Oct 26, 2014

White House Pressuring NY and NJ to Reverse Ebola Quarantine Orders. Are they constitutionally obligated to comply?

Yesterday I explained how New York and New Jersey are somewhat constitutionally restrained from enacting Ebola quarantines that are at odds with the President’s policy. Under the Obama Administration’s view of the Supremacy Clause in Arizona v. United States, the states cannot take actions that frustrate federal policy. Even if the state thinks they are helping (and objectively they are), the United States may find the assistance counter-productive, and thus the actions are pre-empted under the Supremacy Clause.

Today, the Times reports that the White House is pressuring New York and New Jersey to reverse their mandatory policy of quarantining Ebola patients.

The Obama administration has been pushing the governors of New York and New Jersey to reverse their decision ordering all medical workers returning from West Africa who had contact with Ebola patients to be quarantined, an administration official said.

But on Sunday both governors, Andrew M. Cuomo of New York and Chris Christie of New Jersey, stood by their decision, saying that the federal guidelines did not go far enough.

This is a repeat of Arizona SB 1070. Arizona said the federal government was not going far enough in its protection of the borders, so they decided to enact additional laws that required people show ID to ensure their legal status. (I’ll put asides any 4th Amendment or Equal Protection issues, as this was a pre-enforcement facial challenge, not as applied). The Obama Administration took Arizona to Court. Will the same fate lie for New York and New Jersey. Probably not. But, there will be “pressure” to “rescind the order.”

Ever since Mr. Cuomo, a Democrat, and Mr. Christie, a Republican, announced the plan at a hastily called news conference on Friday evening, top administration officials have been speaking with Mr. Cuomo daily and have also been in touch with Mr. Christie, trying to get them to rescind the order.

Samantha Power, UN Ambassador, calls these policies “haphazard” and counterproductive.

Power, who is traveling in West Africa, told NBC News that quarantine plans in New York, New Jersey and Illinois are “haphazard and not well thought out,” and could discourage health workers from going to West Africa in the first place.

“We cannot take measures here that are going to impact our ability to flood the zone,” Power said. “We have to find the right balance between addressing the legitimate fears that people have and encouraging and incentivizing these heroes.”

Officials in New Jersey, New York and Illinois, who acted in the wake of a new Ebola case in New York, said they cannot rely on people to quarantine themselves.

“I don’t think when you’re dealing with something as serious as this you can count on a voluntary system,” said New Jersey Gov. Chris Christie, a Republican, speaking onFox News Sunday. “This is the government’s job.”

He added: “I think this is a policy that will become a national policy sooner or later.”

Of course it is the “government’s job.” But which government? The state, or the federal government? Darrell Issa explains that the states will act where the United States will not:

Republican members of Congress have also called on the Obama administration to enact more travel restrictions into and out of West Africa.

Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee, told CNN’s State of the Union that state officials are taking action in the absence of federal leadership.

“Governors of both parties are reacting because there isn’t a trust in the leadership of this administration,” Issa said.

But wasn’t that exactly the issue in Arizona v. US? The states cannot fill this gap.

And now, other states are imposing similar quarantines:

But in that time, two more states – Illinois and Florida – announced that they were instituting similar policies.

Federal officials made it clear that they do not agree with the governors about the need or effectiveness of a total quarantine for health care workers, though they were careful not to directly criticize the governors themselves.

A senior administration official, who did not want to be identified in order to discuss private conversations with state officials on the issue, called the decision by the governors “uncoordinated, very hurried, an immediate reaction to the New York City case that doesn’t comport with science.”

This sounds likes a perfect case for a single federal policy, yet the states are not satisfied with the Obama Administration’s approach.

Add to this mess the inevitable due process violations of the people being detained. One woman, who was exposed to ebola but has exhibited no symptoms, is being kept in a tent in New Jersey in “inhumane” conditions.

At the same time, the first person to be forced into isolation under the new protocols, Kaci Hickox, a nurse returning from Sierra Leone, planned to mount a legal challenge to the quarantine order. Despite having no symptoms, she has been kept under quarantine at a hospital in New Jersey. On Sunday, she spoke to CNN about the way she has been treated, describing it as “inhumane.” …

She also blasted Mr. Christie for saying that she was sick, when it was clear that she was not running a fever and had tested negative for Ebola.

“The first thing I would say to Governor Christie is that I wish he would be more careful about his statements about my medical condition,” she said. “If he knew anything about Ebola he would know that asymptomatic people are not infectious.”

She spoke from the inside of a medical tent where she has been quarantined since Friday night. The tent has a portable toilet, but no shower. There is no television and weak cellphone reception.

“I also want to be treated with compassion and humanity, and I don’t feel I’ve been treated that way in the past three days,” she said in the interview. “I think this is an extreme that is really unacceptable. I feel like my basic human rights have been violated.”

Will litigation follow? Can you imagine a federal lawsuit where DOJ seeks an injunctions restraining Chris Christie from quarantining Hickox?

 The ACLU is already warning about “constitutional concerns” about the “police power.”

Civil liberties activists raised concerns about the constitutionality of the new rules, warning they could discourage health workers from volunteering to fight Ebola in Africa.

“We understand the importance of protecting the public from an Ebola outbreak,” the American Civil Liberties Union said in a statement reported by the New York Times, adding that the mandatory orders for isolation “raise serious constitutional concerns about the state abusing its police powers by detaining people who are exhibiting no Ebola symptoms”.

I’ll link to a post I wrote two months ago, titled “Liberty in the Time of Ebola.” The time to consider these issues is before, not during pandemics when liberties tend to go out the window. Now, it is already too late.

Update: Late Sunday, the Hill Reports that the administration is working on policies to deal with workers returning from Western Africa. Can you say, pre-emption?

