Feb 24, 2015

ConLaw Class 12 – Scope of Federal Powers III

The lecture notes are here. The live chat is here.

Scope of Federal Powers III

  • Taxing Power (637-643).
  • The Spending “Power” (643-645).
  • United States v. Butler (645-648).
  • South Dakota v. Dole (648-656).
  • New York v. United States (657-670).
  • Printz v. United States (670-683)


Baiely v. Drexel Furniture Co. (The Child Labor Tax Case)

The Drexel Furniture Company was established on November 10, 1903 in Drexel, North Carolina. B

By 1968, after several acquisitions, the company became known as the Drexel Heritage Furnishings, Inc. It is still known as that today.

Here is a photograph form 1906 of the Drexel Furniture Company in  Drexel, North Carolina that employed child laborers.



The company’s first plant burned in 1906.  The plant pictured was built in two weeks after the fire and was identical to the first one. The plant consisted of two buildings. In 1917, the building got electricity.  An addition was added in 1918.


Steward Machine Company v. Davis (1937)

The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities.


I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.


Here is their modern-day image.

Steward Machine   Steward  Steward Machine  Steward machine Company  Steward Machine Co.  Steward machine Co.  Inc.  Earle  Earle Gear  Earle Gear Co.  Earle Gear Reducer  Earle Gear Reducers  Earle Speed Reducer  Earle Speed Reducers  Ear

United States v. Butler

This is President Roosevelt signing the Agricultural Adjustment Act into law.


And some cartoons.




South Dakota v. Dole

This case involved Secretary of Transportation Elizabeth Dole, whose husband (Viagra spokesman) Bob Dole, was a long-time Senator from Kansas, and Republican nominee for President in 1996.


Printz v. United States

The case of Printz v. United States was brought by two sheriffs. Sheriff/Coroner Jay Printz of Ravali County, Montana, and Sheriff Richard Mack of Graham County, Arizona. Both were the Chief Law Enforcement Officers (CLEO), subject to the background-check mandate of the Brady Act’s National Instant Criminal Background Check System. Printz was represented by Stephen Halbrook, and Mack represented by David Hardy.

I’ve spoken to both plaintiffs, and they are very interesting officers–they certainly look the part of CLEOs. Mack insists that the case should be called Mack v. United States, because his name came first alphabetically (docket numbers be damned!).

Following this case, Jay Printz would serve as Sheriff until 1999, and then became a member of the Board of the National Rifle Association. Richard Mack ran unsuccessfully for Congress in Arizona and Texas.

From left to right: Atty. Dave Hardy; Sheriff Richard Mack, Arizona; Sheriff Sam Frank, Vermont; Atty. Stephen Hallbrook; Sheriff Printz, Montana.


Sheriff Richard Mack at the Utah Capitol.


Stephen Halbrook arguing Printz v. United States. Note Justice Scalia has a hipsteriffic beard.


More pictures of Sheriff Printz








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Feb 23, 2015

“ISIS, Immigration, and Obamacare” at Loyola Law School Federalist Society

On Wednesday, February 18, the Loyola Law School Federalist Society Chapter kindly hosted me for a discussion on executive power. Here is the audio:

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Feb 23, 2015

Frank Underwolf Blows Down #SCOTUS on Sesame Street House of Bricks

In a hilarious parody of House of Cards, Sesame Street brings you Frank Underwolf on House of Bricks. I won’t spoil the ending, but Frank blows down a pig-inhabited Congress (made of straw), a pig-inhabited Supreme Court (made of sticks), and sets his eye on the pig-inhabited White House (made of bricks). As he notes, there is way “too much pork.”

Here are the highlights:wind about-to-blow blow blow-scotus underwolf justices-pigs scotus-sesame-1 scotus-sesame-2

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Feb 23, 2015

71 Minutes Later, Texas Files Letter Opposing Motion To Stay

Say what you will about DOJ’s dithering, but within 71 minutes of DOJ filing its motion for a stay at 10:28 a.m., Texas filed a letter opposing it.

It’s short, so here it is in its entirety:

The Plaintiff States write to oppose Defendants’ request for expedited consideration of their motion filed today to stay the Court’s preliminary injunction pending appeal. See Dkt. No. 150 at 7. As this Court found, Defendants have no emergency need to take applications for benefits under the new program. Mem. Op. & Order (Dkt. No. 145) at 118-21. Defendants have implicitly recognized as much, by waiting a full week from the preliminary injunction to file this stay motion. Indeed, if Defendants had any compelling claim of a looming, irreversible harm from temporary injunctive relief, they would have featured it previously. They had ample time to do so: Plaintiffs requested a preliminary injunction on December 4, some six weeks before this Court’s January 15 motion hearing.

Defendants are not enjoined from setting enforcement priorities and marshaling their assets. Id. at 123. Rather, Defendants simply take issue with this Court’s conclusions, such as:

  • the Plaintiff States “have clearly proven a likelihood of success on the merits”;
  • “there will be no effective way of putting the toothpaste back in the tube” if Defendants’ program is not enjoined until a final resolution of its lawfulness;
  • “any injury to Defendants, even if DAPA is ultimately found lawful, will be insubstantial in comparison to Plaintiffs’ injuries” should the program take effect;
  • temporarily enjoining Defendants’ program will “merely preserve the status quo that has always existed”; and
  • “[i]f the circumstances underlying this case do not qualify for preliminary relief to preserve the status quo, this Court finds it hard to imagine what case would.”

Id. at 112, 116, 117, 120, 121. Defendants’ desire to relitigate these issues does not justify a deviation from the Court’s normal briefing schedule, which would allow Plaintiffs 20 days to respond. Court Civ. Proc. 6(C). At the very least, Plaintiffs should be allowed to respond within the same seven days that Defendants enjoyed to prepare their motion after the preliminary injunction issued. It is unreasonable to demand that Plaintiffs respond, and the Court rule on the motion, in under three days.

Texas calls DOJ’s bluff, and asks for 7 days, not less than 3 days to reply.

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Feb 23, 2015

Breaking: DOJ Files Notice of Appeal and Emergency Expedited Motion to Stay Injunction Pending Appeal

In Texas v. United States, DOJ has (finally) filed a notice of appeal and an expedited motion to stay the court’s injunction pending appeal. I will add more analysis as I review the pleadings.

From the emergency motion, here is how DOJ explains why it will suffer “irreparable harm” absent a stay:

A stay pending appeal is necessary to ensure that the Department of Homeland Security (“DHS” or “Department”) is able to most effectively protect national security, public safety, and the integrity of the border. Specifically, the Deferred Action Guidance enjoined by this Court is an integral part of the Department’s comprehensive effort to set and effectuate immigration enforcement priorities that focus on the removal of threats to public safety, national security risks, and recent border crossers, thereby best securing the Homeland in the face of limited resources. Absent a stay, DHS will sustain irreparable harm—harm that would not be cured, even if Defendants ultimately prevail on that appeal. Allowing the preliminary injunction to remain in place pending appeal would also harm the interests of the public and of third parties, who will be deprived of the significant law enforcement and humanitarian benefits of prompt implementation of the Guidance. When these harms are weighed against the financial injuries claimed by Plaintiffs (and found by the Court only as to Texas), the balance of hardships tips decidedly in favor of a stay; the harms claimed by Plaintiffs are not imminent and are fully within their power to avoid.

DOJ also asks for a partial stay to limit the injunction to the state of Texas (the only party found to have standing).

