Sep 12, 2016

Debate at SMU Federalist Society: “Intellectual Diversity in Legal Academia”

On Tuesday, September 6, the SMU Federalist Society hosted an enriching debate on “Intellectual Diversity in Legal Academia.” Or, to borrow from the marketing flyers, “Searching for Unicorns.” Joining me where David DePianto and John Browning, who both teach at SMU. I encourage you to watch the video, which runs over an hour. During the last 20 minutes, a number of faculty members, as well as students posed questions. The audio didn’t pick up the questions, which is a shame, because they raised some important issues. I will try (to the best of my recollection) to discuss their questions, and summarize my answers.

First, one professor raised the point that when reviewing resumes, he was never able to even discern an applicant’s personal views. For most resumes, this is emphatically true. Ideology (and I use that term in the loosest sense) will generally only come through when writing about public law, such as constitutional law, international law, administrative law, etc. It is no surprise then that conservative academics deliberately choose areas of the law–tax, secured transactions, corporate law, etc.–where politics really don’t matter. When I was first considering going on the market, a number of people (whose names you would recognize) implored me to focus on intellectual property because of my technical background. They told me focusing on constitutional law would be career infanticide. They were right, but I did it anyway.

Second, another professor asked what the “critical mass” of conservative law professors would be. I had to chuckle, and note that was the same question Chief Justice Roberts posed to the lawyers for U.T. Austin in Fisher. The attorney was unable to provide an answer to the Chief. My response to the Professor was that we are far from even discussing a critical mass–the professoriate denies there is even a problem! The numbers show that (at best) 80% of a faculty is left-of-center, as measured by any conceivable metric, including party registration or political donations. If any campus was 80% white, there would not for a moment be a discussion of whether we need a critical mass, or otherwise, to take action to redress the problem. Now to be clear, I am not calling for some sort of conservative affirmative action. I would find it demeaning and insulting if I was hired as a token conservative. But under any valid disparate impact analysis, the demographics suggest something is awry.

Third–and this gets to the heart of the matter–another professor suggested that the reason why there are fewer conservative professors hired is that there are fewer conservatives in the “pipeline.” That is, there are not that many Reaganites inhabiting the political science departments at ivy league universities. As a result, there are simply fewer conservatives applying, so fewer get hired. Empirically, that is certainly true. Conservatives will (on average) lack the credentials (a doctorate from Berkeley in critical racial economics) that could help with hiring.

Fourth, another professor took the pipeline notion further, but in a direction that is revealing. He relayed a story from a conference he attended where a famous scholar said (paraphrasing) “the reason why conservatives don’t get hired is because their ideas are just stupid.” I’ve now debated this topic a number of times, and invariably the topic of global is raised: Why would a climate science department hire someone who denies the existence of climate change, the argument goes. The professors would be demanding “some artificial notion of equal time” where someone thinks the earth is round must be matched with someone who thinks the earth is flat. Climate science–an area I have no expertise in–can be reduced to formulas. Law–premised on subjective value judgments–cannot. Whenever I debate this topic, someone invariably brings up climate science, and it doesn’t fit. I offer a few alternatives: writing about originalism, an individual notion of the Second Amendment, or that Congress lacks the power to compel commercial transactions (before 2012), etc. Are these propositions so beyond the pale that they are “stupid.” I suspect many scholars would answer that yes, they are.

Fifth, another professor suggested (paraphrasing, because the audio is garbled) “If you attach yourself to a party that doesn’t believe in our best version of facts (referring again to global warming) that is not discrimination, that is something.” It is unfortunate to tar a scholar based on guilty by association: because he gave money to John McCain or Mitt Romney over Barack Obama, he represents the worst of Republican politics. Or, to paraphrase Hillary Clinton, he is in the “basket of deplorables.” Politics is complicated. People vote for a series of complex reasons, and often pick the least-worst option. (This election perhaps more than any other proves this point). It is downright prejudicial to reject a person’s scholarship because of who he votes for. Fortunately, the ballot box is still secret, but job service is not.

Sixth, a student asked why would schools hire professors out of the mainstream, in a way that could injure their “brand.” I was absolutely gobsmacked by her ignorance about the importance of the university to foster dissent and ideas outside the mainstream. But I really shouldn’t blame the student. I doubt this tenet of academic freedom was ever articulated to her. Rather, she was probably taught at every juncture to avoid saying or doing anything that would upset others–that includes writing and thinking about unorthodox ideas. The framing of her question, which danced around the issue, was even more ignorant. She suggested that hiring conservative professors would hurt the school’s “brand.” To the contrary, many donors are withholding their checks because of the hostile environment brewing on college campuses. But that doesn’t resolve the issue–universities should promote the pursuit of ideas, in spite of their unpopularity. After reflecting on the question, a few hours later (always too late) I came up with this response: Would you have hired a scholar in 1972 who wrote that the 14th Amendment protected a right of same-sex marriage. The year before, the Supreme Court dismissed Baker v. Nelson for “want of a substantial federal question.” At a time when homosexuality was considered a mental illness, it certainly could have hurt a school’s “brand” to hire such a scholar, writing material entirely out of the “mainstream.” Four decades later, that position is now the law of the land. I’ll be sure to use this example the next time I debate this topic.

On the whole, it was a very enriching experience for the students in attendance, and for me.









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Sep 11, 2016

#Unraveled Interview on The Mike Siegel Show

On Thursday night, talk radio host Mike Siegel hosted me for the full hour to talk about Unraveled: Obamacare, and Religious Liberty. He also asked me about executive overreach by the Obama administration.

It was refreshing to have so much time to develop these themes, as most media soundbites give you (at best) 15 seconds to spit out an answer. Enjoy.

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Sep 9, 2016

9/11/2001 in Staten Island, New York

I have posted this the last few years in honor of September 11th, 2001. I post it again.

Every generation has a defining moment. For my generation, it was 9/11/2001.