A senior administration official said late Sunday that work is underway on new guidelines for healthcare workers returning from Ebola-ravaged areas.

The official said the administration is working to develop guidelines that will protect Americans and enable workers to tackle the epidemic in West Africa.

“We have been taking a close look at policies for returning healthcare workers, recognizing that these medical professionals’ selfless efforts to fight this disease on the frontlines will be critical to bringing this epidemic under control, the only way to eliminate the risk of additional cases here at home,” the official said.

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Oct 25, 2014

Sotomayor: Most Satisfying Professional Moment “Convinc[ing] a Colleague” To Change Mind. Was it Fisher?

In remarks at the University of New Hampshire, Justice Sotomayor explained that her “most satisfying professional moment” has been “convinc[ing] a colleague” to change his or her mind:

Questions included what was the first thing she did after being confirmed on the high court (she went to a friend’s “and I collapsed for a month”) and what her most satisfying professional moment has been.

She answered the latter by saying she couldn’t give the full details of her most satisfying professional moments “but they’re usually when you can convince a colleague to change” their mind on an issue that you feel strongly about.

“The reality is, it doesn’t happen that often,” Sotomayor said. That’s because before the justices actually vote, they’ve all read the briefs and studied the issues and “we’re pretty well-prepared.”

“By the time we got to oral arguments, if you haven’t convinced us in you’re brief, you’ve made a big mistake,” she said.

This is an interesting revelation, as Joan Biskupic’s recent book highlighted the fact that it is not Sotomayor’s preference to try to persuade other Justices. Her colleagues described her as “solo operator.” This is in stark contrast to the “shrewd tactician” Elena Kagan.

Yet, we see that Sotomayor was able to convince her colleagues not to invalidate the UT affirmative action program, and pushed the majority in Fisher to duck the issue with her dissent. I wonder if this is the case she talks about as the “most satisfying professional moment” of her career.

As an aside, I’m still not sure how her Fisher ploy worked, as Sotomayor ultimately published her dissent in Schuette, and the other Justices took public umbrage to it–Chief Justice Roberts in particular who was offended to being called out of touch. After some more thought, I suspect this may be akin to the Court’s decision to order reargument in Citizens United in the face of a dissent from Justice Souter that the Court invalidated the law, even though the argument was not briefed. In Fisher, Bert Rein specifically did not ask the Court to overturn Grutter, so it may have been a bridge too far. This is keeping with what Richard Re has called the Doctrine of One Last Chance. I think the parts of Sotomayor’s dissent that persuaded the Justices never made it into Schuette. I can’t imagine any Justices were persuaded to change their minds by being called out-of-touch.

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Oct 25, 2014

New Yorkers Are Not “Getting Over,” and Not Complying With New Gun Control Law

The Times has a detailed featured about the aftermath of New York’s SAFE Act, a wide-ranging gun control enacted in the hasty aftermath of the mass killing in Newtown. A few lessons can be gleaned.

First, people do not like having their gun rights restricted–and they do not get over these kinds of things.

But in pushing for passage of strict new gun laws, Mr. Cuomo alienated a vocal constituency across upstate New York, a region he has otherwise wooed. In court, gun owners have challenged the constitutionality of the laws; on lawn signs and bumper stickers in places like the Catskills and western New York, they demand their repeal.

Counties, towns and villages have passed resolutions denouncing the laws, and some counties have even demanded that their official seals not be used on any paperwork relating to them. In response to an open records request, the governor’s office shared hundreds of pages of such resolutions, from far-flung places like the Adirondack town of North Hudson, with 238 residents, as well as from more populous ones like Erie County.

“The calculation when it was passed was people were going to get mad for a little while and then get over it,” Stephen J. Aldstadt, the president of the Shooters Committee on Political Education, said. “I don’t think people are getting over it.”

Second, the hastily-put-together law has proved difficult to implement.

Despite its scope, the Safe Act was not everything it was originally intended to be, and there were stumbles. A provision limiting the size of gun magazines, for example, turned out to be unworkable….

Requiring background checks for ammunition sales, another aspect of the laws, has not been put into effect, because the state has not yet established a system for conducting the checks. And there are lingering questions among officials as varied as sheriffs and county clerks about what the laws require of them.

Third, making people register their guns proves to be extremely difficult, if not impossible.

One of the most controversial elements of the Safe Act was its requirement that the owners of firearms defined under the laws as assault weapons register them with the State Police.

Many gun owners said they would refuse to comply; the deadline passed on April 15. The State Police have refused to say how many gun owners have registered; a spokeswoman, Darcy Wells, asserted that such information was exempt from disclosure under New York’s Freedom of Information Law….

Some data released by the state shows that one major fear among gun owners has not come to fruition: Law enforcement officials have not gone out of their way to enforce provisions of the Safe Act against otherwise law-abiding state residents.

You don’t say!

Through late September, when data was most recently available, the state’s Division of Criminal Justice Services said that no arrests had been reported to the agency for the misdemeanor of failing to register an assault weapon — the requirement that many gun owners have openly defied.

I previously noted that as many as one million New Yorkers will not register their guns. Connecticut hasn’t even bothered to enforce their own law. About 300,000 have refused. So now what? Do the police go door to door searching for weapons?

For now, gun rights experts say, the outcome in New York is uncertain. Will the state take the initiative to seize unregistered weapons? If it doesn’t, will the new gun controls be exposed as toothless, even meaningless?

“The line in the sand has been drawn, and if Gov. Andrew Cuomo wants to send state police out on house-to-house searches and put hundreds of thousands of people in prison, they can do that,” says Dave Kopel, research director at the Independence Institute, a free-market think tank in Denver.

This experience should provide a lesson to efforts to force wide-spread registration.