Finally, Defendants request in the alternative a partial stay of the injunction to the extent that it purports to apply nationwide. The injunction vastly exceeds the relief necessary to redress the limited alleged harms the Court credited in its Opinion. Specifically, the injunction purports to extend beyond implementation of the Guidance in Texas (the only State whose claims of harm the Court credited) to States the Court did not find to have established any injury, and even to States that have informed this Court that they desire and expect to benefit from implementation of the Deferred Action Guidance. Thus, although a full stay is warranted, at the very least, the injunction should be stayed so that it applies only to the implementation of the Guidance in Texas.

I anticipated this move, though I thought it would come sooner. I explain here why a nationwide injunction is proper.

DOJ also explains that a temporary injunction cannot be issued merely to maintain the status quo, but to prevent an injury.

The Court’s assertion that the preliminary injunction merely preserves the status quo, Op. at 119, is not a sound basis for concluding that Defendants will not be irreparably harmed absent a stay pending appeal. The focus of the irreparable harm inquiry “must be on prevention of injury by a proper order, not merely on preservation of the status quo.” Canal Authority of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). By enjoining Defendants’ ability to implement guidance that the Secretary has determined is necessary in the exercise of authority vested in him by Congress to administer the immigration laws, the Order jeopardizes the efficiencies to immigration enforcement (and thus the protection of the Homeland) that the Guidance would otherwise be expected to provide, “making it more difficult [for the Department] to efficiently and effectively carry out its mission.” Saldaña Decl. ¶ 19. Defendants would thus unquestionably suffer irreparable harm if a stay is denied, regardless of whether the injunction is characterized as preserving or altering the status quo.

DOJ tells the court that absent a ruling by Wednesday, it will seek an emergency stay in the 5th Circuit.

In light of the immediacy of the harm to Defendants and the public in the absence of a stay of the Court’s Order, which prevents Defendants from complying with the timeline set forth in the Guidance for U.S. Citizenship and Immigration Services (“USCIS”) to begin accepting requests for deferred action, Defendants respectfully request expedited consideration of their motion and a ruling as soon as possible. Absent a ruling by the close of business on Wednesday, February 25, Defendants may seek relief from the Court of Appeals in order to protect their interests.

I suspect Texas will file a reply today or early tomorrow.

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Feb 22, 2015

Updated Version of “The Constitutionality of DAPA Part II: Faithfully Executing the Law.”

I have uploaded to SSRN a revised version of “The Constitutionality of DAPA Part II: Faithfully Executing the Law” that will be published in the Texas Review of Law & Politics. It still has to go through a few more rounds of editing, but the body is solid.

Here, I want to focus on one aspect of Judge Hanen’s opinion that has been widely criticized–the fact that he quoted President Obama’s statements that he lacks the power to independently defer deportations. For purposes of the Take Care Clause, these sorts of statements–disclaiming power and then claiming it after congressional defeats–is relevant to show good faith compliance with the Constitution.

The President’s seventh, and most pointed comments, came on March 6, 2014, during an appearance on Univision.[1] The host asked him about “Guadalupe Stallone from California, [who] is undocumented.  However, her sons are citizens.”[2] She feared deportation, even though her children could remain in the country. The President explained that he could not help Ms. Stallone. “[W]hat I’ve said in the past remains true, which is until Congress passes a new law, then I am constrained in terms of what I am able to do.”[3] DACA, he admitted “already stretched my administrative capacity very far.”[4] The President could go no further because “at a certain point the reason that these deportations are taking place is, Congress said, ‘you have to enforce these laws.’”[5] Citing Congressional power to distribute funding, the President reiterated, “’I cannot ignore those laws any more than I could ignore, you know, any of the other laws that are on the books.”[6] Under DAPA, Ms. Stallone’s deportation would almost certainly be deferred because she is a mother of minor citizen children. This is true, even though as the President explained, Congress imposed laws, and funded the agencies, so the President had to enforce the law.

However, leading up to November 2014, the President’s position evolved from “impossible” to “absolutely.” During this process, the President announced that in “the face of that kind of dysfunction, what I can do is scour our authorities to try to make progress.”[7] What limits exist on how far he can scour? The President explained that to resist the “temptation to want to go ahead and get stuff done” when “there’s a lot of gridlock  . . . .I’ve tried to . . . make sure that the Office of Legal Counsel, which weighs in on what we can-and-cannot do, is fiercely independent, they make decisions, we work well within the lines of that.”[8]

While claims of a supine OLC are nothing new—as the President has disregarded OLC’s opinion regarding “hostilities” in Libya[9]—this statement is particularly implausible because it was the President who personally pushed his legal team to go further and exert even broader assertions of executive power. The New York Times reported that the administration urged the legal team to use its “legal authorities to the fullest extent. . . .”[10] When they presented the President with a preliminary policy, it was a “disappointment” because it “did not go far enough.”[11] Scouring the bottom of the presidential barrel for more power, Obama urged them to “try again.”[12] And they did just that. Politico reported that over the course of eight months, the White House reviewed more than “60 iterations” of the executive action.[13] The final policy, which ultimately received the President’s blessing, pushed presidential power beyond its “fullest extent,” as it embodies discretion in name only. Further, the policy is in tension with numerous statements the President personally made explaining why he could not act alone.

The Washington Post Fact Checker awarded this reversal an “upside-down Pinocchio for his flip-flop.”[14] While flip-flops are par for the course in politics, and usually warrant no mention in constitutional discourse, they are salient for the “Take Care” clause. When the President repeats over and over again that he lacks the power to stop deportations, it has special salience that the Executive acknowledges the limitations imposed by the Separation of Powers—something the President rarely does.[15] This is true for Presidents “learned and unlearned in the law.”[16]

After the President disclaims inherent executive power, it sends a signal to the Congress: when voting, the Legislature can rest assured that if they vote against the law, it will not be done anyway. But when the President suddenly “discovers” such authority after Congress rebuffs his efforts, the usual framework for the democratic process and the rule of law itself is turned upside down.

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Feb 22, 2015

Video: “What Happens if Data is Speech?” At University of Illinois Federalist Society Chapter

On Thursday, February 19, the Illinois Federalist Society Chapter hosted me for a wide-ranging discussion on Data, the First Amendment, Privacy Regulations, and the “Right to be Forgotten.” Joining me as my interlocutor was the ever-entertaining Jason Mazzone. Here is the video, audio, and some photos of the event.








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Feb 21, 2015

Updated Version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action”

I have posted to SSRN the near-final version of “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action.” It will be published in the Georgetown Law Journal Online.

It still has to go through another round of cite-checking, but the body of the article is close to complete. In this version, I added a lengthy discussion of President Bush’s 1990 “Family Fairness” plan. While OLC downplayed the relevance of this program, in its sur-reply, DOJ pivoted much more strongly to discussing it. Here is the new section, which explains why “Family Fairness” does not provide a precedent for DAPA:

            There is a sixth instance of deferred action that OLC puts surprisingly little weight on—the 1990 “Family Fairness” program instituted under President George H.W. Bush.[1] A brief history will explain why. In 1986, President Reagan signed into law the Immigration Reform and Control Act (IRCA).[2] This bipartisan act provided a path to citizenship for up to 3 million immigrants who had been continuously present in the United States since 1982. However, the law did not cover eligible immigrants’ spouses and children who did not themselves meet the residency requirement. This gap created so-called “split-eligibility” families. Generally, once a beneficiary of IRCA received LPR status, he or she could petition for a visa for a spouse or child.[3] Under the IRCA, however, during this potentially lengthy and cumbersome process to obtain a visa—roughly three-and-a-half years after status was approved[4]—these immediate family members without legal status would be subject to deportation.[5]

In 1987, the INS put on hold deportations of children under the age of 18 that were living with a parent covered by IRCA.[6] In effect, this temporary deferral of deportations was meant to give the parent the appropriate time to complete the process, and then allow the parent to petition for a visa for the child. At this point, it made little sense to deport children whose parents would, in due time, receive lawful status, and by extension petition for a visa for their children.[7] Attorney General Edwin Meese’s policy focused on circumstances where there were “compelling or humanitarian factors” that counseled against deportations.[8] On the other side of this deferral, a legal status awaited the child. In this sense, the deferral of deportations served as a bridge. The pot of gold was glistening, awaiting the alien on the other side of the rainbow.