Here are my memories of 9/11/2001. It was a Tuesday.

I was a Senior at Staten Island Technical High School, which is about 20 miles from ground zero. We were about 1 week into the school year. I was sitting in Ms. Endriss’s 2nd Period A.P. Political Science class. We were going over some NYC Public School discipline policy, and discussing what kinds of weapons were forbidden in schools (brass knuckles were a no-no). A student walked into the classroom late. He had heard a rumor that a Cessna airplane had hit the World Trade Center. A girl in my class exclaimed that her father worked in the World Trade Center. I could see the look of fear in her eyes, even though none of us had any clue what was going on. She wanted to call her dad. I was the only student in the class with a cell phone, which I promptly gave her. The call did not go through–he worked on one of the upper floors of the tower, and passed away.

We finished second period, apprehensively. I logged onto a computer, and attempted to check the news. I recall one friend told me to check for news. At that point, the reports were unclear, and no one knew what was going on. We proceeded to 3rd period A.P. Calculus with Mr. Curry. At that point, someone told us that it was not a Cessna, but in fact a passenger jet. We were all getting nervous, and didn’t quite know what was going on. Later in class, a student came into the class and said a second plane had crashed into the other tower. We also heard that there was an explosion at the Pentagon. At that point, we knew it was not an accident.

I remember leaving the class (something I never did) and walked up to the library where I knew there was a T.V. Just as I arrived in the library, I saw the first tower collapse. I watched it live. I was stunned and could not believe what was happening before my eyes. I grabbed my cellphone to call home, and almost immediately after the tower collapsed, I lost all service. I was not able to call my mom in Staten Island, though I could call my dad who was working in Long Island. Long distance calls seemed to work, but local calls were not working. I remember my dad told me that this was a life-changing event, and he had no idea what would happen. I heard some rumors on TV that there were 15 planes that were hijacked, and unaccounted for in the skies.

By lunch time, the school guidance counselor set up a conference room where students could go to talk. I remember seeing student after student who had a family member or friend who worked in the World Trade Center or in Manhattan. A large number of firefighters and police officers reside in Staten Island. Tragically, many of the emergency responders who perished were from Staten Island. What could we even tell those students?

After that, the day become a blur. I remember hearing that the second tower had collapsed, though I did not see it.  I remember watching the entire United States Congress sing God Bless America on the steps of the Capitol. I had never been so afraid in my life. Later that night, I took a bus home. The New York City public buses were still running, and I remember the driver was not collecting fares.  On the bus, people were talking about the imminent war (against whom,  no one knew) and the imminent draft. Some were saying that students were exempt from the draft.

The next morning, September 12, 2001, I woke up and smelled this horrible smell. The air had this pungent odor, that reminded me of burned flesh at a BBQ. I went to school that morning, and attendance was low. In all of my classes, we were talking about war. I asked whether the US would need to use nuclear weapons. My teacher explained that carpet bombing–a phrase I had never heard of–could wreak plenty of damage in Afghanistan. Later that week students began making sandwiches for the relief workers, and collecting goods to donate to the relief effort.

From Staten Island, I could see the smoldering Ground Zero. It was surreal. The skyline looked so very empty. To this day, whenever I look at the Skyline, a sight I had seen thousands of times, I have the most bizarre feeling. Additionally, whenever we saw an airplane fly overhead, we all freaked out. This lasted for months.

For days, weeks, and months after 9/11, people in Staten Island were waiting for their loved ones to come home. Many patients were alive, but were so badly burned that they could not be identified. People prayed that these unnamed patients would soon come home. One woman whose husband was a firefighter waited outside her home every single night for months. She eventually put a candle in her window every night. Later, she put a memorial lamp in her window. He never came home. Others were simply waiting for remains of their loved ones to be returned. Many were never identified.

I ordered a gas mask from eBay, which I kept in my car, fearing a biological weapon attack on New York City. I remember I tried it on once and I almost suffocated. It is actually still in my trunk, 4 cars later [Update: In July of 2012, I finally traded in the Galt Mobile. I now have a 2012 Ford Escape. And I got rid of the gas mask]. I wanted to order some Cipro for an anthrax attack, but I could not locate any.

It is hard to encapsulate what a New Yorker went through on 9/11. Thinking back on that day, when I was just 17 years old, I realized that I had to grow up awfully quick. It was a new world we were living in.

Never forget. Ever.

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Sep 8, 2016

RBG, Who Apparently Learned Nothing, Offers Advisory Opinion and Criticizes Senate Republicans

The Notorious RBG continues to earn her nickname. According to Bob Barnes (who I think has the most complete account of her remarks yesterday at GULC), RBG was asked about the advice and consent process. The answer should have been, “I can’t comment.” Instead, she went ahead and offered an advisory opinion of a now-pending federal lawsuit that is attempting to force a vote on Garland.

“If the Senate is not acting, what can be done about it?” Ginsburg asked rhetorically. “Even if you could conceive of a testing lawsuit, what would the response be? ‘Well, you want us to vote, so we’ll vote no.’ ”

Of course RBG is correct–the lawsuit has no legs–but she should not go out of her way to opine on pending cases that could, in theory, come before the Court. But, of course, she couldn’t stop there.

“I do think cooler heads will prevail, I hope sooner rather than later,” Ginsburg said. “The president is elected for four years not three years, so the power he has in year three continues into year four.”

“Maybe members of the Senate will wake up and appreciate that that’s how it should be.”

This is similar to what she said in July–that the Senate has the obligation to vote on the President’s nominees.

“That’s their job,” she said. “There’s nothing in the Constitution that says the president stops being president in his last year.”

RBG needs to reread her Constitution. No one has argued that the President’s term is over. He “shall” nominate, and he did. But the Constitution imposes no corollary duty on the Senate. I’ve now debated this topic more times than I can count, and every debate ends the exact same way–“well the text is on your side, but there is a general principle or precedent being ignored.” Fine. Valid argument, but it is inherently a policy-laden judgment. There is no constitutional argument a Justice could ever rule on.