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Oct 25, 2014

Does New York’s Ebola Quarantine Policy Unconstitutionally Frustrate Federal Law?

In Arizona v. United States, the Court found that state efforts to enforce immigration laws frustrated the federal immigration policy (which included a lot of non-enforcement), and was thus unconstitutional. I think SB 1070 in Arizona was best understood as either a 4th Amendment or Equal Protection violation depending on how it was enforced, but DOJ brought a pre-enforcement challenge on supremacy clause grounds. (As chance would have it, I write this post in Phoenix Skyharbor Airport waiting for my eventual chariot home to Houston).

Since then, I’ve been keeping a close eye on how other states enact policies that come into conflict with federal law–and the lack of any reaction from DOJ. Recently, New York City proposed a law that would give its police authority the power to ignore a federal warrant signed by a federal judge, if the City determines the individual is not dangerous. This is a clear frustration of federal immigration law, but I haven’t heard a peep from DOJ about a possible pre-enforcement challenge.

Another example popped up yesterday. A Doctor who knows no borders, who treated Ebola patients in Africa, has now brought the disease back to the Big Apple. And, it turns out, he travelled on several subway lines, went bowling in Williamsburg, and did all the things a New Yorker would do. In response, Governor Cuomo of New York and Governor Christie of New Jersey  “announced Friday that medical personnel returning to New York after treating Ebola patients in West Africa would be automatically subject to a 21-day quarantine.” This quarantine will be enforced by the states, and not the federal government.

The United States, as a matter of policy, has chosen not to implement mandatory quarantines for people returning from this region who treated Ebola patients. Why? We can’t be certain, but as the Times reports, “restrictions like those adopted by New York and New Jersey could cripple volunteers’ efforts at the front lines of the epidemic.” While it is often impossible to determine what exactly are the interests of the United States, here it seems that the federal government, pursuant to its plenary powers over foreign relations, has decided that our policy should not discourage people from helping others. Imposing travel bans and quarantines may harm the aid effort. (This calculus may seem entirely backwards to me, but whatever).

Is New York and New Jersey’s policy legal? The Times observes that “although the federal Centers for Disease Control and Prevention sets the baseline for recommended standards on Ebola, state and local officials have the prerogative to tighten the regimen as they see fit.”

This statement is at odds with DOJ’s position in Arizona v. United States. The federal government set the “baseline” standard for immigration authority, and Arizona was absolutely trying to “tighten” the immigration enforcement regime. DOJ took the position that any effort to help enforce (help?) the law actually frustrated the federal government’s priorities. Now, one difference is that states, under the police power, have plenary powers over the health, safety, and welfare of their people. States do not have the same authority under the immigration power. But the dynamic is exactly the same. If we take the supremacy clause as seriously as the DOJ does, even a state’s police power–the most important element of state autonomy– gives way to federal power.

Is it the case that the Executive’s policy with respect to foreign nations–and desire to encourage doctors to travel to Africa–trumps a state’s ability to stop a potential epidemic from spreading? Think carefully before you answer that question yes. If so, the DOJ bold position in Arizona v. US becomes a bit more precarious.

Now, I don’t expect the Obama Administration to file a pre-enforcement challenge to this quarantine.

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Oct 24, 2014

The Economics Of Holding Connecting Flights After Delays

Today, on my way back from a talk in Sacramento, I had to schedule my flight back through Phoenix because there were no direct flights. My flight was scheduled to leave Sacramento at 4:15, with an estimated arrival time of 6:02. My connecting flight was to leave Phoenix for Houston at 6:50. That gave me a solid 45 minutes to make the connection. Not the best route, but it was my only way of getting home Friday. I’ve made tighter connections.

We pulled from the gate at 4:20. After 10 minutes of not moving, I realized something was up. Ten minutes later, the Captain made an announcement how there was some sort of navigation computer problem and they had to shut down the plane and turn it back on. (I’ve found the reboot method to be a common approach to troubleshooting both planes and PCs running Windows 95). Thirty minutes later, the Captain announced that the reboot worked, and it would take a few minutes to cycle through all the systems. Then we taxied, and because we missed our initial slot, we didn’t take off till 5:00. The flight to Phoenix was about 1:40. My estimated time of arrival was 6:40, giving me 10 minutes to make the flight. The inflight WiFi reminded me of that fact as the circled the airport twice for reasons that infuriate me.

We landed, and I ran as fast as I could. I made it to the gate about 1 minute too late. Yes, the door closed about 60 seconds after I got there. I knew once the door was closed, that was it (this has happened to me before). The gate agent said they couldn’t wait any longer. As a result of not waiting another 120 seconds, U.S. Airways had to pay for a hotel for me (Embassy Suites), and rebook me on the next flight. I’m sure others on my flight got the same deal.

Now, I have a question that I don’t know the answer to. What are the economics for holding connecting flights after a delay. U.S. Airways knew my flight was delayed. There were many other people on their way to Houston who were on the same flight. We were all going to be there within 5 minutes of the scheduled departure time. Why wouldn’t they just wait a few more minutes? This flight was not scheduled to land in Houston until after 11:00 p.m., and there were no other flights outbound that night. Even after they closed the door, the plane remained at the gate for another 15 minutes (taunting me).

If they know an inbound flight was delayed, why can’t they wait a few minutes at the gate?

In any event, due to this delay, this week I will have woken up in 4 different time zones. Eventually I’ll get home.

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Oct 24, 2014

Is Gridlock Worse Today Than It Was In The 1990s?

Is it the case that gridlock is worse today than during the Clinton years? The Times has a feature that shows how partisanship has increased over the last 20 years.

Congressional Republicans, of course, have also refused to reach across the aisle and work with Mr. Obama the way they did in Mr. Lott’s era. The current Congress is on track to become one of the least legislatively productive in recent history. That is partly because Mr. Obama faces a far more polarized electorate than Mr. Clinton did.