In July of 1989, the Senate passed what would become the Immigration Act of 1990. This bill, among other provisions, provided relief for the children and spouses of IRCA beneficiaries. The Senate bill was not brought up for a vote in the House until October 1990,[9] though, as the New York Times reported at the time, “passage of the new legislation seemed almost certain.”[10] It ultimately passed by a vote of 231-192, with 45 Republicans voting yea and 65 Democrats voting nay.[11] Despite disagreements about the economics of the bill, the Times reported, “few dispute the humanitarian aim of uniting families.”[12]

In the interim, between the Senate vote in July of 1989, and the House vote in October of 1990, spouses and children of IRCA beneficiaries, who would soon be provided with a process to obtain lawful status, were still subject to deportation. In response, in February of 1990, INS Commissioner Gene McNary announced a new policy[13] to expand the deferral of deportations of roughly 100,000—not 1.5 million (as reported in the OLC opinion)[14]—spouses and children of IRCA beneficiaries. This was a temporary stopgap measure to protect those who would soon receive a lawful status after the legislation was enacted.

On November 29, 1990, President George H.W. Bush signed into law the Immigration Act of 1990. On signing the law, the President said it “accomplishes what this Administration sought from the outset of the immigration reform process: a complementary blending of our tradition of family reunification with increased immigration of skilled individuals to meet our economic needs.”[15] With the signing of the law, the Family Fairness policy become immediately moot—exactly what the President had in mind by temporarily putting on hold deportations until Congress could finish passing the bipartisan legislation.

Both Presidents Reagan and Bush used prosecutorial discretion to keep together families. For the 40th President, the deferrals were used to afford time so that parents could petition for a visa for their children. For the 41st President, the deferrals were a temporary stopgap measure in the several months between votes in the Senate and the House. In both cases, it made little sense to rip apart families, when in due course, the spouse and children could receive a visa, ancillary to statutory authorizations. As a 1990 article in the New York Times explained, a legal resident under the 1986 amnesty with lawful status, “would [soon] be able to file a petition for his wife to be granted legal status, a process expected to take about two years.”[16] Protection was extended based on someone who already benefited from Congress’s naturalization laws.

While the American Immigration Council calls President George H.W. Bush’s policy a “striking parallel to today’s immigration challenge,”[17] it teaches just the opposite lesson.  Presidents Reagan and Bush deferred deportations for family members who would shortly be able to receive a lawful status by virtue of the status of their spouse or child. In sharp contrast, DAPA defers deportations for parents of citizen children—who need to wait at least 21 years to petition for a visa—and parents of LPRs, who will never be able to petition for a parental visa.

Perhaps recognizing this difference, the OLC opinion draws a distinction between the five previously discussed programs, and the Family Fairness policy. OLC characterizes the “Family Fairness” policy not as a deferred action program, but a “voluntary departure program.”[18] Specifically under the policy, aliens were “potentially eligible for discretionary extended voluntary departure relief,” not deferred action. Voluntary departure allowed “allowing an otherwise removable alien to depart the United States at his or her own personal expense and return to his or her home country.”[19] In this case, the aliens were not required to actually depart during this interim period. Further, while OLC contended that Family Fairness and DAPA were on a similar scale, the opinion acknowledged that DAPA will “likely differ in size from these prior deferred action programs.”[20] OLC did not consider Family Fairness a precedent with respect to deferred action.

Perhaps unwittingly, the OLC opinion makes clear that the Family Fairness program fits within the “bridge” construct: “INS implemented a ‘Family Fairness’ program that authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986.”[21] Precisely! The temporary relief afforded to the beneficiaries of Family Fairness was connected to the 1986 IRCA.[22] The OLC opinion even makes clear that “Congress later implicitly approved” of the Family Fairness policy.[23] Such acquiescence is lacking for DAPA.

In short, Family Fairness served as a bridge—a very temporary one—until Congress could finish acting. President George H.W. Bush’s short-lived voluntary departure program was connected to the IRCA, and sandwiched between the Senate and House voting on a bipartisan bill.  As Professor Marguiles explains, “All of the relief provided under both Family Fairness and the 1990 Act was ancillary to legal status that would be available within a discrete and reasonably short period to recipients of that relief.”[24]

DAPA, in contrast, is not meant as a temporary stopgap measure while Congress finishes a bill in the works. It imposes a not-too-veiled quasi-permanent status. Though it is not binding on the winner of the 2016 election, as a practical matter, those given deferred prosecution and work permits will be effectively untouchable. The President has admitted as much, explaining that future presidents may “theoretically” remove DAPA beneficiaries, but “it’s not likely.”[25] Call it lawful status by estoppel.

(Citations below the fold).

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Feb 20, 2015

Interview on Mike Gallagher Radio Show about Texas v. United States

Syndicated radio host Mike Gallagher interviewed me about Judge Hanen’s program. Here is a clip.

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Feb 20, 2015

The Choice of a Stay or Appeal in Texas v. United States

I’ve been racking my brain, trying to figure out why DOJ didn’t have an appeal strategy ready to go on day one (here and here). For the last month, it has been clear (to me at least), that Judge Hanen would rule against the government. So why the dithering? Here we are on Friday, and no notice has been filed.

One possible option is that now the Solicitor General is involved in the process. In DOJ, the SG’s signoff is needed for any appeal (with good reason). It’s possible that now the SG is exerting some influence. I previously mentioned that while the DOJ’s initial briefing was pretty poor, the sur-reply got a lot better. I suspect the SG got involved then, and is now trying to correct this mess.

So what is the SG thinking? The choice is between a stay or an expedited appeal. Both have plusses or minuses.

The advantage of a stay is speed. The issue will be resolved quickly by the Circuit Court, and can get to SCOTUS before the end of this term, or perhaps expedited arguments in September (like in Citizens United). The downside of the stay is the burden of proof–the government would need to show some sort of irreparable harm if the stay is not granted. I’m not sure what the irreparable injury is, because with the injunction, the ex ante status quo remains in place. This was one of the stronger aspect of Judge Hanen’s opinion. In his words, you can put the toothpaste back in the tube. It will be easier for the courts to rule against DOJ here, by arguing that there is no urgency, and the normal appeals process can be complied with. So there is a severe downside to seeking a stay.

The advantage of a stay is that the burden of proof is lower, and it is (in theory at least) easier to win. The downside is speed. It may take a few months at the the 5th Circuit, potentially followed by en banc at the 5th Circuit, followed by certiorari. You may not get a decision till June 2016. This runs out the clock on the Obama administration, a point I made in NRO.

Of course, DOJ can do both, seek a stay and file a expedited appeal. But a decision on the former could possibly resolve the latter, if the 5th Circuit panel reaches the merits. So the SG may feel he is on stronger ground with an expedited appeal, rather than dealing with the heightened burden of seeking a stay.