But RBG’s tone criticizes Republican Senators for not having “cooler heads.” She hopes they will “wake up” and “appreciate” that her vision of constitutional law is not “how it should be.”

Update: Bob Barnes included in his story this line:

“I hope that’s not too political,” she said, to laughter. “Sorry.”

I misread it, and thought “she” referred to RBG, but it referred to a student asking a question. My mistake.

I continue to dread the possibility that there will be some presidential-related matter that comes before the short-handed Court. RBG has done herself no favors.

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Sep 6, 2016

Judge Hanen Retains Jurisdiction To Enforce Unstayed Injunction During Pendency of Appeal

During the hearing in Unites States v. Texas, the attorney representing MALDF and Jane Does explained that because the motion for reconsideration before the Supreme Court is still pending, Judge Hanen lacks jurisdiction to enforce his sanctions order that was issued in May. I don’t think that is correct. Under Supreme Court Rule 44, before the mandate is issued, the lower court proceedings are stayed. But that does not affect the court’s inherent authority to enforce an injunction that is not stayed.(Here, the 5th Circuit declined to stay the injunction, and inexplicably, the government did not seek a stay from SCOTUS). The sanctions are connected with the failure of the government to comply with the injunction.

There is precedent here from the long-running case of United States v. Microsoft. On December 11, 1997, the district court granted a preliminary injunction to prevent Windows from requiring that manufacturers include Internet Explorer 4.0 on their computers running Windows 95. (This entire suit seems so quaint by today’s standards!). On December 16, Microsoft filed its notice of appeal to the D.C. Circuit (97-5343). The following day, on December 17, the Justice Department filed with the district court a motion for judgment of civil contempt and to enforce the preliminary injunction. DOJ alleged that Microsoft’s public response flouted the court’s judgment.

Microsoft has cynically acted as if the preliminary injunction permits it to perpetuate the very conditioning the Court enjoined. Microsoft’s naked attempt to defeat the purpose of the Court’s Order and to further its litigation strategy is an affront to the Court’s authority; the Court
accordingly should hold Microsoft in civil contempt and act swiftly to bring it into compliance. FN1

FN1. This Court, of course, retains jurisdiction to enforce the unstayed preliminary injunction during the pendency of Microsoft’s present appeal. See Deering Milliken, Inc. v. FTC., 647 F.2d 1124, 1128-29 (D.C. Cir. 1978). See generally 16 Charles A. Wright et al., Federal Practice and Procedure &167; 3921.2, at 56-58 (2d ed. 1996).

This footnote is critical. When the injunction is not stayed, even though an appeal was already pending, the district court retained complete jurisdiction to enforce (through contempt if necessary) its injunction.

Deering v. Milliken is instructive. The per curiam order (joined by Judges David Bazelon, Judge Spottswood Robinson, and District Judge Aubrey E. Robinson, Jr.) is directly on point:

It is well established that the District Court is without jurisdiction to alter a judgment of its own while an appeal therefrom is ongoing.10 But it is equally clear that the vitality of that judgment is undiminished by pendancy of the appeal. Unless a stay is granted either by the court rendering the judgment or by the court to which the appeal is taken, the judgment remains operative.11 To be sure, for as long as the appellate court retains its mandate it maintains its jurisdiction over the case,12 and thus the power to alter the mandate.13 But non-issuance of the mandate by the appellate court has no impact on the trial court’s powers to enforce its unstayed judgment since the latter court has retained that power throughout the pendancy of the appeal.14

FN 11 provides:

Hovey v. McDonald, 109 U.S. 150, 161, 3 S.Ct. 136, 143, 27 L.Ed. 888, 891-892 (1883) (“an appeal from a decree granting, refusing or dissolving an injunction does not disturb its operative effects”); Gullett v. Gullett, 85 U.S.App.D.C. 12, 14, 174 F.2d 531, 533 (1949); Weston Lighting Corp. v. Smoot-Holman Co., 352 F.2d 1019, 1020-1021 (9th Cir. 1965); United States v. City of Chicago, 411 F.Supp. 218, 246 (N.D.Ill.1976), modified, 549 F.2d 415 (7th Cir. 1977). See also 9 J. Moore, Federal Practice P 208.03, at 1407-1408 (2d ed. 1948):
The only consequence of failing to obtain a stay is that the prevailing party may treat the judgment of the district court as final, notwithstanding that an appeal is pending. If the judgment awards money or property, it may be executed upon unless stayed; if it awards an injunction, the injunction is effective unless stayed; if it refuses an injunction, the prevailing party may engage in the conduct that was sought to be restrained unless an injunction pending appeal is obtained
(footnotes omitted).

The most recent issue of Wright & Miller–citing Milliken–maintains this rule:

Because an appeal does not suspend the operation of the district court’s judgment, the mere fact that a court of appeals has stayed its own mandate will not affect the operation of an unstayed district court judgment.

§ 3954 –  Motion for a Stay or Injunction, 16A Fed. Prac. & Proc. Juris. § 3954 (4th ed.)

What does this mean? Even though the Supreme Court has not yet issued the mandate in U.S. v. Texas (while the motion for reconsideration is pending) the district court retains all jurisdiction to enforce its unstayed injunction. Had the USG sought a stay from SCOTUS of the preliminary injunction, the situation would be different, but that didn’t happen.

Why does this matter? If EDNY declares that Judge Hanen’s injunction does not apply in New York, and DHS official try to enforce it, Judge Hanen (on Texas’s motion) could hold them in civil contempt.

H/T to John Bursch, and his encyclopedic knowledge of appellate procedure.

