankfully) repealed prohibition under the 18th Amendment. And so on. No court cases were needed to invalidate these earlier provisions. The Court seems to have recognized that the clauses were struck by operation of Article V.

Of late, the “Natural Born Citizen” clause has been in the news. (Let’s put aside for the moment the statutory arguments concerning Ted Cruz.). The clause on its face is a classification on the basis of nationality at birth. Only those people who were born in the United States can run for President. This seems incompatible with the 14th Amendment.

Imagine if Congress passed a statute that limited a government job to a person born in America–no babies from Europeans or Africans or Asians could apply. Only those people born in the United States would eligible. Naturalized citizens need not apply. I think everyone would agree that law would be unconstitutional under modern Equal Protection caselaw. This suspect classification (national origin, and specifically the nationality at birth) would be subject to strict scrutiny, and the statute would be invalidated.

So why would a similar provision in the Constitution of 1789 escape the 14th Amendment? The mere fact that the “Natural Born Citizen” clause is in the Constitution does not make it immutable. The 14th Amendment already jettisoned the 3/5 clause. Why not this other discriminatory provision?

One rejoinder is that the Constitution also limits the qualifications for the Senate and the House to those who have been citizens for a number of years. Under our modern equal protection case law, classifications on citizenship are tolerated in certain contexts–especially in cases of governmental service. Also, by virtue of the 14th Amendment, a person can become a citizen. In stark contrast, a person can never change his nationality at birth. That is the essence of an immutable characteristic. Rather, the candidate is judged entirely on the basis of his nationality. An immigrant is permanently disqualified from holding the office of the Presidency, while an immigrant who is naturalized could run for the House or Senate in a number of years.

I don’t see how the “Natural Born Citizen Clause” survived the 14th Amendment.

Update: Ed Whelan, who calls my idea “silly,” makes an important point:

My argument is premised on case law interpreting the text of the Constitution–not the original meaning of the 14th Amendment. The 14th Amendment, on its face, doesn’t impose bans on classifications based on nationality, or gender, or race, or anything for that matter. It only speaks of “equal protection,” whatever that is. For that matter, the entire notion of “strict scrutiny” is a judicial creation. Ed chalks all of this up to “living constitutionalism” and contends that caselaw cannot render an express provision of the Constitution void. Ed writes that this means the caselaw is wrong.

This seems another leg in the ongoing debate about judicial supremacy and departmentalism, which I hadn’t meant to address in this post, but I suppose it is inevitable. If we accept that the Supreme Court is the final (but not sole) expositor of the Constitution, then we accept that “strict scrutiny” and “suspect classifications” are the meaning of the 14th Amendment. In this limited sense, the “natural born citizen” clause is incompatible with how the Court has interpreted the 14th Amendment. But this is not the only way to read the 14th Amendment. If we reject this view, then there’s no problem.

A simpler answer is that we can argue that earlier provisions of the Constitution can only be voided by a clear, explicit textual provision–such as the 11th or 21st Amendment. I’ll need to give more thought to this, as I (much to Ed’s chagrin) take modern equal protection as a given. But it’s true that provisions should not be repealed by implication (as Eric Segall noted).

Update 2: Christopher Green points out that in Knauer v. United States (1946), the Court per Justice Douglas pointed out that the “Natural Born Citizen” clause is an exception to the general rule:

Citizenship obtained through naturalization is not a second-class citizenship. It has been said that citizenship carries with it all of the rights and prerogatives of citizenship obtained by birth in this country “save that of eligibility to the Presidency.” Luria v. United States,231 U. S. 9, 231 U. S. 22. There are other exceptions of a limited character. [Footnote 3] But it is plain that citizenship obtained through naturalization carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws, including the very Charter of our Government. Great tolerance and caution are necessary lest good faith exercise of the rights of citizenship be turned against the naturalized citizen and be used to deprive him of the cherished status. Ill-tempered expressions, extreme views, even the promotion of ideas which run counter to our American ideals, are not to be given disloyal connotations in absence of solid, convincing evidence that that is their significance. Any other course would run counter to our traditions, and make denaturalization proceedings the ready instrument for political persecutions.