One other option, suggested by several colleagues more politically attuned than me, is that this delay is deliberate for partisan gain. The President would rather drag this out so he can blame it on the Republicans. This could set up future immigration reform in 2016. I don’t know. I can’t imagine DOJ would allow such a reckless strategy, but if the government delays much longer, it may lend this theory some credence.

Update: About 2 minutes after my post, DOJ announced they would seek a stay on Monday. So now, they will have the higher burden of proof, but it will be resolved this year.

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Feb 20, 2015

Another Obamacare Delay: Special Enrollment Period For People Who Weren’t Aware of Obamacare Penalty

In an article explaining that 800,000 people who signed up for insurance on HealthCare.gov (1/5 of the total) received incorrect tax notices, the Times causally mentions that the President caved to pressure and is opening up a “special enrollment period.”

The health care law requires Americans to have insurance, obtain an exemption or pay a tax penalty. Mr. Slavitt said the new special enrollment period was intended for people who had been unaware of the penalty, which the government calls a “shared responsibility payment.”

To qualify for the special enrollment period, consumers must certify that they filed their tax returns and paid the penalty for not having coverage in 2014. They must also certify that they “first became aware of, or understood the implications of, the shared responsibility payment after the end of open enrollment — Feb. 15, 2015 — in connection with preparing their 2014 taxes.”

The special enrollment period serves three purposes to the administration. It will increase the number of people with health insurance, a goal long sought by Mr. Obama. It will reduce the number of people who must pay tax penalties, potentially reducing anger at the White House and opposition to the Affordable Care Act. And it will increase the number of people who receive health insurance subsidies and thus have a personal stake in a Supreme Court case challenging payment of the subsidies in more than 30 states.

Of course, there is no way to prove who only learned about the Obamacare penalty after enrollment closed in February 2015.

It is not clear how the government could verify taxpayers’ claims about when they first realized the implications of the tax penalty. But the pressure to create the new enrollment opportunity was clear. Democrats like Senator Tammy Baldwin of Wisconsin and Representative Lloyd Doggett of Texas, who had urged the move, welcomed the announcement Friday.

This article is very confusing, and doesn’t actually explain how the “special enrollment period works.

The deadline to sign up on HealthCare.gov for coverage in 2015 was February 15, 2015. If you failed to do so, you will need to wait until next year for coverage. By failing to have health insurance during any month in 2015, you will be subject to the individual mandate penalty (or as John Roberts likes to think of it, a tax). If someone signs up for health insurance in March of April, they were still uninsured in January and February, so they would be subject to the penalty. Of course, none of this will matter until 2016, when the returns for 2015 are due. So why the urgency now?

Because as many as 6 million people, who were subject to the individual mandate in 2014 (not covered by exemption), will have to pay the penalty before April 15. The Administration is panicking, and worries about how these people will suffer a huge tax bill. So to preempt this from happening again next year, they’ve re-opened the enrollment period.

Is this even legal? Does HHS have the authority to do this? I haven’t had time to research this question, but I will look into it.

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Feb 20, 2015

Audio: Discussion of Judge Hanen’s Decision in Texas v. U.S. at John Marshall Law School FedSoc with Professor Steven Schwinn

On Thursday, February 19, the John Marshall Law School Federalist Society Chapter hosted me for what was supposed to be a discussion of executive power, but quickly morphed into an analysis of Judge Hanen’s decision in Texas v. United States. My interlocutor was Professor Steven Schwinn, whose work I’ve followed for years on the Constitutional Law Profs Blog. We had a wide-ranging discussion focusing on standing (Article III and prudential), the APA, and the Take Care Clause. This podcast offers a fairly detailed overview of what the decision means, and what happens next. Enjoy!






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Feb 19, 2015

I will be testifying before House Judiciary Committee on Constitutionality of DAPA

The House Judiciary Committee invited me to testify on the constitutionality of DAPA. The hearing will be held on Wednesday, 2/25 at 10:15 in 2141 Rayburn House Office Building. Here is the description and full witness list:

House Judiciary Committee to Hold Hearing on Unconstitutionality of President Obama’s Executive Overreach on Immigration


Washington, D.C. – On Wednesday, February 25, 2015 at 10:00 a.m., the House Judiciary Committee will hold a hearing on the unconstitutionality of President Obama’s executive overreach on immigration. Although President Obama has stated over 20 times that he does not have the constitutional authority to change our immigration laws unilaterally, in November 2014 he proclaimed that he would unilaterally allow four million unlawful immigrants to stay and work in the United States without a vote of Congress. Twenty-six states have filed a lawsuit challenging the constitutionality of President Obama’s unilateral actions and a federal judge has temporarily blockedPresident Obama’s executive action on immigration.


At Wednesday’s hearing, the House Judiciary Committee will hear from the following witnesses on the President’s unilateral, unconstitutional actions:

·         The Honorable Adam Laxalt, Attorney General of Nevada

·         Mr. Josh Blackman, Assistant Professor of Law, South Texas College of Law

·         Ms. Elizabeth Price Foley, Professor, Florida International University College of Law

·         Mr. Steve Legomsky, Professor, Washington University Law School

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Feb 19, 2015

Should DOJ Have Been Surprised By An APA Ruling in Texas v. United States?

Following my post last night about the DOJ’s “struggles” of how to proceed from Judge Hanen’s ruling, I went back through the transcript and looked for references to notice-and-comment. Should DOJ have been on notice this was a possible grounds for resolution? Well, yeah.

On p. 44, Judge Hanen asked the US:
THE COURT: Does it matter in this case — and I didn’t ask Mr. Oldham this, but I will before we’re done today, so — but I’ll start with you because you’re — does it matter, No. 1, we’re not dealing with a regulation that has gone through notice and comment?
The United States (as best as I can tell) did not respond to this point.
On p. 68, during rebuttal Texas addressed it several times:
The entire point is to ensure that when people are aggrieved by the way that the government is making legislative rules, that we have an opportunity to have public comment and that they reach a reasoned, nonarbitrary and non-capricious decision that takes in — that takes into account the views of affected people. So that’s the APA.
And p.80
So what are the reasons? They’re all eligibility criteria. These are not from statute. These are not from the 27 provisions that Congress gave. They’re not from the regulations that have been — that people have opportunities to challenge through notice and comment.
And p. 83
Now, once it’s a substantive rule, then it triggers a whole host of remedies for the plaintiffs under the Administrative Procedure Act. First, the notice and comment requirements are quite easy and straightforward for the Court in the sense that the United States has conceded that they did not issue this directive through notice and comment. The State of Texas, none of the plaintiff states, none of the members of the public has ever had a chance to offer public input into what the defendants have done, much less have they responded in a notice and comment on rule making to the public input that the states would have offered if we had been given the opportunity
The court came back to it, asking the government one more time on p. 100:
THE COURT: — just to eliminate things. I mean, Mr. Oldham argued — and I’m asking you this because I think you will agree with this — is that if the APA applies and if the states have a ripe standing to sue under the APA, I mean, the injunction is good, isn’t it? I mean, y’all haven’t gone through the notes [sic] of the publication and comment procedure that would otherwise if the APA applies.
Only then did the US get around to addressing the question, and Hartnett explains DAPA is exempt. (pp.100-101).
MS. HARTNETT: Right. So that — that’s a separate — that would be regardless of whether it’s like in the enforcement paradigm of Heckler, that would be the type of general policy guidance that would be immune from notice and comment.
But the judge’s followup questions seemed he wasn’t content with that answer.
It was definitely a live issue that the judge asked about. DOJ should have foreseen this as a possible ground for a resolution.
I still can’t figure out why they were caught flatfooted by it! From the outset, I’ve been amazed at how cavalierly DOJ has approached this. With Obamacare, they had a serious plan and defense from the outset. Neal Katyal was brought in at a very early stage (after SG Kagan told him to).
Here, the OLC memo was strikingly vulnerable, and DOJ’s initial brief in the Texas case was very weak. Hartnett’s performance was poor. She wasn’t able to answer many of Hanen’s questions, evaded others, and candidly seemed somewhat unprepared. The sur-reply, after Hartnett argued got a lot better.
I can’t quite figure out why this wasn’t take seriously from the get-go.