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Sep 4, 2016

NY Times Quotes Me on Taney Statue

Sheryl Gay Stolberg of the New York Times interviewed me about recent efforts to get rid of statues dedicated to Chief Justice Taney in Maryland. I wrote about this topic last year in the context of Taney bust at the Supreme Court, after some vandals poured red paint on a Taney bust in Frederick, MD. Distilling a 45-minute interview down to two sentences is always tricky, but I think Stolberg did a good job.


First, I attempted to convey that Taney is far from the only Justice who said things which would be unacceptable by modern standards. I am ebullient that she included John Marshall’s “fierce savages” line from Johnson v. M’Intosh, as it serves as a helpful respite from the conventional (undeserved) Marshall hagiography. I also told her about John Marshall Harlan’s barbs against Chinese people in Plessy (the forgotten parts of that dissent), Brandeis’s brief in Muller v. Oregon about the frailty of women, and Holmes’s awful attacks on “imbeciles” in Buck v. Bell.  Those references didn’t make it in, but it gets the point across.

Second, the point about Taney being an “originalist” came during my discussion of Dred Scott and substantive due process. That wasn’t exactly my point, and I in fact explained that Taney totally screwed up the history of freed blacks in the North, but close enough.

Third, the quoted line should have been “The [Reconstruction] amendments to the Constitution are the greatest buckets of paint to Mr. Taney.” Truly, having Taney around serves as a reminder of how significant the 13th, 14th, and 15th Amendments were. The Supreme Court didn’t overturn Dred Scott. Article V did.

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Sep 2, 2016

University of Memphis Federalist Society Debate on #SCOTUS Under Trump or Clinton

On Thursday, September 1, the University of Memphis Federalist Society hosted me for a debate on the Supreme Court under a Trump or Clinton Presidency. My esteemed debating partner was Dean Steven Mulroy. We covered a wide range of topics, including the current confirmation battle, what happens after the election, and what happens to the Court’s case law if Trump or Clinton is selected. Kudos to Dean Mulroy for engaging the topic. Often these debates are debate in name only. But there was some healthy back-and-forth here that the students really appreciated.





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Aug 31, 2016

Update from Hearing in United States v. Texas

Today I took a quick detour to Brownsville, Texas for the latest hearing in United States v. Texas (although I did not cross the border as planned). After following this case so closely over the past two years, I wanted to finally see Judge Hanen in action. This hearing was originally put on the calendar as a status conference, but in light of the sanctions order, and the currently pending petition for rehearing before the Court.

First, all of the parties agreed that while the petition for rehearing was pending, under Supreme Court Rule 44, Judge Hanen should put the case on hold, and not proceed to summary judgment (the logical step after the preliminary injunction stage).  Judge Hanen ruled that the case is stayed, and the parties are directed to file briefs 30 days after the Court resolves the pending motion.

Second, subsequent to Judge Hanen’s sanctions order (which I discussed here), DOJ filed a number of affidavits under seal from high-ranking officials in the Obama administration, explaining how the three-year renewals were granted. Judge Hanen repeated several times that he requested such affidavits a year ago, but were only provided after the sanctions order was issued. Hanen asked, several times, whether he should even consider these new affidavits. He compared it to a losing party in a trial asking to put on witnesses after the verdict. Texas took no position on this issue because they had only seen redacted portions of the declarations.

Third, in Judge Hanen’s sanctions order, he directed the federal government to file under seal the personally identifiable information of those who were erroneously granted three-year extensions. The government and intervenors objected. Judge Hanen suggested that rather than filing the information under seal, the government lodges the list with the Justice Department. The government lawyer said the idea was “intriguing” and would confer with his clients and get back to the court today.

Fourth, the longest part of the hearing was the government’s effusive apology. I transcribed it as best as I could, although I’m sure I missed a few words here and there:

“We are sorry for the mistakes we made that led to this situation. We are sorry for leading this court to believe that it has been deceived. We are sorry for the court’s time and energy this matter has consumed. We hope these sworn declarations we have submitted have provided the assurance the court was looking for. None of what has occurred was ever intentional on the part of any attorneys. We are extraordinarily grateful the court extended the opportunity to provide that evidence. We think it shows quite powerfully in detail, over 100 pages in sworn testimony that demonstrates that there was never any intent to deceive the court about three year deferred action, or conceal that action. So we think the just course is the court can consider that evidence, and come to the just result, to which that evidence lads, which is the court’s May 19 sanctions order be withdrawn. Regardless of how this court rules, Mr. Mizer, head of the Civil Division, has directed course of supplemental training for all civil division attorneys—approximately 1,000—including myself.”

From my vantage point, the apology seemed absolutely genuine and sincere. Judge Hanen was grateful for the apology. He replied, “I greatly appreciate he has done that. I think it’s a worthy step.”  A step, but not a complete resolution of the issue.

After further pressing from Judge Hanen, the lawyer cited the “fog of war” and the tough time pressures of the case as to why DOJ made false statements to the court. Judge Hanen’s followup question, in my mind, was not completely answered. The court asked that if the government thought the three-year extensions were lawful, why did they disclose it. The lawyer cited the “simultaneity of several factors.” Judge Hanen did not seem completely satisfied.

Fifth, Judge Hanen then asked a series of questions about what training DOJ lawyers take in the rules of ethics in the jurisdiction they practice in. For example, are lawyers expected to read the Texas Rules of Ethics before arguing a case in a Texas court. “How do you know if you are complying with the rules of ethics in Texas,” Hanen asked, “if you’ve never read it?” The DOJ lawyers candidly said he did not know the answer to the question, but added “the transcript of this hearing will be widely read in Department, and will be taken note of.” I thought he handled that question about as well as an advocate could.

Finally–and perhaps most importantly–the lawyer from the Texas Attorney General’s office raised the issue of the lawsuit recently filed in the Eastern District of New York by the National Immigration Law Center, Yale Law School, and several other groups. The plaintiff is an individual who received the three-year DACA extension during the brief time between Judge Hanen’s injunction and when the government disclosed it (the so called “gap period”). The plaintiff asserts that he is entitled to the three year extension because Judge Hanen’s injunction is not valid in New York. The 5th Circuit ruled that the nationwide injunction was valid, so this case is a (naked) collateral attack on Judge Hanen’s nationwide injunction–and a very crafty one at that.