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Mar 23, 2015

Video: Justice Kennedy Testifies about Gridlock and the Supreme Court

During his testimony before the House, Justice Kennedy was asked to discuss the politicization of the judiciary. His response, which I think bears on the issue in King v. Burwell, focused on how the Courts presume that all three branches of the government are functioning, and that “gridlock” should not impact whether the Court invalidates statutes.


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Mar 23, 2015

Justice Kennedy Discusses Gridlock During Hill Testimony. Yes, there is a King v. Burwell connection

During his annual visit across First Street, Justice Kennedy weighed in on one of our favorite topics–the relationship between judicial review and gridlock. Here is a (really) rough transcript, as I feverishly tried to type down what he was saying (around 4:05 ET).

Some argue that gridlock should effect the way we interpret statutes. That seems to me the wrong proposition. We have to assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic

I’ll post the complete transcript later when I can. Chris Geidner and Lawrence Hurley also picked up on it.

Update: Here is the transcript from CSPAN closed captions:


Video is here.

Kennedy’s comments bear on an exchange that came up during King v. Burwell where the SG told the Court that “this Congress” would not fix the ACA if the Court invalidated the IRS Rule. AMK does not seem persuaded by the argument that the Court should consider whether Congress will, or will not fix the law. This does not bode well for the government.

I repeat here something I wrote on argument day in King v. Burwell.

One of the more jarring exchanges today at oral arguments in King v. Burwell was between Justice Scalia and Solicitor General Verrilli. Justice Scalia said that if this statute doesn’t work, Congress can fix it.

We all know the odds of this happening are slim–though reconciliation may be an option to get beyond the filibuster and force the President’s veto–and reflects what Richard Re has called the “Doctrine of One Last Chance.” (I discussed it here in the context of Pruitt v. Burwell). Like in Shelby County, the Court can give Congress a task they know they won’t do. We all know this. But the Solicitor General is not supposed to acknowledge it. But acknowledge it, he did.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­


You can’t tell from the transcript, but Verrilli said it very sarcastically, with the stress on “this.” As in, “are you kidding me? This Congress? Fix something? Ha.” I heard a slight chuckle in his voice.

Nancy Pelosi, who was sitting 3 seats away from me, shook her head at this line. It’s okay for Pelosi to make these points, but not the Solicitor General at the lectern.


After the laughter, Verrilli dug his hole deeper.

GENERAL VERRILLI: You know, I mean, of course, theoretically ­­ of course, theoretically they could.

This was also said with a slight chuckle.

Justice Scalia, who seemed visibly offended by this comment, replied sharply.

JUSTICE SCALIA: I ­­ I don’t care what Congress you’re talking about. If the consequences are  as disastrous as you say, so many million people  without ­­ without insurance and whatnot, yes, I think this Congress would act.

I found it entirely inappropriate for the SG to say this. This wasn’t impromptu, but was no doubt a rehearsed line. And it wasn’t necessary to his argument. This was a political comment, not a legal one. It was beneath the Office to dignify these partisan concerns. Verrilli, whom I defended in my book (against the currents) undermined his credibility with these two remarks. He should not have said them.

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Mar 23, 2015

SCOTUS Dismisses Show Cause Against Shipley

In today’s orders, the case against Howard Neil Shipley ends with a bust, rather than a bang:

A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible—as Officers of the Court—for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated “in plain terms,” and may not delegate that responsibility to the client.

This proves, once again, that Paul Clement is the best at what he does.

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Mar 22, 2015

The Rule of Law, Judicial Review, and Judicial Supremacy

Kevin Walsh offers a thoughtful reply to my critique of Will Baude’s essay. In my article, I argue that it is inconsistent with the rule of law for the President to limit an adverse ruling in King v. Burwell to the named plaintiffs. Kevin questions which “particular rule of law that the Administration would be violating” if they adopted Will’s suggestion.