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Feb 18, 2015

What is the Administration Thinking about its DAPA Appeal?!

I am really, really confused. For the last month or so, based on my reading of the transcript, I was fairly convinced Judge Hanen would issue a preliminary injunction, putting DAPA on hold. I have to imagine the Justice Department reached a similar conclusion. Even more so, I have to imagine that DOJ recognized that a federal district court could put enjoin DAPA even before a suit was filed, based on procedural or substantive grounds. From my research on Obamacare, teams were assembled before the law was even passed to prepare litigation strategies. So what happened?!

Michael Shear and Adam Liptak have an insightful article in the Times, titled “White House Struggles on Immigration Ruling.” Why on earth are they struggling? How could they not have anticipated this would happen?

President Obama’s lawyers, facing what could be months of delay on the White House’s immigration efforts, are struggling for a response to a Texas judge’s ruling that has imperiled one of the president’s potential legacy achievements.

A top administration official said Wednesday it was unclear whether the Department of Justice would seek an emergency order that would allow the president’s immigration programs to go into effect while an appeal proceeds. A spokeswoman for the Justice Department said that no decision had been made on an emergency application to an appeals court, but she pledged to fight all challenges to the president’s actions.

The administration is dithering between an emergency stay and an appeal on an expedited basis.

It could ask the federal appeals court in New Orleans, the United States Court of Appeals for the Fifth Circuit, for a stay of Judge Hanen’s preliminary injunction. But that could be an uphill fight in a court dominated by Republican appointees.

A stay is ordinarily granted to preserve the status quo. Were the program to move forward, its benefits and protections might be hard to take back. Without his preliminary injunction, Judge Hanen wrote, “There will be no effective way of putting the toothpaste back in the tube.”

Any decision by the appeals court on a stay application would almost certainly be appealed to the Supreme Court.

But the administration may prefer to file an appeal rather than an emergency application, though perhaps on an expedited basis, in an effort to get the merits of the dispute to the Supreme Court as soon as possible.

If the administration files for an expedited appeal, followed by certiorari, it would effectively be impossible to resolve the issue before July. The case will be argued next term, with a decision as late as in June 2016. At that point, the administration is over. Why wouldn’t they go with the emergency stay?

More importantly, why was this decision not made weeks, if not months ago?

Could it be hubris?

“I have always thought that the administration and their supporters were greatly underestimating the likelihood that this would all get struck down in court,” said Michael McConnell, a law professor at Stanford University.

As I noted in National Review, initially supporters of DAPA scoffed at the challenge. Could it possibly be that the adminstration drank its own Kool Aid? Were they so swept up in ridiculing those who argued the policy was unlawful, that they didn’t have an honest assessment of how a court would review it? The poorly-reasoned OLC opinion may be a testament to this fact.

Further, the administration has to know that the time is ticking. As I closed my article in National Review this morning, Judge Hanen’s ruling could allow Texas to run out the clock on the Obama administration:

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

Eric Posner makes a similar point in the Times:

The ruling confronts the administration with a series of uncomfortable choices. Its decision will be affected by the reality that time is not its friend.

The president could concede the judge’s point about administrative procedures by agreeing to publicly advertise his immigration program and accept public comments. But that would take months, and his adversaries could still mount other legal challenges after that comment period ended.

“In practice,” Mr. Posner said, “notice-and-comment rule making can take years.”

I have no clue what they are doing.

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Feb 18, 2015

My New Article in National Review: Challenge to DAPA Now “On The Wall”

National Review published my essay explaining the significance of Judge Hanen’s decision enjoining DAPA. I broke down the opinion in this post, and my NRO essay provides a bigger picture analysis.

First, now that Judge Hanen has issued a serious 123 page decision, supporters of DAPA can no longer scoff and laugh at the arguments.

When Texas filed a constitutional challenge to President Obama’s executive action on immigration, his supporters scoffed and ridiculed the suit as lacking any merit. First, they argued, states are not injured by the federal policy. Second, they contended that Congress had already given the president the discretion to halt the deportation of millions. Finally, they predicted that the courts would stay out of this important policy debate. The Justice Department’s brief rebuked the suit, alleging that the claims “are based on rhetoric, not law.” Judge Andrew S. Hanen in Brownsville, Texas, disagreed. In a massive 123-page opinion issued on Monday, Judge Hanen thoroughly rejected each of these arguments, vindicating Texas — and 25 other states that joined it — in this challenge to the president’s disregard of the law.

Say what you will about Judge Hanen’s previous decisions, but a 100+ page opinion is not a hack job. There is a serious legal issue here that a judge approached in a thoughtful way. I candidly admit that reasonable minds can differ on this difficult topic, but it simply isn’t the case that a partisan judge ruled based on ideology. The depth of the analysis makes this point clear. Compare Hanen’s opinion with Judge Howell’s cursory decision in the Arpaio litigation, where she uncritically accepts all of the government’s arguments in a few meager pages, or the decision from the Western District of Pennsylvania where the court improperly reached the issue. This reminds me of Judge Vinson’s decision in the Obamacare litigation for its depth.

Second, now a federal judge has lent his imprimatur to the challenge. Much like the early days of the Obamacare challenge, a common tact of the left was to delegitimize the arguments of Barnett and others. What made the challenges gain salience, or in the words of Jack Balkin, go from “off the wall to “on the wall” was that it was accepted by a federal court. Namely Judge Vinson’s opinion. Now, Hanen has ruled in a similar fashion.

This case will soon be appealed by the DOJ to the Fifth Circuit Court of Appeals, and ultimately to the United State Supreme Court, but Judge Hanen’s thoughtful opinion has shifted the tenor of the debate. No longer can critics scoff at the argument that DAPA is unlawful. Hanen’s workmanlike decision has moved the arguments from “off the wall” to “on the wall.” The decision from Brownsville, on the literal and figurative border between the federal and state governments, is a first step toward restoring the separation of powers and ensuring that the president faithfully executes the laws.

Third, the court didn’t need to reach the constitutional issue, but as I’ve argued at some length the Heckler v. Cheney analysis closely mirrors a Take Care clause analysis. If a higher court wants to address this issue, Judge Hanen’s decision provides a basis for ruling in this area.

The court did not need to address the constitutional issue, and it did not address whether the president failed to comply with the Constitution’s requirement that he “take care that the laws be faithfully executed.” Judge Hanen, however, showed his hand by explaining that the president had engaged in a “complete abdication” of the law. Rather than enforcing the law, Hanen saw Obama’s actions as making law: The executive is “is not just rewriting the laws; he is creating them from scratch.” This is the role of Congress, not the president.

Fourth, Judge Hanen also gave the Court a narrow way of ruling. By finding that the APA was not complied with, a majority of the Court could simply invalidate the policy and require that it go through the notice-and-comment process. Of course, the Justices know that this will not, and cannot happen in the waning 22 months of the Obama administration. This minimalist approach, allowing the Executive branch to fix a problem, would be keeping with what my friend Richard Re calls the “doctrine of one last chance.” For example, in Shelby County the Court allowed Congress to fix the Voting Rights Act, even though everyone knows that won’t happen.