I will write far more about this case in due time, but there are two things for you to look out for. First, whether the Justice Department challenges the suit (as it should) by asserting the individual has no standing to assert discretionary relief, and second, whether the Justice Department argues that Judge Hanen’s injunction is currently in force in New York. Institutionally, it will be very difficult for the government to abandon the first standing argument, because it would have wide-ranging implications for the government’s general defense that parties cannot litigate discretionary relief in court. Further, allowing this suit to go forward weakens their broader argument that DACA and DAPA are entirely discretionary, and there is no substantive right to this administrative relief. If would-be recipients can petition for a grant of relief, than it is not discretionary.

The second argument is far more significant. The 5th Circuit ruled that the nationwide injunction was valid. The Supreme Court’s 4-4 decision did not disturb that. It would be breathtaking for DOJ to argue that a uniform immigration policy can be applied differently in different states. To say nothing of the obvious spillover effects–DACA beneficiaries are free to travel to Texas (even if the Plaintiff in Brooklyn disclaimed any intent)–I can see a situation where the enjoined federal officials could be held in contempt of court by the Southern District of Texas if they permit a three-year DACA grant in Brooklyn. Granting the three-year authorizations would be flouting the injunction that is still in effect–notwithstanding the stay imposed by SCOTUS Rule 44. Judge Hanen retains jurisdiction to enforce the injunction.

This case is from over. Stay tuned.

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Aug 31, 2016

Not crossing the border…

I flew into Brownsville this morning to attend the hearing in U.S. v. Texas, with every intention to drive across the border and get lunch in Mexico. (Due to another high profile visit today, I certainly would not be the most unpopular American tourist).

Change of plans.

With my passport in tow, I asked the agent at the Hertz counter, Blanca, if I could buy insurance that works across the border (a phrase I never thought of before in this context). She told me no. Huh? I asked if they don’t sell it? She replied that she could, but it wasn’t safe for me not to go. Blanca explained that it is far too dangerous, and even though her parents are dual citizens, they refuse to go. She showed me some news articles about random shootings in the streets a few blocks from the border. (The thought of the border-crossing bullet crossed my mind). Blanca added I am too white, and would be a prime target for a robbery or kidnapping. No argument there.

I’ll post later tonight after the hearing. Stay tuned.

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Aug 30, 2016

Headed to Brownsville for Hearing in U.S. v. Texas

On Wednesday, August 31, Judge Hanen will hold a hearing in Brownsville to discuss what happens on remand in U.S. v. Texas. I’ll be there. After living through this case over the past two years, I finally found a day when I could attend a hearing. The plan is to fly to Brownsville early in the morning (it’s a 90-minute flight), and fly back later that night. I will report back on whatever transpires.


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Aug 30, 2016

#Unraveled Tour Schedule

Throughout the fall semester, I will be talking about Unraveled and other topics at the following events.  I hope to see you there:

  1. University of Memphis Federalist Society Chapter (Sept. 1, 2016).
  2. Southern Methodist Univeristy Federalist Society Chapter (Sept. 6, 2016).
  3. Texas A&M Federalist Society Chapter (Sept. 7, 2016).
  4. Florida Appellate Judges Educational Conference in Naples, FL (Sept. 8, 2016).
  5. Houston College of Law Constitution Day (with Judge Greg Costa, CA5) (Sept. 13, 2016).
  6. George Mason University Federalist Society Chapter (Sept. 14, 2016).
  7. Cato Constitution Day (Sept. 15, 2016).
  8. Indiana University, Bloomington Federalist Society Chapter (Sep. 20, 2016).
  9. Indianapolis Lawyers Federalist Society Chapter (Sept. 21, 2016).
  10. Houston Lawyers Federalist Society Chapter (Sept. 22, 2016).
  11. Georgetown University Law Center (Sept. 27, 2016).
  12. Cato Institute Book Forum (Sept. 28, 2016).
  13. New Jersey Lawyer’s Federalist Society Chapter (Sept. 28, 2016).
  14. Columbia Law School Federalist Society Chapter (Sept. 29, 2016).
  15. NYU Law School Federalist Society Chapter (Sept. 29, 2016).
  16. Georgia State Federalist Society Chapter (Oct. 5, 2016).
  17. Northern Illinois Federalist Society Chapter (Oct. 13, 2016).
  18. Harvard University Federalist Society Chapter (Oct. 17, 2016).
  19. Northwestern University Federalist Society Chapter (Oct. 18, 2016).
  20. University of Illinois (Oct. 19, 2016).
  21. Institute for Justice Conference on Economic Liberty in Austin (Oct. 20, 2016).
  22. University of Texas Federalist Society Chapter (Oct. 20, 2016).
  23. Birmingham Lawyer’s Federalist Society Chapter (Oct. 26, 2016).
  24. Montgomery Lawyer’s Federalist Society Chapter (Oct. 28, 2016).
  25. University of Missouri Federalist Society Chapter (Nov. 2, 2016).
  26. University of Kentucky Federalist Society Chapter (Nov. 3, 2016).
  27. Loyola Constitutional Law Colloquium (Nov. 4, 2016).
  28. University of Chicago Federalist Society Chapter (Nov. 7, 2016).
  29. Harvard Law Review Forum (Nov. 14, 2016).

At this point, my fall semester is just about completely booked. I have a few empty days here and there, but I will be happy to schedule some talks for the spring semester. Please drop me a line. (And in case you are wondering, I have a sabbatical this fall, so no classes scheduled).

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Aug 24, 2016

New From The Green Bag: “First 4” Supreme Court Sluggers

Ross Davies and his creative team at The Green Bag continue to impress with creative SCOTUS bric-a-brac. The latest is a series of five baseball cards dedicated to the “First 4” Supreme Court Sluggers: Justices O’Connor, Ginsburg, Sotomayor, and Kagan.