The short answer is that a core aspect of our rule of law is judicial review. When the federal courts (and not just the Supreme Court) issue a ruling, whether it is right or wrong, the other branches and the states should adhere to it, and not craft ingenuous evasion techniques. The failure to do so triggers what I described in my article as a “dangerous race to the bottom.” I didn’t think it would be controversial to rely on the fact that the supremacy of judicial review is a core aspect of our rule of law, but Kevin’s conclusion suggests I needed to say more.

It is nonetheless important to acknowledge the legal permissibility of plaintiff-specific compliance. Not only is casual acceptance of judicial supremacy undesirable but clear appreciation for the legal limits of judicial authority can also usefully inform the Supreme Court’s crafting of interim relief such as a temporary stay like the one issued after Northern Pipeline. If the Court declines to grant such relief to ease the transition, but the Obama Administration deems some transitional relief necessary, the Administration can lawfully rely on the legal limits on judicial relief when deciding how to proceed.

Stephen Carter, who also defends Will, closes on a similar note:

The administration is unlikely to take Baude’s advice (even though some critics say it’s happened already), and I think the president’s counselors would be ill-advised even to consider it seriously. But that doesn’t mean Baude is outside the mainstream. Quite the contrary. With the institution of judicial review under assault in the law schools, it’s only a matter of time until doubts about the old-time consensus creep into public debate. And maybe that’s a conversation worth having.

When I read these, I thought “Huh?” The debate over judicial restraint versus judicial activism is older than I am. Of late, conservatives have taken to what is now dubbed “judicial engagements,” and liberals, smarting from a losing streak at One First Street, have turned to the values of passive virtue. Fine. I get that. But I didn’t realize that “the institution of judicial review” itself was “under assault in law schools.” I draw a huge distinction between disagreeing with specific Supreme Court decisions and questioning the validity on which judicial review stands. I thought the issue of judicial supremacy was conclusively settled by Cooper v. Aaron five decades ago, if not Marbury v. Madison two centuries ago.

Following Brown v. Board of Education, school districts did not voluntarily desegregate, but waited for one federal district court after another to issue an order against them, and resisted it the entire way. That was the essence of Cooper v. Aaron–the Supreme Court said that states could not engage in this chicanery. Consider other examples I raise in my essay:

While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.

I understand Will Baude’s point to be that the President, consistent with Cooper v. Aaron, could narrowly read a Supreme Court decision to limit relief to the named plaintiffs. But Carter and Walsh seem prepared to take it a bit further.

If these lessons are already being cast aside to history, and states and executive branch officials are openly considering forcing the lower courts to issue judgments in favor or every single harmed party, what I understood to be our rule of law is in trouble. Once courts are seen as obstacles to be vaulted over, rather than what Hamilton called in Federalist No. 78 “bulwarks of a limited Constitution against legislative encroachments,” we are in trouble. And that trouble is a heck of a lot greater than Obamacare or immigration, or any other social issue of the day.

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Mar 22, 2015

Goldsmith: Congress has Acquiesced to President’s Reading of 2001 AUMF

Jack Goldsmith offers some thoughts about why debates about a new AUMF for ISIS has stalled–in short, Congress has already acquiesced to the President’s reading of the 2001 AUMF (which is not going to be repealed) so there is no need to do anything further:

The President has been using force against the Islamic State in Iraq and Syria since last August, and he has justified these actions since last September under the 2001 AUMF (among other sources).  This interpretation of the 2001 AUMF was controversial.  But it was made openly in public and it has not caused a national outcry or congressional backlash.  One might say that the nation has effectively acquiesced in the President’s actions – politically, if not legally.  As a result, as a practical matter, the President has all the authorities he needs to conduct the fight against IS.  “We don’t need a new AUMF to do our jobs,” a “defense official” told the Daily Beast last month.

Herein lies the danger of Congress refusing to take difficult positions on matters of executive power. By continuing to fund and tacitly approving the most outlandish policies that make a complete hash of statutes, the President gains a license to continue engaging in that activity. If Congress won’t even fight for their own prerogative, the separation of powers is in serious trouble.