Even if the administration complies with the notice-and-comment process of the APA — unlikely with only 20 months until the next election — such a broad policy of non-enforcement would still run afoul of the Take Care clause.

If the Court takes this approach, they can run the clock out on the Obama administration.

This case will be appealed quickly, but we should not lose sight of the importance of this decision.

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Feb 17, 2015

Talks at University of Illinois, Loyola Law School, and John Marshall Law School

On Wednesday at noon, I will be speaking at Loyola Law School in Chicago on the constitutionality of the President’s executive actions. On Thursday at noon I will be speaking at the University of Illinois in Urbana-Champaign on Data and the First Amendment.Professor Jason Mazzonne will kindly comment on my talk.  On Thursday at 5:00 I will be speaking at John Marshall Law School on executive power and immigration. Professor Steven Schwinn will provide comments. All events are at Federalist Society chapters, and are open to the public. I will also be at the Federalist Society Student Symposium on Friday and Saturday. See you in the Windy City.




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Feb 17, 2015

I will be on Al Jazeera America Tonight Talking about Immigration

I will be on “Inside Story with Ray Suarez” at 11:30 ET on Al Jazeera America to discuss the ruling from Brownsville. I will be joined by Marielena Hincapie of the National Immigration Law Center.


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Feb 17, 2015

ConLaw Class 10 – Scope of Federal Powers II

The lecture notes are here. The live chat is here.

Scope of Federal Powers II

  • Wickard v. Filburn (607-612).
  • The modern debate (612).
  • Hearts of Atlanta Motel (612-617).
  • United States v. Lopez(617-637).’

Wickard v. Filburn

This is farmer Roscoe Filburn.


This is Secretary of the Agriculture Claude Wickard.


This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.


Hearts of Atlanta Motel v. United States

The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.



moreton rolleston






During the Jim Crow era, “The Negro Motorist Green-Book” provided African Americans with a listing of hotels they could stay while traveling.


These cabins in South Carolina were advertised “For Colored.”


Katzenbach v. McClung

This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.



Many restaurants only served only white patrons, such as this restaurant in Lancaster, Ohio.


And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.


And who says trolling eBay for worthless mementos from Supreme Court cases is useless. Recently, for the princely sum of $3.99 plus shipping, I purchased a matchbook from Ollie’s Barbecue–the Birmingham, Alabama establishment of Katzenbach v. McClung fame that refused to serve black customers, insisting that it did not engage in interstate commerce. Though, as the Court found, it purchase most of its meat from a butcher who had procured it from out of state.

In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant297*297 had moved in interstate commerce.

Now, thanks to the magic of eBay, I submit to the world additional proof that Ollie’s engaged in interstate commerce! Their matchbooks were manufactured by the Universal Match Corporation in Atlanta–across state lines! Read it and weep.


It is impossible to tell exactly when the matchbook was manufactured, but based on the zip code it would have been at least 1963, as that is when zip codes were introduced. The seller on ebay–an expert in matchbooks–told me “I’m guessing late 50’s to early 60’s. The paper from that time was a bit lighter on the back, but not bright white or smooth like later on.” So this is squarely in the time period in which Ollie’s would have run right into Title II of the Civil Rights Act of 1964.

The Address for “Ollie’s World’s Best Barbecue” was 515 8th Ave., So. Birmingham, Alabama 35205. Nothing is there now. They were in that location until 1999.

So here we have it. Further proof that Ollie’s did engage in interstate commerce!

The McClung’s were apparently quite religious, as their matchbook struck a Christian spark. (Oh that pun was awesome).

On the front, the Matchbook says:

“If you never know me, you’ll miss nothing, If you never know Jesus Christ, you’ll miss everything.”

The back of the matchbook quotes from 2 Chronicles 7:14 (King James Version):

 If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.



The Universal Match Corporation, as evidenced by this 1950-era promotional matchbook was located at 317 Buckhead Ave, N.E., Atlanta, Georgia.


United States v. Lopez

This is Thomas Edison High School in San Antonio, Texas, the site where Alfonso Lopez, Jr., brought a gun to school in violation of the Gun-Free School Zones Act of 1990.




I obtained these (blurry) photographs from Lopez’s high school yearbook.





The caption reads “Rushing down the field, Alfonzo Lopez warms up before the game.”

United States v. Morrison

This is Christy Brzonkala, the plaintiff in what would become United States v. Morrison. I could not find a photograph of Antonio J. Morrison and James Crawford.




Gonzales v. Raich

This is Angel Raich, the lead plaintiff in Gonzales v. Raich.


Here is a photograph of Raich using a marijuana vaporizer.


Right to Left: Robert Raich, Angel McClary Raich, (a younger) Randy Barnett, Diane Monson, and David Michael at the Ninth Circuit Court of Appeals in San Francisco, California.


Here is Raich finding out that the Supreme Court ruled against her cause.


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Feb 17, 2015

Can a District Court Issue a Nationwide Injunction?

Since discussions of the authority of district courts are all the rage, I post again what I wrote in December about whether Judge Hanen could issue a nationwide injunction (he did so).

In a previous post, I noted that Texas sought a “nationwide” injunction against the enforcement of DAPA. Joshua Block of the ACLU kindly noted that the government often argues that “comity between circuits prevents nationwide injunctions.” Joshua pointed me to the 2010 government’s emergency motion for stay pending appeal to the 9th Circuit in the Don’t Ask, Don’t tell case (If you can remember that far, that was back when the Obama administration was defending the law). In this case, the district court issued a nationwide injunction, and the government objected. So could the district court in Texas issue a nationwide injunction? This history of the DADT litigation is very instructive to understand what may come next.

The District Court’s found that DADT was unconstitutional, and issued a nationwide injunction against all DOD officials:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

In its orders (p. 121 of PDF) the district court acknowledged that its order prevents the government from defending the constitutionality of DADT in other district courts.

To the extent that Defendants’ reference to “other courts” is intended to refer to other district courts, Defendants are correct that this injunction will prevent them from defending the constitutionality of the Don’t Ask, Don’t Tell Act. As discussed above, the proper remedy for the relief sought here is complete invalidation of the Don’t Ask, Don’t Tell Act. As such, Defendants are bound by this Court’s ruling. Further, if Defendants’ objection is that they will be unable to defend current or future as- applied challenges, Defendants once again fail to recognize the nature of Plaintiff’s challenge. Plaintiff did not prevail on an as-applied challenge, which would have rendered the Act unconstitutional as applied to it but not affected the constitutionality of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its face and requested an order permanently enjoining the Act’s enforcement. As the Court deems this remedy proper, Defendants are unable to defend the Act in as- applied challenges. Likewise, if Defendants’ objection is that they will be unable to defend current or future facial challenges to the Act, the same reasoning applies. To the extent that Defendants’ reference to “other courts” indicates higher courts, Defendants’ recourse, if they wish to defend the Act further, is to appeal this Court’s ruling.

Second, the district court observed that there was no precedent justifying the government’s arguments that a single district court cannot issue a nationwide injunction:

Defendants next argue that the Court should not issue a nationwide injunction because other circuit courts have found the Act constitutional. Defendants cite no case in which a court finding a federal statute unconstitutional on its face has limited its ruling to a particular judicial district.