Here is a front shot of the five cards.



The “Thought Bubble Gum” includes a quote from RBG’s opinion in United States v. Virginia:

“[N]either federal nor state government acts compatibly with the equal protection principle when [it] denies to women, simply because they are women, full citizenship stature–equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities”


The backs of the cards are tributes to other famous women who blazed trails before the Supreme Court.


The card commemorates Myra Bradwell (from Bradwell v. Illinois) and Belva Lockwood (first female to become a member of the SCOTUS bar, and argue a case).



You can even request a special, limited-edition Belva Lockwood Bobblehead!


The backs of the cards also list the portraits of the four female Justices:


The series is based on a 1935 baseball card.

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Aug 22, 2016

On Houston Public Radio to Talk about Prayer in the Public Square

On Friday, I was a guest on Houston Matters–a local public radio show–to discuss prayer in the public square. It was an extended discussion that touches on Establishment Clause jurisprudence over the last five decades.

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Aug 19, 2016

Posner: “I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record…”

The Seventh Circuit continues to troll everyone who thinks appellate judges should stick to the record. Construction and General Labor v. Town of Grand Chute considers a local ordinance that restricts the placement of one inflatable rats, that unions use to shame employers. Judge Easterbrook wrote the majority opinion:

This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union‐scale wages. Cats too—inflatable fat cats, wearing business suits and pinkie rings, strangling workers.

Judge Posner’s concurring opinion, to demonstrate that the rats are not nuisances, explains that he often passes a similar rat on his commute from Hyde Park.

I’ll scandalize some readers, who think it improper for a judge to stray outside the official trial record, by sharing with them my experience with a roadside union rat. I some‐ times drive to work on a major divided highway called Mar‐ tin Luther King Drive, which runs north from Hyde Park, where I live, south of downtown Chicago, to downtown. As one nears the downtown on MLK Drive one sees (or rather saw, because during the long gestation of this case the rat— alas!—was removed, whether because the labor dispute be‐ tween union and employer was resolved or for some other reason), on the east side of the street, a large inflated rubber rat named Drape (short for Draper and Kramer, the employ‐ er with whom the union that put up that rat was fighting). Every time I drove past the rat I glanced at it, as it was the only noteworthy sight on my route. This glance never caused me to swerve, crash, crouch in my seat, avert my eyes, hit a pedestrian, or cause other mayhem. Nor did I ever observe an accident, even a swerve, in the vicinity of the rat. I saw no driver, or pedestrian, upon glimpsing the rat flee in terror. And yet this rat, like its Grand Chute cousin, was close to a major street—in fact much closer than the Grand Chute rat was to a major street; for while the Grand Chute rat was 70 feet from the highway, my Chicago rat was only about three feet from MLK Drive.

He even took pictures (hopefully not while driving):

I took a close‐up photo of the rat, and another photo of it from across the street. Here are the two photos:



Posner concludes:

I can’t imagine that any driver seeing Drape either close up or from across the street would have been distracted to the point of endangerment.


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Aug 18, 2016

Posner: State Department Confirms Wikipedia Entry

Only Judge Posner would first cite WIkipedia, and then cite a State Department Human Rights Report to “confirm” Wikipedia. His dissent in Fuller v. Lynch considered a removal case where the alien asserted he would be subject to persecution in his native Jamaica because he was bisexual. To show that in fact Jamaica has a hostile culture towards the LGBT community, Posner cites (what else?) Wikipedia.

Fuller testified before the immigration judge at length and in detail about his being bisexual and having had nu‐ merous sexual relationships with both men and women be‐ ginning when he was a pre‐teen, and about the hatred directed against LGBT persons in Jamaica, including by members of his own family. He testified that in college he was stoned by other students on several occasions and a few years later taunted as gay by a group of men who sliced his face with a knife. On another occasion he was robbed at gunpoint by a man who called him a “batty man,” which is a Jamaican slur for a homosexual. And he didn’t make that up: see “Batty boy,” Wikipedia, (last visited Aug. 17, 2016, as were the other web‐ sites in this opinion), where we learn that “in 2006 Time Magazine claimed that Jamaica was the worst place in the Americas for LGBT people and one of the most homophobic places in the world.

Later in the paragraph, we learn that our State Department agrees with Wikipedia.

Our State Department’s Human Rights Reports for 2012 and 2013 confirm the Wik‐ ipedia entry, as do a report by Amnesty International and a decision by another federal court of appeals: Bromfield v. Mukasey, 543 F.3d 1071, 1076–77 (9th Cir. 2008). The immi‐ gration judge’s opinion is oblivious to these facts.


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Aug 17, 2016

The Supremacy Clause Does Not Prohibit States From Legalizing Controlled Substances

Judge O’Scannlain, writing for a 9th Circuit panel in U.S. v. McIntosh, concluded that a appropriations rider prohibited DOJ from spending any money to enforce the Controlled Substances Act “to prevent [various] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” As a result, the court dismissed prosecutions as violations of the appropriations clause.

I don’t have any thoughts on the construction of the omnibus budget, but there is one dictum in Judge O’Scannlain’s opinion that is not exactly correct. Footnote 5 on the final page of the opinion states:

Nor does any state law “legalize” possession, distribution, or manufacture of marijuana. Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits. U.S. Const. art VI, cl. 2. Thus, while the CSA remains in effect, states cannot actually authorize the manufacture, distribution, or possession of marijuana. Such activity remains prohibited by federal law.

The final quoted sentence is absolutely correct. Under Gonzales v. Raich, possession of a controlled remains prohibited by federal law, regardless of what the state law enacts. Justice Stevens explained in Raich:

The Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail.