Update: As Charlie Savage notes in the comment, he anticipated this months ago in the Times:

As lawmakers grapple with President Obama’s claim that he already has congressional authorization for airstrikes against the Islamic State, legal specialists are saying that even legislative inaction could create a precedent leaving the executive branch with greater war-making powers. …

The House and Senate swiftly passed a rebel-training bill, but it did not address the executive branch’s claim about the 2001 and 2002 authorizations. Members of Congress have also introduced a flurry of bills that would explicitly authorize force against the Islamic State, but none repudiate the administration’s interpretation of existing laws, either.

The Obama legal team’s broad interpretation of the old authorizations has drawn criticism. But several legal specialists said that because Congress was on notice about how the executive branch was interpreting its 2001 and 2002 statutes, any failure to challenge that theory — especially as it enacted other legislation in connection with Islamic State policy — could be interpreted as ratifying it.

“The Supreme Court has said that sometimes, congressional silence means Congress has approved of what the executive has done,” said Barry Friedman, a New York University law professor. “If Congress, for political reasons, is unwilling or unable to speak up and the executive goes forward with its somewhat questionable theory, in the future, courts may well treat Congress’s silence as granting permission.”

In a 1981 case, Dames & Moore v. Regan, the Supreme Court ruled that Congress had consented to a presidential power to suspend private lawsuits against Iran in order to resolve the hostage crisis. Even though no statute explicitly granted that power, the court held that because Congress knew the executive branch had claimed such authority and did not challenge it, it had acquiesced to its existence.

Still, the Obama administration’s broad claims, and the fact that “Congress has done nothing to push back,” may become a precedent that the executive branch could use for future interpretations of statutory authorizations to use military force, said Jack Goldsmith, a Harvard Law School professor and former Justice Department official.

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Mar 20, 2015

Audio: Mark Levin Discusses “The President Cannot Bypass the Courts”

Last night’s episode of the Mark Levin Show discussed my article, “The President Cannot Bypass the Courts.” I apologize in advance for some intemperate and inappropriate comments towards my friend and colleague, Will Baude. His new position at the Times is already bearing fruit, as he singlehandedly made virtually every law professor think an issue through a second time. Whether we agree or not (I do not), I applaud the power of this platform.

Levin, who praises me for being a real constitutional law professor, rather than an “adjunct” like President Obama, seems to embrace the notion of judicial supremacy, and is all too happy for federal judges to issue nationwide injunctions that halt unprecedented expansions of federal power. This is significant, as it marks a continuing trend on the right towards a level of comfort with judicial engagement. I will reply later to Kevin Walsh’s thoughtful rejoinder, but for now I will note that the “restraint” line of thinking seems to be on the wane on the right.

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Mar 19, 2015

Video: “Hobby Lobby, Obamacare, and Religious Liberty” At University of Nebraska Federalist Society Chapter

On Wednesday, March 18, the University of Nebraska Federalist Society Chapter hosted me for a discussion of Hobby Lobby, Obamacare, and Religious Liberty. This chapter earned their Feddie for “Most Improved Chapter.” They have held an event almost every week, and their leadership is top notch. Professor Richard Duncan kindly provided comments on my talk.


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Mar 19, 2015

Video: “What Happens if Data is Speech?” At Northwestern Federalist Society Chapter

On Tuesday, March 17, the Northwestern Federalist Society chapter hosted me for a discussion on “What Happens if Data is Speech?”


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Mar 19, 2015

Audio: “ISIS, Immigration, and Obamacare” at University of Michigan Law School Federalist Society Chapter

On Monday, March 16, the University of Michigan Federalist Society Chapter hosted me for a discussion on executive power following Noel Canning, with a focus on ISIS, Immigration, and Obamacare.




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Mar 19, 2015

New in National Review: “The President Cannot Bypass the Courts”

National Review published my response to Will Baude’s now-famous editorial, asserting that the Obama Administration can sidestep an adverse ruling in King v. Burwell by claiming the Court only has jurisdiction to resolve the claims of the four Virginians who brought the challenge. While I think Will may be technically correct, the implications of this theory are frightening. And what makes it so frightening, is that the Obama Justice Department has made this exact argument in high profile cases involving Obamacare and litigation–that federal courts only have the power of judicial review over the parties before them, in their district.