Over the past 20 years, the number of Americans who hold extreme conservative or liberal views has doubled from 10 percent in 1994 to 21 percent in 2014, according to the Pew Research Center. And the middle ground has shrunk, with 39 percent of Americans taking a roughly equal number of liberal and conservative positions, compared with 49 percent in 1994.

The tails are getting fatter, and the middle is getting smaller. There is less room of compromise.

Another factoid to add to this increasing political polarization are numbers concerning “partyism.” As Cass Sunstein explained, today more people would be adverse to their child dating someone of a different political party than of a different.

Researchers have long asked such questions about race, and have found that along important dimensions, racial prejudice is decreasing. At the same time, party prejudice in the U.S. has jumped, infecting not only politics but also decisions about dating, marriage and hiring. By some measures, “partyism” now exceeds racial prejudice — which helps explain the intensity of some midterm election campaigns.

In 1960, 5 percent of Republicans and 4 percent of Democrats said that they would feel “displeased” if their son or daughter married outside their political party. By 2010, those numbers had reached 49 percent and 33 percent. Republicans have been found to like Democrats less than they like people on welfare or gays and lesbians. Democrats dislike Republicans more than they dislike big business.

While I applaud how far we have come on racism, I lament partyism. We live in an increasingly polarized world, and Congress is a manifestation of that.

When partisanship increases, it is no surprise that the members sent to Congress are more polarized, and there is less middle ground for compromise. This is one aspect of gridlock that people are often unfamiliar with–gridlock reflects the populace. If the people don’t agree on how to tackle big problems, then it is totally unsurprising when Congress also cannot agree.


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Oct 24, 2014

FantasySCOTUS and {Marshall}+ Featured in the Washington Post Front Page

Robert Barnes has published a piece in the Washington Post about fun ways to follow the Supreme Court. We are extremely excited about his extensive coverage of FantasySCOTUS, LexPredict, and {Marshall}+.

Here are the highlights:

And while a justice’s decisions are drawn from years of legal experience, ideology, constitutional interpretation and a keen attention to facts, Josh Blackman thinks even high school students can predict the outcome. HisSupreme Court fantasy leagues let thousands of enthusiasts play along.

Blackman, a professor at the South Texas College of Law, started his Scotus prediction site website because “I thought it would be a fun game for Supreme Court nerds.” But he was surprised at how many there were.

FantasyScotus has grown to have dozens of leagues such as “Big Dicta” and “You Can’t Handle the Ruth”–another tribute to Ginsburg, it appears–and players can compete for a $10,000 prize.

Blackman also subscribes to the theory that “the more we can understand the court, the better off we all are.” He started the fantasy league predicting Supreme Court outcomes in 2009, not really knowing who would sign up.

He estimates that 25,000 players have participated since then. Through The Harlan Institute, Blackman has created lesson plans for teachers and a prediction contest for high school students.

And this year at FantasySCOTUS, Thomson-Reuters is offering cash prizes for the player with the most accurate predictions.

Blackman will be among those playing, to some extent. Along with fellow law professors Dan Katz and Michael J. Bommarito of Michigan State University, Blackman developed a head-spinningly complex machine-learning algorithm that they say can predict Supreme Court cases at 70% accuracy.

The professors call their algorithm {Marshall}+, after Chief Justice John Marshall. Blackman is now recruiting a team of Supreme Court experts to compete against. It would be like that time the computer Watson took on the humans in Jeopardy!

But Blackman thinks the contest will be more like spring training, where he discovers in what kinds of cases {Marshall}+ excells, and those in which he (it?) falters.

For this term, at least, he expects the humans to win.

Update: The Story appears on A1, below the fold! The PDF is here.

The Washington Post

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Oct 24, 2014

VP Biden’s Aides Were “Miffed” After Sotomayor Rescheduled His Inaugural Oath

Back in January of 2013, I blogged how Justice Sotomayor rescheduled Vice President Biden’s inaugural oath so she could attend a book signing in New York. I thought this was inappropriate, and offensive. The VP shrugged it off, but we learn in Joan Biskupic’s book that the VP’s staff was “miffed”:

After the reelection victory, Vice President Biden asked Justice Sotomayor to administer the oath of office for the January 20, 2013, inaugural. She agreed, but imposed a condition. She needed the event moved up four hours earlier than the traditional noon ceremony. Sotomayor had committed to a book signing in Manhattan that afternoon and wanted to make sure she got to it. Biden’s aides were miffed. The Los Angeles Times, the first to report that Biden would not be sworn in with Obama, cheekily observed that Sotomayor would not reveal her plans, that she simply “had somewhere else to be.” Court officials would not confirm that Sotomayor’s schedule was dictated by the book event posted on the Barnes & Noble website. 14 A writer on the legal blog Above the Law remarked, “What was more important to Justice Sonia Sotomayor than swearing in Joe Biden as VP at noon on Sunday? Signing books at Barnes & Noble in New York City. Not so wise Latina.” 15 But Sotomayor’s move passed with little public interest or real press scrutiny. Even Vice President Biden accepted the situation matter-of-factly, telling his 120 guests as she rushed off on the morning of the inauguration, “I wanted to explain to you what a wonderful honor it was and how much out of her way the justice had to go. She is due in New York … We are going to walk out , you see her car’s waiting so she can catch a train I hope I haven’t caused her to miss.”

I’m glad Biden was a good sport about it.


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Oct 24, 2014

Video Talk at U.C. Davis Federalist Society Chapter – Gridlock and Executive Power

On Thursday, I gave a talk at the U.C. Davis Federalist Society Chapter about Gridlock and Executive Power. My good friend Jack Chin provided some thoughtful comments about the scope of executive discretion. For example, I was not aware that it is a federal offense to use the word “federal” in any business name–FedEx beware! In-and-out burgers were served. All enjoyed it! Here is the video.