However, the Supremacy Clause does not require California, or any other state, to enact laws criminalizing marijuana. In fact, such a mandate would amount to unlawful commandeering. California remains free to either not criminalize marijuana, or in fact authorize its possession. Utilizing its own resources, it can direct its state officers not to prosecute anyone for possession. If the federal government doesn’t like that, it can DOJ agents into California to arrest people for possession of marijuana that is legal under state law. This is precisely what happened to Angel Raich.

So this sentence, “Under the Supremacy Clause of the Constitution, state laws cannot permit what federal law prohibits,” is not complete. This sentiment only becomes relevant if a defendant raises the state law as a defense to a federal marijuana prosecution. At that point, the federal court would cite the Supremacy Clause, and hold that the state law is preempted. Or DOJ could sue to block the enforcement of the law (like in Arizona v. United States), arguing that it is interfering with federal priorities. But a state is well within its own power to have a law on the books legalizing marijuana, not expend its own resources to criminalize marijuana, and hope the federal government doesn’t waste its time doing the same.

I’ve blogged about this misconception concerning the supremacy clause in the context of a Colorado employee who was fired for marijuana use, even though it was legal under state law. (The opinion was authored by one of the Trump short-listers, Justice Eid).


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Aug 17, 2016

#Unbreakable or #Undone

Just as soon as Unraveled is completed, the next chapter in this Obamacare trilogy opens up. By now, you should have read that Aetna is pulling out of virtually 11 out of the 15 ACA exchanges. Humana is also dropping from 15 states to 11 states. UnitedHealth will offer policies on “three or fewer exchanges.” In one county in Arizona, there will not be any ACA policies on the exchange. A number of states will have only one policy available. Alaska came close to having none, but the legislature bailed out the remaining provider.

What caused Aetna’s withdrawal? Jonathan Cohn and Jeffrey Young obtained through FOIA a letter Aetna’s CEO sent to DOJ Antitrust Division. (The Obama administration finally found a FOIA request that it quickly turned around, huh?) In short, the letter states that if Aetna’s merger with Humana goes forward, the “anticipated synergies” will allow the company to expand coverage on the exchanges. However, if the merger is blocked, due to the lack of such “synergies,” the company would have to scale back its exchange coverage. Aetna wrote:

Specifically, if the DOJ sues to enjoin the transaction, we will immediately take action to reduce our 2017 exchange footprint. We currently plan, as part of our strategy following the acquisition, to expand from 15 states in 2016 to 20 states in 2017. However, if we are in the midst of litigation over the Humana transaction, given the risks described above, we will not be able to expand to the five additional states. In addition, we would also withdraw from at least five additional states where generating a market return would take too long for us to justify, given the costs associated with a potential break- up of the transaction. In other words, instead of expanding to 20 states next year, we would reduce our presence to no more than 10 states.

Cohn and Young call it a “threat.” Nick Bagley writes that, “’there’s something disquieting about its thinly veiled suggestion that the Justice Department should bless anti-competitive conduct for short-term political advantage.” My perspective? Aetna made their Faustian pact–now they have to deal with it.

Aetna and their ilk wholeheartedly supported a law they thought would make them lots of money–can you imagine a government mandate to buy your product! They severely miscalculated. Everyone from Jonathan Gruber on down all suffered from the same fatal conceit: if we tinker with subsidies like this, and risk adjustment like that, and structure these risk corridors, then presto, we can erect a magical, dynamic marketplace. When I wrote Unprecedented, I expected the law to chug along for at least a decade before it seriously started to show signs of failing. Boy was I wrong. Now Aetna is in the position that without expanding the size of their risk pools–necessarily through mergers, because enrollments are flat–they can’t afford the law’s onerous mandates and community rating provisions. So now they’re stuck.

Seth Chandler wrote a painstakingly detailed post on whether the ACA is collapsing. Towards the end of the post, Seth uses an image I created in Unraveled about how the ACA is creeping up on the death spiral’s event horizon.

When you see the rapid contraction of the marketplace, when you see gross premiums increasing by more than 20%, and when you yourself are calling for the federal government to spend considerably more on Obamacare, it is time to admit that the existing Obamacare spaceship is passing the event horizon of the adverse selection black hole. Another quest for the unicorn of community rated health insurance has failed.

At some point in the future, I will complete the Obamacare trilogy  (likely publication date in the fall of 2020, around the next election, assuming the Republic is still standing). To keep with the theme, my working titles are #Unbreakable or #Undone. That is, over the next four years, the long-term viability of Obamacare (HillaryCare II?) will become well known. Either the law will survive, against all odds, or it will have to be completely reworked to prevent its implosion. You can probably guess what my prediction is, but I’ll leave my options open.

Update: The WSJ has a fitting take on the release of the letter:

This is some gall. Aetna was answering a June 28 “civil investigative demand,” in which Justice’s antitrust division specifically asked how blocking the merger would “affect Aetna’s business strategy and operations, including Aetna’s participation of the public exchanges related to the Affordable Care Act.”

Soliciting sensitive internal information that Aetna is legally compelled to provide—and then making it public to sandbag the company—is the behavior of political plumbers, not allegedly impartial technocrats. If police tried this, it’d be entrapment

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Aug 17, 2016

I Dream of #SCOTUS – #Unraveled Breyer Edition

I often dream about the Supreme Court. Don’t try to psychoanalyze me–just go with it. Last night I dreamt that I was sitting next to Justice Breyer, and showing him the galleys for Unraveled. The first thing he did was the “Washington read.” He quickly flipped to the index to see how many times his name was mentioned. I can’t tell you how many people did this for Unprecedented, and told me–complained, really–that their names weren’t listed enough. I expect similar complaints this go-around, because Cambridge does not index the names of authors in the footnotes.

In any event, after checking out his own name, Breyer flipped to the other justices to see how many times they were listed in the index. I remember telling him that because Justice Thomas doesn’t ask any questions, he’s not in the book very often. I also remember seeing a typo in the manuscript–which I am positive is actually there–but I have no recollection of what it was. I’ll see it once the book is published.