In offering this “Get Out of Jail Free” card to the Obama administration, Baude notes that “the Constitution supplies a contingency plan, even if the administration doesn’t know it yet.” Alas, the Obama Justice Department is well aware of this stratagem to bypass the federal courts — it has thrice plotted this procedural putsch. In three high-profile cases, two involving Obamacare and one involving immigration, the Justice Department has openly challenged the power of federal courts to issue nationwide injunctions to halt unlawful executive actions. These desperate efforts to interfere with the courts in order to salvage unprecedented assertions of power have flouted the rule of law.

In three high-profile cases, two involving Obamacare and one involving immigration, the Justice Department has openly challenged the power of federal courts to issue nationwide injunctions to halt unlawful executive actions. These desperate efforts to interfere with the courts in order to salvage unprecedented assertions of power have flouted the rule of law.

First, the government told Judge Vinson that Obamacare was too big to fail, and he could not enjoin its implementation outside the Sunshine State.

The Obama administration doubted that a single federal judge could throw a wrench into the lurching Leviathan. In other words, Obamacare was too big to fail. Judge Vinson was none too pleased with this request, which he saw as a pointless delay. He wrote that, since his opinion was issued, the government had “continued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.” Seemingly insulted, Vinson said that he had not expected that the government “would effectively ignore the order.” Ultimately, he put his ruling on hold, but he reaffirmed that his equitable power of crafting an injunction was not limited to the Sunshine State.

Second, in King’s sister case, Halbig, the government actually asserted that non-parties had a due process right to be heard before their subsidies were taken away, so it would actually be unconstitutional for the court to invalidate the rule beyond the named plaintiffs!

Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest! The plaintiffs shot back, incredulous that the government had an “apparent intention to lawlessly flout this Court’s binding order.” In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to “vacate the IRS Rule” in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.

Third, and most recently, the DOJ has told Judge Hanen, that he could only enjoin DAPA in Texas, or alternatively only in the states that were parties to the suit. This relief would effectively be worthless as immigrants can easily move after receiving DAPA.

Third, last month, a federal judge in Brownsville, Texas, found that President Obama’s most recent executive action on immigration (Deferred Action for Parental Accountability) was unlawful. The suit, brought by Texas on behalf of 26 states, sought to halt the implementation of DAPA in its entirety. Judge Andrew Hanen agreed, and issued a nationwide injunction. True to form, the Justice Department asked Judge Hanen to reconsider his ruling and limit it to Texas alone, or, at most, to the 26 states that were parties to the lawsuit. The Justice Department argued that “Nationwide injunctive relief is particularly inappropriate in the context of government programs.” In its brief to the Fifth Circuit Court of Appeals, the DOJ called Judge Hanen’s order “drastically overboard” and “manifestly excessive” as it “enjoined DHS from implementing the Guidance nationwide, barring implementation in States that do not oppose it and in States that support it.” While Judge Hanen has not yet ruled on this motion, it should be denied. If DAPA is unlawful, it makes no sense to allow the government to grant benefits in 24 states. If an immigrant moves from California to Texas after being granted benefits under DAPA, the injuries suffered by Texas cannot be avoided.

Contrary to Will’s hypothetical, we are already living in this age of lawlessness and disrespect for the authority of the courts to enjoin unlawful executive actions that expand the power of the state. And thankfully, these arguments have been soundly rejected by the courts:

In these three significant cases, the government’s strategy has become apparent. In the first case, the Justice Department argued that Obamacare was too big to stop, and that a single federal court in Florida could not put it on hold. In the second case, it openly expressed its desire to flout the court’s ruling, on the grounds that a single federal court could issue relief only to the parties before it. In the third case, it claimed that a single federal judge, having found that the secretary of homeland security was acting unlawfully, was powerless to stop him outside his own state — or at least outside the states that were suing. The response has been emphatic: Federal courts, vested with the power of judicial review, can craft injunctive relief to ensure that the executive branch adheres to the rule of law.

But why stop with the Supreme Court or DOJ? Why can’t the States make these arguments in the inferior courts (Hint: CJ Moore already has):

While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.