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Oct 24, 2014

Romer in Reverse? Laws That Protect People From LGBT Discrimination Claims

In Romer v. Evans, the Court invalidated a Colorado constitutional amendment that prevented localities from providing certain protections to gay people. Justice Kennedy found that this law singled out a class of people, and heaped a special disability onto them. This violated the Equal Protection clause.

In the wake of recent decisions invalidating bans on same-sex marriage, we may see Romer, in reverse. Utah is considering a state constitutional amendment that prevents churches from being forced to perform same-sex marriages. Sen. Jim Dabakis, a gay and married state senator from Salt Lake City (did anyone think that position could have existed only a few years ago?) supports that law, warned that he would oppose any laws that singled out LGBT people as a special class.

But Dabakis has warned that he and others would fight expansion of such legislation to include allowing wedding photographers, wedding cake bakers, reception centers or other businesses to choose not to serve same-sex couples.

“I would have a problem if they start saying LGBT people are in a special class, and they can be discriminated against,” Dabakis said earlier this month.

Is’t this Romer in reverse? In Romer, a state constitutional amendment was passed that singled out gays as a class of people who could not receive certain protections under the law. As Justice Scalia’s dissent characterized it, the law ensured that everyone was being treated equally, but the majority rejected that understanding of the law.

Here, the situation is exactly the opposite. People would now be allowed to discriminate against LGBT customers. Gays would be singled out as a single class, by statute, as a group that cannot bring any claims for discrimination from certain businesses. Depending how these laws are framed, and the background behind them, I can see a Romer challenge lurking.

There is some irony that we’ve gone from Romer, which prevented cities from providing special protections to gays, to these proposed laws, which would deny gays the protections achieved as a result of same-sex marriage bans falling. It’s been a busy two decades!

I’m putting aside for the moment whether these businesses can be required to provide certain services in violation of First Amendment right against compelled speech, or state religious freedom restoration acts. The compelled speech issue–forcing people to officiate at weddings, bake a wedding cake,  photograph a wedding, etc.–is quite serious, and would trump any state statute. But state RFRAs would still be subject to a Romer claim as violative of equal protection as applied.

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Oct 23, 2014

Why did Larry Tribe become a ConLaw Professor?

In a series of video interviews with SCOTUSBlog, Harvard Law Professors offers these thoughts about why he chose constitutional law–with the presumption that he could have done anything else:

“People ask, ‘Why did you pick constitutional law?’  I mean, come on.  Who, with a real opportunity to dig into a subject of law would not want that to be constitutional law?  It has everything.  It has history.  It has moral philosophy.  The meaning of liberty, of equality, of dignity.  It has legal technicalities galore.  It has precedent.  It involves strategy, dealing with complicated human situations and the people who are affected by law, and the human dynamics of complicated institutions like the U.S. Supreme Court.”

A disproportionate share of aspiring law professors want to teach constitutional law, for many of the reasons Tribe suggests. A very small number of them will ever be able to claim one of the few ConLaw lecterns–among the most coveted.

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Oct 23, 2014

Comparing Justices Sotomayor and Kagan

One of the themes that Joan Biskupic developed in her new book, Breaking In, was how the more senior Justices perceived their newest colleagues–Justices Sotomayor and Kagan. While Biskupic goes out of her way not to do a direct comparison, at various points throughout the book, we gain insights into how the “colleagues” view them.

Kagan, is a “shrewd tactician.” Sotomayor is a “solo operator.”

Justice Kagan has become known as a shrewd tactician among her colleagues. She has been held up by White House officials as a model for Obama appointees to all federal courts— a judge who has the “potential to persuade” conservative colleagues. 16 Kagan’s pattern on the bench and in opinions indicates that she sees herself operating strategically as one of nine justices. Sotomayor, in contrast, is more of a solo operator, engrossed in her own determinations on a case, less interested and adept in getting others to adopt them.

The Justices also say her desire to shake things up “reflected the core of her character.”

 As surprising as her salsa dancing was at the first end-of-term party, some justices say it now seems to have reflected the core of her character. She shakes up the proceedings and confronts her colleagues in their private discussions of cases.

Nor was she “apt to influence colleagues.”

A substantive compromise eluded them, and it would not have fallen to Sotomayor to broker a deal. This was an area of the law she knew well, certainly . And she had strong views on racial and ethnic policy. But she had generally kept them quiet. And in terms of persuasive force, some judicial colleagues said later that although Sotomayor was clear in making her own opinions known, she was not apt to influence colleagues whose legal views differed from hers. The Second Circuit judges would not disclose all that went on behind the scenes. Speaking generally, Pooler described Sotomayor as a judge who steeped herself in the facts and the law of a case . She said she could sometimes hold tight to her position, wondering of colleagues, “Why can’t you see it?” Yet in these years as an appeals court judge, Sotomayor was cautious and not known for heated dissents or splitting off from her colleagues.

Kagan enamored her colleagues.

The tactics and style that the former Harvard Law School dean brought to the Court were not lost on more senior colleagues, particularly veteran justice Ginsburg, who considered Kagan a persuasive force who might blunt the majority’s move to the right. Even Kagan’s ideological opposite, Chief Justice Roberts, publicly lauded her oral argument style and fluid writing.

(I get the sense that RBG fawns over Elena, but not so much Sonia.)

And in contrast to Kagan, Sotomayor’s early performance in the Court surprised her colleagues.

In these early years, Sotomayor drew more than her share of grimaces from justices in the public courtroom. Sotomayor asserted that she usually had a plan in mind when she jumped into the questioning: “Something most people will learn about me, I get so intensely engaged in argument that it’s never fake,” she said in an early interview. “Every question I ask has a purpose, it has some importance to something that is troubling me or that I’m curious about.”