Third, the district court turns to the government’s interest in preserving “comity” among the courts of appeals:

The Court next turns to Defendants’ argument that comity prevents the Court from issuing a nationwide injunction. As noted above, of the four circuit cases holding the Don’t Ask, Don’t Tell Act constitutional, Cook is the only case decided after Lawrence and accordingly the only one relevant here. … The doctrine of comity is not a rule of law, but rather is grounded in equitable considerations of respect, goodwill,  cooperation, and harmony among courts ….

In AMC Entertainment, the United States brought suit against a national movie theater owner alleging that some of its theaters violated Americans with Disabilities Act (“ADA”) regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter “AMC Entm’t (C.D. Cal.)”). The district court granted the government’s motion for summary judgment and issued a nationwide injunction requiring the defendants to comply with the ADA regulations, and the defendants appealed. Id.

The Ninth Circuit began its analysis by recognizing that district courts have the power to issue nationwide injunctions. AMC Entm’t (9th Cir.), 549 F.3d at 770-71 (“Once a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction.” (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction“); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981) (“When a district court has jurisdiction over all parties involved, it may enjoin the commission of acts outside of its district.”))).

Nevertheless, the divided Ninth Circuit panel went on to hold that the district court abused its discretion by issuing a nationwide injunction because “the principles of comity” should have constrained the court from enjoining defendants’ theaters in the Fifth Circuit, which previously had held defendants’ theaters did not violate the ADA. AMC Entm’t (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit “judicially repudiated” the reasoning adopted by the district court “when considering the same arguments” enforced in the district court’s injunction). The panel held:

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773.

AMC Entertainment is distinguishable from the present case because the former turns on statutory construction, not on fundamental constitutional rights. As Plaintiff argues, “Whatever may be the merits [of comity] in the context of statutory construction — where, for example, our legal system tolerates differing rules in different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the like — it can hold no sway on issues of constitutional rights.” (Resp. at 7.) The Court agrees that the fundamental constitutional rights at issue here must trump considerations of comity. To hold otherwise would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is rooted in equity; here, the balance of equities decisively tips in favor of upholding the fundamental constitutional rights protected by the First and Fifth Amendments to the United States Constitution.

The government filed an emergency motion for a stay to the 9th Circuit, arguing that it would be disruptive to stay the policy, and opposed the nationwide nature of the injunction (and really worldwide, as DOD personnel are stationed around the globe):

Finally, even though this case is not a class action, the district court erred in awarding what is in essence classwide relief – enjoining application of the statute to any member of the military anywhere in the world – in this case brought by a single organizational plaintiff purporting to advance the interests of two individuals. Injunctive relief is an extraordinary remedy and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court . . . may not attempt to determine the rights of parties not before the court.”); Nat’l Ctr. for Immigration Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984). The Supreme Court acted in accordance with this principle by staying an indistinguishable militarywide injunction entered by a district court in a facial constitutional challenge to the prior, more restrictive military regulations regarding gays and lesbians. See Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than [the named plaintiff]”). This Court subsequently reversed the district court’s decision to enter a militarywide injunction because the plaintiff was challenging his own specific discharge, see Meinhold v. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), and there is no reason for a different result here.

The DADT precedent does not seem directly on point in the immigration context. The district court in Texas would not be “awarding what is in essence class-wide relief” in a “case brought by a single organizational plaintiff purporting to advance the interests of two individuals.” Rather, it would be stopping the implementation of a policy that violates the separation of powers, and will impact the 17 states in the suit, and like all 50.

The brief also addresses the comity issue:

The district court’s worldwide injunction also inappropriately interferes with the development of the law in other circuits. The Supreme Court has made clear that “the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the Government litigates.” United States v. Mendoza, 464 U.S. 154, 159 (1984). This Court has held, moreover, that “[p]rinciples of comity” prevent a district court from issuing an injunction that “would cause substantial conflict with the established judicial pronouncements” of a sister circuit. United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).3 If the district court’s injunction is not stayed, it effectively would overrule the decisions of other circuits that have upheld § 654, and preclude consideration of similar issues by other courts. See Va. Society for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 394 (4th Cir. 2001) (relying on Mendoza to limit an injunction in a facial constitutional challenge to a Federal Election Commission regulation).

As a counter to this argument, 17 states united in one single suit. To my knowledge, there are no plans for any other states to bring this type of suit. There will not be any other circuit cases on this. Comity seems like a nonstarter. (Sherriff Joe Arpaio brought a suit in D.D.C. against DAPA, but he does not possess the “special solicitude” of the states). In fact, all of the states bringing a suit in a single district creates the best-case scenario for promoting comity. There will be no circuit splits.

Further one obvious difference–in DADT the ex ante status quo is being disrupted by an injunction; with immigration the ex ante status quo is being maintained with an injunction. Once the policy goes into effect, it will be impossible to roll it back (as the President helpfully reminded us). There can be no claim of disruption–short of messing up planning of DAPA–if it is enjoined before anyone signs up. Now, to the extent that people are approved for it, and receive working papers, the equities shift.

Finally, the government argued that the relief would only be limited to the plaintiffs in this case.

The district court recognized that its injunction would prevent the government “from defending the constitutionality of the” statute, Inj. Order 9 (Attachment D), but contended that these principles were inapplicable because Log Cabin challenged the statute on its face rather than as applied, id. at 4, 9. The district court cited no authority for the proposition that the plaintiff’s legal theory changes the permissible scope of the relief and that proposition is not correct. See, e.g., Va. Society, 263 F.3d at 394 (narrowing nationwide injunction to the plaintiff in facial constitutional challenge); Zepeda, 753 F.2d at 727 (same); Nat’l Ctr. for Immigration Rights, 743 F.2d at 1371-72 (same). A criminal defendant, for example, who successfully claims that the statute he is being prosecuted under is facially unconstitutional gets his conviction reversed – not an order preventing the government from prosecuting anyone under the statute. Contrary to the district court’s apparent view, Inj. Order at 4-5, this is not a case in which granting relief to nonparties is necessary to afford the plaintiff complete relief. See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (upholding an injunction extending relief to nonparties because the injunction could not be tailored to apply only to the parties). Here – assuming (contrary to our submission) that some form of injunction was permissible – the injunction should have been limited to any individuals that Log Cabin properly represented.

The 9th Circuit granted a stay (O’Scannlain, Trott, W. Fletcher). Here is a summary of the government’s argument:

On October 12, 2010, the district court entered a permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act,” codified at 10 U.S.C. § 654. Although the government, including the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, tells us that “[t]he Administration does not support § 654 as a matter of policy and strongly believes Congress should repeal it,” the government nevertheless asks us to “stay enforcement of the district court’s order pending resolution on the merits by our Court of the constitutional issues involved.” The government argues that the district court’s plenary order–mandating that its injunction be given immediate worldwide effect–will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The government asserts that successfully achieving this goal will require as a preliminary matter the preparation of orderly policies and regulations to make the transition. We are advised by the government that, in legal terms, a precipitous implementation of the district court’s ruling will result in “immediate harm” and “irreparable injury” to the military. To make this point, the government avers that a successful and orderly change in policy of this sort will not only require new policies, but proper training and the guidance of those affected by the change. The government persuasively adds that “[t]he district court’s injunction does not permit sufficient time for such appropriate training to occur, especially for commanders and servicemen serving in active combat.” We also note that the government takes issue with the district court’s constitutional conclusions.

The court stressed that granting a stay is warranted because “Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.” That presumption is inapplicable here as there was no act of Congress. What is being challenged is an executive policy.

Further, the 9th Circuit stressed that there was a Circuit Split with the 1st, 2nd, 4th, and 8th Circuits, which had upheld DADT. This counseled in favor of granting a stay.