This is a scary argument that DOJ should stop making, even if it is technically correct:

The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them. This breach of the separation of powers would trigger a dangerous race to the bottom, where one state after another would find ways to ignore the jurisdiction of the federal courts. Even if legally correct, this practice should be emphatically rejected, and the Justice Department should cease making this argument. Openly and brazenly flouting the judiciary is a dangerous precedent that should be halted nationwide.


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Mar 18, 2015

Floyd Abrams: “The First Amendment Is About Liberty.”

One of the themes I’ve developed over the past few years is a shifting trend in progressive and conservative thought on the First Amendment, and individual liberty more generally. Three important examples illustrate this divide. First, the speech rights of corporations who engage in advocacy once thought the role of individuals. Second, the religious liberty of corporations that exercise faith, once thought only the dogma of believers. Third, the freedom of association of groups, who use their assembly to thwart, rather than advance perceived­ progressive goals. I will be presenting a paper on these issues, titled “Collective Liberty” at the Yale Law School Freedom of Expression Scholars Conference in May (You can download the abstract here and watch a video of my talk here).

Fittingly, the conference is named after none other than Floyd Abrams, who has tirelessly defended the First Amendment for decades. In recent speeches and writings, Abrams has called attention to this troubling shift of views on free speech. Perhaps his most poignant words were delivered in a lecture at Temple Law School, concerning the 2015 “workplan” of the ACLU, which did not list Free Speech among its priorities. Ron Collins graciously offers the transcript here. I will offer some highlights in this post, but I encourage you to read all of it.

Abrams calls attention to the post of Howard Wasserman, who citing an ACLU response, noted that the omission of free speech was a reflection of the fact that “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.” (Wasserman comments here).

Abrams replies that the biggest threat to free speech in America is the college campus.

Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.

Abrams recounts how many speakers (all conservatives) have been heckled, stifled, and even disinvited from speaking at college campuses, including those speaking on “topics as abortion, gay rights, and the ‘war on terror.'” Abrams calls this a “extraordinary perilous moment.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.

Abrams comments on a disturbing event where students banned the flying of national flags at the University of California:

I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.

Abrams next turns to what Collins labels “the ideological left’s drift away from the First Amendment”:

At the same time that a battle rages on campus as to what speech is to be permitted, a similar one rages in academia and on the Supreme Court as to what the First Amendment is all about. And in that conflict, as well as that relating to free speech on campus, it is the ideological Left that seems increasingly less supportive of the First Amendment – or, to put it more fairly, to more speech or speech-like activity being protected by the First Amendment.

First, Abrams defends Citizens United, which has become something of a liberal bogeyman. As I note over and over and over again, the New York Times is a for-profit corporation. The notion that it loses its free speech because it is a corporation is asinine. And for those of who you rely on the Free Press clause, turn to the ACLU or Planned Parenthood or countless other corporations who have brought constitutional challenges. Abrams lists many of the corporations he has defended:

But I would like to revisit one threshold aspect of the case that, to my surprise, still seems controversial even though I find it uncontroversial. It’s whether corporations should receive First Amendment protection at all. I have a special interest in that topic since a good part of my legal work has involved representing corporations in First Amendment cases.

So let me personalize this is a bit. It is true that when I think of clients that I or my Firm have represented in First Amendment cases, I think immediately of some individuals – Judith Miller for one, and more recently, New York Times journalist James Risen, who my Firm represented on a pro bonobasis.

But I also think of corporations. Not just enormous media corporations but ones like Barnes & Noble, that I represented some years ago with respect to a subpoena issued by the Office of Special Prosecutor Kenneth Starr in an effort to learn what book Monica Lewinsky had purchased as a gift for President Clinton. And of the Brooklyn Museum, which then New York City Mayor Rudolph Giuliani fought to close down because he disapproved of some of its art. And of a motion picture company that sought advice from us as to whether a scene in a much honored film it had made which contained a scene, filmed abroad,  showing the 17 year old star of the film sexually entangled with an older female star could be said to have violated American child pornography laws. And of a number of liberal arts colleges around the country that weighed in in the Supreme Court, in briefs we wrote for them, on the First Amendment impact on educational institutions if affirmative action was ruled unconstitutional. And of a tobacco company I represented in a challenge to the Food and Drug Administration seeking to require them to place on 50% of each of their packs grotesque pictures of dead or dying people who had smoked. And I think of the fact that until last month, when a case I had been actively involved in settled, I devoted a great deal of my time representing a credit rating agency and arguing that when the Department of Justice commenced a civil action against it and only it  arising out of ratings all but identical with those of other rating agencies and my client was the only one that had downgraded the debt of the United States, that the Government had violated the First Amendment because it is not permitted under the First Amendment to retaliate against its critics by using the law in a selective fashion.