Well Justice Breyer, in case you were trying to contact my subconscious, here are your entires in the index of Unraveled.

Breyer, Stephen G. (Justice), 6, 294

King v. Burwell and, 479
on Medicaid expansion, 546
NFIB v. Sebelius and, 122–123
nomination of, 487–488
religious freedom rulings and, 254, 306, 308
Supreme Court budget hearings and, 418
on Supreme Court building, 515
Wheaton College ruling and, 310
Zubik v. Burwell and, 505–508, 516–517, 521, 523, 534

And here is Justice Thomas’s far-more paltry index listings:

Thomas, Clarence (Justice), 78, 123, 229, 250, 343, 442, 479, 481

on Medicaid expansion, 546
nomination of, 486–487
Zubik v. Burwell and, 521

By far, the Justice with the most mentions in this Obamacare book is (shocker) the Chief:

Roberts, John (Chief Justice), xxiii

Cruz and, 465–467
defunding proposals for ACA and, 25
on former chief justices, 432–433
on Garland nomination, 492
individual mandate in ACA and, 91, 116–117, 190, 344, 346
on judicial nominations, 230–231
King v. Burwell and, 387–388, 399–402, 433–435, 437–444, 465–467
on Medicaid expansion, 546
nomination of, 465–467, 487–488
religious freedom rulings and, 255–257, 261, 264, 293–294, 303
Scalia’s death and, 479–482, 520
Supreme Court rulings on ACA and, 59–60, 75, 77–78, 130, 251, 270, 291–292, 560
tax credits in ACA and, 122–123
Verrilli on, 518
Zubik v. Burwell and, 503, 508, 510, 512–514, 521, 524–527


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Aug 16, 2016

The Political Costs of Obamacare

In Unraveled, I develop the theme of the political cost of Obamacare. No–not the never-ending efforts of Republicans to repeal the ACA. Rather, what were the costs to the Democrats, and our polity at large, of forcing through this massive transformation of our society on a straight party line vote.

The Washington Post analyzes several of these “What Ifs?” in a series on President Obama’s legacy. The story begins in 2009, as his closest advisors urged him not to focus on Health Care right away.

The debate roiled Democrats, including some inside the administration, from the earliest days of the presidency. At the time, the nation remained beset by the economic turmoil sparked by the 2008 global financial meltdown, and many wondered whether health-care reform should be the top priority.

“I begged him not to do this,” former chief of staff Rahm Emanuel told a reporter in 2010, airing his preference for a hard focus on jobs and the economy even after the passage of the stimulus bill.

On Capitol Hill, many Democratic lawmakers, aides and consultants wondered — openly and not — about the political costs of the dogged pursuit of health-care reform. The costs were to be measured not only in congressional seats but in policy priorities.

However, by focusing on the ACA with majorities in both houses, the President put aside other major policy goals:

What would this mean for other major items on the Democratic agenda, ones requiring major outlays of presidential political capital? What about cap-and-trade, union “card check,” the Dream Act or the Employment Non-Discrimination Act — each one a major priority for key parts of the Democratic base?

None of those bills would pass the 111th Congress, even though for the first time in more than 40 years one party held the presidency and dominant majorities in both houses of Congress.

I distinctly remember in 2010 talks about the President turning to cap-and-trade, card check, and the Dream Act once health care was done. Didn’t happen.

As a result of the ACA, many Democrats lost their seats:

The GOP leveraged Obamacare into massive political gains, and they didn’t end with the profound Democratic losses in the 2010 midterms. By the last year of the Obama administration, his party had lost 14 Senate seats, 68 House seats, 12 governorships and hundreds of state legislative seats.

One academic paper suggested that the Obamacare vote alone cost the Democrats roughly 25 House seats — the difference between a historic landslide and two more years in the majority.

The Senate remained under Democratic control until 2015, but a Republican House majority, with an ascendant cadre of hard-line tea party conservatives unwilling to compromise, meant that Obama’s progressive agenda was a dead letter two years into his presidency.

And the rest of his presidency focuses on keeping the government funded:

Card check and cap-and-trade were out. A series of high-stakes fiscal cliffhangers were in, starting with a showdown over a potential U.S. credit default that ended in a deal forcing years of spending cuts that reined in Obama’s domestic ambitions.

Rather than take a Clintonian move to the middle, instead Obama turned to his pen and phone.

Fifteen years earlier, President Bill Clinton took his own midterm lumps and proceeded to make a centrist peace with new GOP House Speaker Newt Gingrich (Ga.), cutting deals on welfare reform, crime and other bills. With the exception of a brief and unsuccessful attempt at a fiscal “grand bargain” in 2011, Obama did not seek compromise at a Clintonian scale — the gulf between his progressive agenda and a hard-right House majority was too wide, and seemingly unbridgeable.

When he did seek to push a controversial priority though Congress — notably, seeking to expand firearm background checks — he lost. Instead, he shifted his efforts away from a branch of government he did not control to the one he did. His domestic legacy would be written in policy memos and the obscure pages of federal agency rulemakings.

The Keystone XL pipeline would not be built; power plants would emit less carbon dioxide; investment advisers would adhere to higher standards; and environmental regulators would have new authority over U.S. waterways. The Obama administration did those things by itself over the loud objections of the Republican Congress.

I’ll have an entire chapter on this theme in the book–stay tuned.

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Aug 15, 2016

#Unraveled Tour: Coming to a City Near You

Starting in September, I will be traveling across the country to discuss Unraveled. I have events scheduled in New York, New Jersey, Virginia, D.C., Illinois, Arizona, Texas, Massachusetts, Alabama, Pennsylvania, Georgia, and other places. If you are interested in hosting me for an event, please drop me a line. I am on sabbatical during the fall semester, so I have far more flexibility than usual to schedule events. (Believe it or not, this will be my fifth year teaching). I hope to see you soon!



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