But some Justices thought her demeanor during oral arguments may be counterproductive.

Some colleagues said they believed her dominant presence on the bench and in conference was an attempt to challenge the doubters, to prove that she was prepared for cases. Others, however, said they believed her manner undercut her ability to work toward consensus.

Yet, this question was “complicated by the dimensions of ethnicity and class.”

 Overall, what did the other justices really think of her? It was a question that arose often among lawyers, journalists, and other close followers of the Court . The query naturally came up because of how Sotomayor stood out. Yet in these tradition- bound environs, where most justices shared backgrounds of privilege, it was a question complicated by the dimensions of ethnicity and class. And there was no single answer. It was clear through interviews with her colleagues that Sotomayor engendered appreciation for her life story and respect for her work ethic. The justices varied in their personal assessments, as is natural with any group: some found her warm, amiable; others found her abrupt and exasperating. At the human level, these differences with her were not small. In the larger scheme of the law, they were. The nine were appointed for life, and they had an incentive to get along. Any qualms expressed by colleagues about Sotomayor were minuscule compared with clashes among the nine in the great span of history.

I think there is a lot buried in this paragraph that Biskupic alludes to, but alas, we are left to speculate what the Justices really think about the penultimate Junior Justice.

Sotomayor resists any comparisons.

Justices Sotomayor and Kagan maneuvered differently among colleagues. Justice Sotomayor often operated autonomously, staking out a position and standing firm. She would not hesitate to write lone concurring opinions, differentiating her views from those of the other liberals. Justice Kagan saw herself more as one of nine in a collective process and during her early tenure never broke off to pen a solo concurrence. Sotomayor resisted comparisons with other justices, saying she considered them counterproductive. Speaking generally, she said that throughout her life she knew there would always be someone who would seem smarter, faster, and better. She said the comparisons she preferred were personal to her: “Am I learning? Am I getting better?” Some senior justices, too, rejected the inevitable comparisons between the two Obama appointees, both Princeton graduates and New Yorkers, noting that outside legal analysts were not equally quick to compare Roberts and Alito, George W. Bush appointees who joined the Court within months of each other.

Again, Biskupic alleges to the fact that Sotomayor and Kagan are compared in ways that Roberts and Alito are not, due to, I presume, complexities about ethnicity and class. I suppose, as Justice Sotomayor is fond of reminding us, race matters.

Read the book. There is a lot of important nuance throughout.

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Oct 22, 2014

Events at U.C. Davis and Sacramento Federalist Society

On Thursday at 12:00 p.m., I will be speaking at the U.C. Davis Federalist Society Chapter on the constitutionality of the President’s Executive Powers. My good friend Jack Chin will be providing comments. On Friday, I will be addressing the Sacramento Federalist Society chapter for a lunchtime talk at the same time. The lunch will be at Lucca Restaurant & Bar. I hope to see you there!

This week, I will have hit all domestic time zones: Eastern (Philadelphia), Central (Houston), Mountain (Layover at PHX), and Pacific (Sacramento).

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Oct 22, 2014

Audio: ISIS, Immigration, and Obamacare: The Constitutional of President Obama’s Executive Actions

On Monday, October 20 I spoke to my friends at the Philadelphia Federalist Society Chapter about the constitutionality of the President’s executive actions, with a focus on ISIS, Immigration, and Obamacare. The audio is here:

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Oct 22, 2014

NYC Will Not Honor Federal Immigration Unless Person Convicted of “Violent or Serious Crime”

A few weeks ago I blogged about a Times reports that NYC will stop honoring any requests from immigration authorities, unless it is accompanied by a warrant from a federal judge. And then, they may decline to honor the request if the suspect has not been convicted of a “violent or serious crime.”

New York City would stop honoring detention requests issued by United States immigration authorities without a warrant from a federal judge, according to a proposal announced by the City Council on Thursday.

The bill also stipulates that even with a judge’s warrant, the Police and Correction Departments may honor a request for a hold, known as a detainer, only if the subject has been convicted of a “violent or serious crime.”

I understand that courts have held that local governments are not bound by civil detainers, but I was troubled that the City may in fact ignore warrants that do not involved “violent or serious crimes.” I held off on a final judgment until I saw a copy of the proposed bill.

That bill is now available online, and here is the relevant text:

2. Paragraph one of this subdivision shall not apply under any of the following circumstances:
(i) A]
may only honor a civil immigration detainer by holding a person beyond the time when such person would otherwise be released from the department’s custody, in addition to such reasonable time as is necessary to conduct the search specified in subparagraph (ii) of this paragraph, or by notifying federal immigration authorities of such person’s release, if:
i. federal immigration authorities present the department with a judicial warrant for the detention of the person who is the subject of such civil immigration detainer at the time such civil immigration detainer is presented; and
ii. a search, conducted at or about the time when such person would otherwise be released from the department’s custody, of state and federal databases, or any similar or successor databases, accessed through the New York state division of criminal justice services e-JusticeNY computer application, or any similar or successor computer application maintained by the city of New York or state of New York, indicates, or the department has been informed by a court or any other governmental entity, that such person:
A. has been convicted of a [covered] violent or serious crime[;],
[B. is a defendant in a pending covered criminal case;
C. has an outstanding criminal warrant in the state of New York or another jurisdiction in the United States;
D. is identified as a known gang member in the database of the national crime information center or any similar or successor database maintained by the United States;] or
[E] B. is identified as a possible match in the terrorist screening database.  
[(ii) The search conducted pursuant to subparagraph i of this paragraph indicates, or the department has been informed by federal immigration authorities, that such person:
A. has an outstanding warrant of removal issued pursuant to 8 C.F.R. 241.2; or
B. is or has previously been subject to a final order of removal pursuant to 8 C.F.R. 1241.1.]
Serious or violent crime is defined:
2. “Convicted of a [covered] violent or serious crime” shall mean a [final] judgment [of guilt] pursuant to section 1.20(15) of the criminal procedure law entered on a [covered] violent or serious crime, [including a conditional discharge pursuant to section 410.10 of the criminal procedure law, or a comparable provision of federal law or the law of another state] or a conviction under federal law or the law of another state that would constitute a “predicate felony conviction” pursuant to section 70.06(1)(b)(i) of the penal law provided that such conviction was for the equivalent of a violent or serious crime.
If I am reading this right (and please correct me if I’m not), when the City of New York receives a federal warrant to turn over a person on immigration charges, the City will not turn over the person unless the City determines that he has committed a “violent or serious crime” defined under New York law, or a “comparable provision of federal law or the law of another state,” or bears some other indicia of dangerousness. This is exactly how the Times described the bill.