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Abrams cites Justice Stevens, Elizabeth Warren, and Burt Neuborne who have all repeated the trope that corporations have no soles, so they cannot have constitutional rights. Rubbish!

The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

Next, Abrams turns to Justice Breyer’s troubling opinion in McCutcheon v. FEC, where he speaks of a “collective” First Amendment right:

In Justice Stephen Breyer’s dissenting opinion from the ruling of the Court, he offered the following view of the First Amendment: “[T]he First Amendment advances not only the individual’s right to engage in political speech, but also the public interest in preserving a democratic order in which collective speech matters.” The First Amendment, he maintains, must be understood as promoting a government where the laws reflect “the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

That view is consistent with the views previously voiced by Justice Breyer in his book Active Liberty: Interpreting Our Democratic Constitution (2005). In that book he argued that the primary purpose of the First Amendment is one that “goes beyond” protecting the individual from government restriction of information “about matters that the Constitution commits to individual, not collective, decision making” (emphasis added). That purpose, Justice Breyer argued, was “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”

Abrams replies that the Breyer gets it entirely backwards–First Amendment exists to protect individuals from the government, not the collective.

On one level, it is difficult to disagree entirely with Justice Breyer’s views since it is undeniable that by restricting the power of the government to control, let alone limit, speech, the First Amendment surely assists in protecting “democratic order.” But the core First Amendment interest is that of protecting freedom of expression from the government. Relegating that to a subsidiary position behind permitting the government, in the name of advancing democracy, to limit the amount of speech about who to vote for, risks much that the First Amendment was adopted to protect. As for Justice Breyer’s disturbing reference to “collective speech,” my view was put far better than I could by Chief Justice John Roberts’ observation that any such notion is contrary to “the whole point of the First Amendment.”

Alas, Breyer does not stand alone. His thought has permeated modern-day liberal thought in a way that was unimaginable decades ago. Abrams cites an essay by Lincoln Caplan, who writes that “However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outsiders . . . or for the dispossessed and powerless.”

Abrams replies that while this may be true as a factual matter, it is entirely irrelevant to the constitutional inquiry:

There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the “haves” – some of them corporations, some individuals. But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.

What Mr. Caplan, who I am sure celebrates First Amendment victories for enormous and enormously powerful press corporations, seems to believe is that if other corporations are protected by the First Amendment, democracy itself will be imperiled. But his notion of democracy and mine are very different. I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period.

We must never forget that Citizens United was, at its heart, an attempt to tell a group of conservatives that they could not distribute a move critical of Presidential Candidate Hillary Clinton. Recall Deputy SG Malcolm Stewart told Justice Alito that the government could ban a book! Never, ever forget this history when you study the outcome in Citizens United.

So for me, when Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it was obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.

Abrams cuts to the heart of this ideological drift–liberals are conflating the First Amendment with views of social justice (I allude to this in my piece on “Collective Liberty.”)

Let me put it another way. I think Mr. Caplan is conflating what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. Certain types of inequality might be dealt with by greater enforcement of – or significant amendments to – our civil rights laws. Other more economically rooted forms of inequality might be dealt with by raising taxes, enacting stricter antitrust laws, limiting the size of certain corporations – choose your own new world. But what the First Amendment forbids the government from doing is abridging speech.

Abrams closes with a powerful quote from Isaiah Berlin:

The great English philosopher Isaiah Berlin put it this way: “Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not rewrite the First Amendment in doing so.

My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly.

I wish there were more on the left who would have the audacity to say what should be an uncontroversial truth.