As we said in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773. The Appellees’ answer to our sister circuits’ decisions is that they are now “irrelevant,” but only a final merits decision by an appellate court can render this judgment.

Again, this argument is inapplicable, as there is, and will be no circuit split on the issue of DAPA.

Finally, the fact that the disruption will cause “immediate harm and precipitous injury” is convincing.

Accordingly, we conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military–if that is what is to happen–strongly militates in favor of a stay. Golden Gate Restaurant Ass’n, 512 F.3d 1115. Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot.

For immigration, the equities cut the exact opposite direction. Implementing this policy will cause the “immediate harm and precipitous injury” to the states. Maintaining the ex ante status quo will not.

So in conclusion, this argument does not work to oppose a nationwide stay in the immigration context.

The government made at a similar argument in Halbig, arguing that the relief would only apply to the named plaintiffs, if the rule is invalidated.

We respectfully submit a supplemental authority that bears on plaintiffs’ assertion, made for the first time in reply, that “[i]t does not matter that this ‘is not a class action’” and that the Court could extinguish the tax-credit claims of individuals who live in “states like Texas.” Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, “before an absent class member’s right of action [is] extinguishable due process require[s] that the member ‘receive notice plus an opportunity to be heard and participate in the litigation’” and “‘an opportunity to remove himself from the class.’” Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a “constitutional requirement” that a “‘named plaintiff at all times adequately represent the interests of the absent class members.’” Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Counsel for Halbig shot back with a motion to strike, rejecting this surreal approach to standing, raised only for the first one weeks before oral arguments! A ruling that a regulation is invalid must apply “nationwide” for “plaintiffs and non-parties alike.”

This Court plainly can and should invalidate regulations that affect non- parties, without implicating Due Process concerns. The APA directs this Court to “set aside” unlawful agency action. 5 U.S.C. § 706(2)(A). See also Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring). And this Court has made clear that when it invalidates a regulation under the APA, such a ruling has “nationwide” effect, for “plaintiffs and non-parties alike.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408-10 (D.C. Cir. 1998); see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).

Further, Halbig was very, very skeptical that the government only just now discovered this “stale” precedent from 1999. They argue, outright, that the government is prepared to ignore the ruling, if the court were to find that the IRS rule is invalid.

Since it is inconceivable that the Government submitted this stale, irrelevant “supplemental” authority to shore up its argument about the justiciability of the employer plaintiffs’ claims (particularly given plaintiff Klemencic’s clear standing), the Government appears to be laying the groundwork to openly flout any decision by this Court invalidating the IRS Rule. Its view, apparently, is that even if this Court vacates the IRS Rule as contrary to the ACA, the Government may nonetheless freely continue to subsidize coverage for the “millions of people across the country” not parties to this litigation. (Notice at 1.) Indeed, because the Government contends that the Due Process Clause would be violated if non-parties were deprived of subsidies, it may believe that it is constitutionally required to continue to offer subsidies in the face of this Court’s invalidation of the IRS Rule.

Consequently, it is incumbent on the Government to now inform the Court and Appellants whether it will abide by this Court’s decision or, for the first time in history, continue to pursue an agency policy after this Court has ruled that the policy is unlawful and set it aside as ultra vires. Indeed, unless the Government affirmatively disavows its apparent intention to lawlessly flout this Court’s binding order invalidating the IRS Rule, the ordinary remedy of vacatur will not suffice, and injunctive relief will be required to enjoin the IRS from making available the subsidies ruled unlawful.

You get it? Even if the court finds that the government acted illegally, they will continue to act illegally.  And the government seems to imply (but doesn’t say outright) that it would violate due process (!?) to suspend the subsidies to those receiving it!

Contrary to the Government’s last-minute contention, this standard APA practice obviously does not violate the Due Process Clause. If this Court vacates the IRS Rule as contrary to the ACA’s text, that eliminates the only legal basis for the IRS to distribute U.S. Treasury funds to subsidize those who purchase coverage on federally established Exchanges. Thus, vacating the IRS Rule precludes the Government from committing the ultra vires act of distributing Treasury funds that have not been authorized by Congress. So precluding lawless subsidies to those purchasing coverage on federal Exchanges obviously means those people cannot receive those subsidies, but it does not in any way bind them or deny them Due Process rights. Were it otherwise, the APA’s requirement to set aside regulations would be unconstitutional every time the rule affects non-parties (which is almost always true).

First, if the Government inexplicably believes that it has the authority (or, more absurdly, a constitutional duty) to continue to disburse subsidies for federal Exchanges in the face of this Court’s order vacating the IRS Rule, this means that invalidating the IRS Rule will not disable the Government from making subsidies available to anybody, including even Klemencic. Thus, mere vacatur of the IRS Rule would not remedy Klemencic’s injury, because so long as a subsidy is “allowable” to Klemencic, he is not exempt from the individual mandate penalty. 26 U.S.C. § 5000A(e)(1)(B)(ii). (See App. Br. 9-11.) An injunction clearly forbidding the Government from subsidizing coverage on HHS-established Exchanges would therefore be necessary to remedy Klemencic’s injury.

The due process clause immunizes the government acting illegally? I don’t understand. I see this as a basis that there is a constitutional right to Obamacare, and any ruling that would wtihdraw benefits would violate Due Process. Is this some sort of Golderg v. Kelley-esque argument? They may want to check Matthews v. Edridge.

This vaguely reminds me of the episode where Judge Vinson in Florida found that the individual mandate was unconstitutional, and could not be severed from the rest of the Affordable Care Act. The opinion was clear as day. Yet, the government filed this bizarre motion for clarification, asking if he “really” meant it. When I spoke to government lawyers while researching the book, they told me that the government actually could not stop the implementation of the ACA. They couldn’t stop it! (They must have been working on the web site or something). Judge Vinson was convinced the government was prepared to ignore the order–and he was right. They asked for an extension because it wasn’t practical to stop it. The bureaucratic Leviathan of giving away unconstitutional benefits trumps the separation of powers.

Here is the section from Unprecedented for your reading pleasure:

Two weeks after Judge Vinson’s opinion striking down the entire ACA, the United States remained confused.

On February 17, 2011, the government filed what is known as a “motion for clarification,” asking the court to explain whether the United States could continue to take steps to implement Obamacare while the case was appealed, even though Vinson had struck down the entire law.

Some in the Florida Attorney General’s office speculated that this may have been a strategic tactic to delay the litigation. One attorney in that office said that the government’s motion to clarify could be interpreted as “stalling, and dragging their feet.” Another involved in the case concurred, describing the motion as an “exercise in futility” and insisting that the government was trying to “delay things.”

The government wasn’t stalling. A former DOJ attorney explained that Vinson’s order “was framed with such breadth that it would be incredibly disruptive with regard to the portions of the Act that were already in force.” The government would not even have been able to comply with the order. The lawyer speculated that Vinson “did not appreciate the full consequences of his order,” and the motion to clar- ify “was able to call the disruption to the court’s attention.” In any event, Judge Vinson was none too pleased with this request and saw it as a pointless delay.

Vinson ruled that, since his opinion, the government has “contin- ued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and un- ambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.”

Seemingly insulted, Vinson had not expected that the government “would effectively ignore the order.” He implied that the motion for clarification was a stalling method. “The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their no- tice of appeal [to the Court of Appeals].”

We should expect the DOJ to oppose the district court’s ability to issue a nationwide injunction. But anything less than a nationwide injunction would be meaningless. All of the named defendants work in the District of Columbia, far outside the jurisdiction of Brownsville, Texas.

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