How is this valid? If a federal judge or magistrate finds probably cause, and issues a warrant, how can New York City add an additional requirement, and determine that it will not turn the person over if the person has not committed a “violent or serious crime.” A misdemeanor, or non-serious crime will not suffice.

The New York law seeks to disregard certain warrants they deem not serious enough. This is where the policy runs afoul.

I welcome other thoughts on this. Also, I’m sure the Department of Justice will rush to stop this law–which frustrates federal policy–the way it did with Arizona’s SB 1070.

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Oct 22, 2014

Audio of my Panel at Forbes #Under30Summit: “The Lost Vote”

Forbes Magazine invited me to speak on a panel at their inaugural 30 under 30 Summit in Philadelphia. The topic of the Panel was “The Lost Vote,” with a focus on how millenials view politics today. Moderating the panel was McKay Coppins of Buzzfeed. I spoke alongside Nate Levine (Founder, OpenGov)and Nathaniel Loewentheil (Policy Advisor, The White House National Economic Council).

Forbes has a writeup here:

With midterm elections just weeks away, the state of young voters and whether they will come to the polls remains a question. The reason for that may not be election, but the recent troubles in Washington and the rift that has caused with millennials.

“We are looking at a generation of voters who are very passionate about many issues, very plugged into the news, plugged into tech, know what’s going on in the world but are very uninterested in identifying with or participating in partisan politics,” said McKay Coppins, senior political writer at Buzzfeed.

Coppins moderated a panel with Assistant Professor of Law at the South Texas College of Law Josh Blackman, Founder of OpenGov Nate Levine and Policy Advisor for The White House National Economic Council Nathaniel Loewentheil.

The panel was part of the Forbes Under 30 Summit and discussed why voters don’t feel a major draw to a political party. Half of young Americans don’t subscribe to the Democratic or Republican party, the highest percentage the Pew Research Center has measured in the 25 years it has been tracking disaffiliation.


At the crux of the argument surrounding the lack of partisanship was trust and transparency. Winning back the trust of some Americans will be a major hurdle for any candidate running in the upcoming elections.

“What the last six years have taught us is that there is a serious lack of trust,” Blackman said. “Everything from wiretapping to Edward Snowden to drone strikes, all the things we thought were transparent, were not.”



I posted the audio here:

The primary point I tried to convey is that massive distrust in government is breeding libertarian sentiments. In the wake of the Snowden disclosures about NSA wiretapping, revelations that President Obama is using drone strikes to kill American Citizens, and the prosecution of reporters, there has been a paradigm shift. The very government that promised to be the most transparent administration in history is doing the precise opposite. McKay asked me if this means that Rand Paul is correct, and we are ushering in a libertarian moment. I don’t know if I’m willing to go that far, but I do think a lack of trust provides a fertile basis for libertarianism. I also explained that it is hard for any president to “resist the siren song of statism.” All Executives seem to steer into the shores.

One other area where Nate Lowentheil and I disagreed about was the role of technology to help income inequality. I cited Uber as an example of a disruptive technology that promotes economic mobility by dismantling occupational licensing. Now, people can pursue employment with Uber without having to jump through all the barriers to entry inherent with taxi cartels. I’ll let my friend Evan Baehr describe the exchange in tweet form:

And some more tweets.

photo 1

photo 2

photo 3

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Oct 22, 2014

Prop1 Class 18 – Marital Property II

The lecture notes are here, and the live chat is here.

What is the value of a law degree? According to a (controversial) article, titled The Economic Value of a Law Degree, the value of a law degree, as opposed to stopping with a bachelor’s degree is roughly $1 million over the course of the year:

After controlling for observable ability sorting, we find that a law degree is associated with a 60 percent median increase in monthly earnings and 50 percent increase in median hourly wages. The mean annual earnings premium of a law degree is approximately $53,300 in 2012 dollars. The law degree earnings premium is cyclical and recent years are within historical norms.

We estimate the mean pre-tax lifetime value of a law degree as approximately $1,000,000.

This chart depicts the value of a law degree over the course of a persons’ career.


This chart breaks down the lifetime earnings from a law degree by decade across percentiles (ranging from people the bottom to the top of law degree holders):


Here are the numbers broken down by gender:


This is the great diva Frederica von Stade.


Here is Stade singing at the 1991 Metropolitan Opera Gala

And more opera.

Justice Ginsburg, one of the most famous opera fans in the country, is a huge fan of von Stade, listing her work as among her favorite:

Mozart, “The Marriage of Figaro”; Samuel Ramey, Lucia Popp, Thomas Allen, Kiri Te Kanawa, Frederica von Stade, Kurt Moll, Robert Tear, Georg Solti conducting the London Philharmonic and London Opera Chorus (Decca).