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Mar 17, 2015

The Supreme Court on Nationwide Injunctions

In an earlier post, I responded to Will Baude’s argument that the Supreme Court could limit the relief to the named plaintiff in King v. Burwell. I noted that under the D.C. Circuit’s precedents, when a court sets aside a rule under the APA, the decision applies nationwide. However, as Will noted in an email, the Supreme Court has not adopted this rationale. The closest the Court came to addressing this issue (recently at least) was in Summers v. Earthland Institute. The fourth question presented, which was not addressed, was whether the district court had the power to issue a “nationwide injunction.” Justice Scalia wrote for the 5-4 decision:

We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate.

However, SG Clement argued in the government brief that APA does not even permit nationwide injunctions, totally apart from the question of whether it was appropriate.

If the court finds that a regulation on which the agency relied in rendering that decision is unlawful (and that its application was not harmless er- ror, see National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2530 (2007)), the proper relief is for the court to hold the site-specific decision unlawful (i.e., to “hold unlawful” the reviewable “agency action”) because it rests on the regulation the court found to be invalid, not to go beyond the confines of the case and invalidate the regulation in all of its potential applications to other site-specific decisions. If the court of appeals in this case had correctly identified the Burnt Ridge Project as the only “final agency action” properly subject to challenge, the appropriate relief (even if the case had remained live) could have extended no further than a declaratory judgment that the decision approving that project was unlawful or an injunction prohibiting petitioners from carrying out that project until the For- est Service had satisfied the requirements the court of appeals found to be imposed by the ARA.  … Absent clear statutory text compelling that asymmetrical result—and the text of 5 U.S.C. 706 contains nothing remotely so requiring—the court of appeals plainly erred in approv- ing a nationwide injunction.

The SG also makes something of an equitable argument, explaining that nationwide injunctions impede the ordinary route of review through the Circuits:

Construing the APA to require a nationwide in- junction in cases like this one would also impede the usual process by which disputed legal issues are consid- ered by different circuits before (if necessary) being resolved by this Court . . . The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government should be subject to relitigation in different circuits.

The SG notes that seeking the nationwide injunction forces the government to pursue an appeal in the Supreme Court, rather than allowing the issue to simmer:

The Ninth Circuit’s affir- mance of the nationwide injunction forced the govern- ment either to forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f ) altogether, or to seek this Court’s review of the first court of appeals decision that had ad- dressed the validity of those regulations.17

In a footnote, the SG stresses how this practice allows one Circuit Court to stop other courts nationwide from addressing the issue:

Indeed, if this Court had not granted certiorari to review the Ninth Circuit’s decision in this case, that ruling would have prevented any other court of appeals from considering the question.

Clement makes clear that the government should not be forced into this posture:

Except where Congress has specifically authorized a single lower court to vacate a regulation and resolve such ques- tions on a nationwide basis, this Court’s precedents make clear that the government should not be put to that choice (with the attendant distortion of this Court’s normal ability to defer review, absent relatively unusual factors, until more than one court of appeals has ad- dressed the question). 

I stress the last sentence, because in many respects, the challenges to the individual mandate by 26 states, the challenge to DAPA by 26 states, and the challenge in King v. Burwell, are quite unique. They represent significant challenges to programs with nationwide effects. Allowing the program to go into effect for non-party states, or even the millions not named in the case, creates significant irreparable damages, and renders future equitable relief very difficult. You can’t put the toothpaste back in the tube, as Judge Hanen explained, if DAPA goes into effect in 24 states.

We are witnessing this fact now with King. Recall that Halbig was initially a motion for a preliminary injunction, seeking to enjoin the ACA subsidies before the law went into effect. The district court sat on the case for far too long, rendering that injunction  impossible. As a result, any decision by the Court would result in people who previously received subsidies, on longer being eligible. That is a significant equitable factor that (no doubt) is weighing on the Justice’s.

Will is correct the Court has never adopted the D.C. Circuit’s reasoning on nationwide injunctions. Although, in light of the SG’s own representation, I suspect the Court would find here “relatively unusual factors” concerning the ACA that would counsel in favor of giving relief nationwide.


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