The duo also share something else in common. They were both selected by the Georgia O’Keeffee Museum as Woman of Distinction: RBG and van Stade.

Sec. 2.401.  PROOF OF INFORMAL MARRIAGE. (a) In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that:

(1)  a declaration of their marriage has been signed as provided by this subchapter; or

(2)  the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and there represented to others that they were married.

(b)  If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.

(c)  A person under 18 years of age may not:

(1)  be a party to an informal marriage; or

(2)  execute a declaration of informal marriage under Section 2.402.

(d)  A person may not be a party to an informal marriage or execute a declaration of an informal marriage if the person is presently married to a person who is not the other party to the informal marriage or declaration of an informal marriage, as applicable.

Also relevant for our discussion is 2.001 (emphasis added):

Sec. 2.001.  MARRIAGE LICENSE. (a) A man and a woman desiring to enter into a ceremonial marriage must obtain a marriage license from the county clerk of any county of this state.

(b)  A license may not be issued for the marriage of persons of the same sex.


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Oct 22, 2014

Prop2 Class 18 – Zoning III

Today we will continue our coverage of zoning, with a focus on aesthetics (a word I am incapable of spelling without spell check).

The lecture notes are here, and the live chat is here.

For the first case, State ex rel Stoyanoff v. Berkely, Ladue, MO is the wealthiest suburb of Missouri (anyone know what ex rel means?). The media income was $141,000. Check out the property values on Zillow–most houses are over $1 million. Ladue, also the site of the third case, City of Ladue v. Gileo, has particularly high property values in the Willow Hill subdivision.

This is a rendering of the Stoyanoff house:


For you Rand fans, the Stoyanoff case may remind you a bit of The Fountainhead.









Roark, the architect in the Fountainhead was inspired by Frank Lloyd Wright who designed Falling Water.

[Fallingwater: fall photo]


For the second case, Anderson v. Issaquah, you can learn more about Issaquah, Washington here. Here is a map of 145 N.W. Gilman Blvd, Issaquah, WA. It seems to be an Auto Tech store now.

View Larger Map

And  for an adverse possession flashback, check out this video. A homeowner in Detroit left her house vacant for a year and a squatter moved in. The squatter put a lien on the house, and now refuses to leave. The homeowner is in the process of filing the action to oust the squatter. But until that happens, under Michigan law, the homeowner can’t physically eject the squatter. So, they are both living under the same roof. Unbelievable.

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Oct 21, 2014

Breyer Invalidates San Francisco Law That Forces Landlords To Pay Tenants To Leave Property

Judge Charles Breyer that is, not his somewhat-more famous brother Justice Stephen Breyer. PLF has the story:

Today, U.S. District Court Judge Charles Breyer sided with Pacific Legal Foundation’s (PLF) lawsuit and struck down San Francisco’s Tenant Relocation Ordinance, as unconstitutional.

Under the ordinance, rental property owners who want to reclaim use of their own property must pay a massive sum to their tenants – a sum that the tenant doesn’t even have to use for relocation purposes.

PLF’s lead clients are Dan and Maria Levin, who live in the upstairs unit of their two-story home.   They would like to use the lower unit for friends and family, but they would have to pay their tenant $118,000 to withdraw it from the rental market.

Judge Breyer found an unconstitutional exaction:

The Court holds that the Ordinance effects an unconstitutional taking by conditioning property owners’ right to withdraw their property on a monetary exaction not sufficiently related to the impact of the withdrawal. See Nollan v. California Coastal Comm’n, 483 U.S. 825, 837 (1987); Dolan v. City of Tigard, 5 512 U.S. 374, 395 (1994); Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2599 (2013).

His brother dissented in Koontz, but was not yet on the Court for Nollan or Dolan.

In the event this case makes it to SCOTUS, Justice Breyer would recuse, as is his practice. Just what we need. Another 4-4 Takings case (after Stop the Beach and Justice Stevens’s recusal). Another case where Judge Reinhardt can set Supreme Court policy.

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Oct 21, 2014

Obama on Gridlock and the Courts

In Jeff Toobin’s interview with President Obama, we gained further insight into how the President views the relationship between gridlock and executive power.

Obama has stopped pretending that he has much respect for Congress. He had minimal tolerance for legislative horse-trading even when he was a legislator. Now, after six years of implacable Republican opposition to everything he has proposed, he sounds fed up.

“Because Congress is not working the way it’s supposed to, there’s both pressure on administrative agencies and pressure on the courts to sort through, interpret, and validate or not validate decisions that in a better-functioning democracy would be clearer and less ambiguous,” Obama said.

This explanation is keeping with the President’s view that gridlock provides a justification, or “safety valve” to use the Solicitor General’s explanation during Noel Canning, to engage in more robust executive power. See my article Gridlock and Executive Power for more details.

Yet, the President’s theory departs from reality, because he firmly believes that Congress voting “no” on something is not taking action.

He pointed out that the failure of Congress to pass legislation on climate change and immigration left his Administration with little guidance on how to proceed on those issues. When there is gridlock in Congress, “the executive branch has to make a whole series of decisions,” Obama said. “That, in turn, puts more burden on the Court to interpret whether the executive actions are within the authority of the President and whether they’re interpreting statutes properly. All of which I think further politicizes the courts.”

Congress voted no on the President’s immigration policy (albeit by one vote in the Senate). That is not a failure to provide guidance. They provided guidance. They said no. At which point the President can try something else. Instead, he worked around Congress with DACA, and whatever we will get after the election.

As to his argument that his executive actions politicizes the Courts, I think he needs to take stock of the fact that virtually every SCOTUS decision against him in this realm has been a 9-0 reversal, most recently Noel Canning. This is one of the rare areas where the President has united people who usually disagree–the 9 Justices of the Court!

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