Aug 1, 2016

What happened to federal judges in the South during the Civil War?

After the outbreak of the Civil War, all federal judges in the South resigned, save one–West. H. Humphrey’s of the District of Tennessee. The Eastern District of Tennessee’s Historical Society had this account in its 2011 newsletter:

In his oral history, conducted by the Court Historical Society in As the country observes the 150th anniversary of the beginning of the Civil war this spring, it’s worth mentioning here the unusual circumstances involving the U.S. district judge who served the Tennessee District during those days–West H. Humphreys of Clarksville.

There were three district court jurisdictions in Tennessee at that with one judge presiding over all three–Judge Humphreys. When Tennessee seceded from the Union in June 1861, Judge Humphreys accepted an appointment as a Confederate district judge, but he did not resign from his federal judgeship like all federal judges of other seceded states did.

The U.S. Senate impeached Humphreys in 1862, barring him from holding future office in the United States government. Humphreys continued to sit on the Confederate bench in Knoxville until 1863, when the city was captured by federal forces. Humphreys fled to Alabama. Hew as captured there in December 1864 but was later exchanged as a prisoner of war.

In September 1865, he took an oath of allegiance to the United States and sought–and was granted–amnesty by President Johnson. [JB: A native of Tennessee]. Humphreys continued to practice law until his death in 1882.

The federal Judgeship that Humphreys held was filled by Knoxville lawyer Connally F. Trigg upon Humphrey’s impeachment. Trigg was appointed by President Abraham Lincoln and served until his death in 1880.

Richard Aynes wrote further on Humphreys’ impeachment.

H/T to longtime reader Stephen R.



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Aug 1, 2016

“Gridlock” Forthcoming in the Harvard Law Review “Supreme Court 2015 Term” Issue

I am beyond ecstatic that my new article, Gridlock, will be published in the Harvard Law Review’s “Supreme Court 2015 Term” issue in November. This article synthesizes the Court’s non-decisions in Zubik v. Burwell and U.S. v. Texas as an analysis of the separation of powers, the major questions doctrine, and political theory.

The article builds on a draft I wrote two years ago, but never published–Gridlock and Executive Power–my two part series on DAPA, as well as amicus briefs I filed on behalf of Cato in King v. Burwell, Zubik (cert and merit stage), and Texas (district court, circuit court, and SCOTUS). Ultimately, this will form the basis of several chapters in my third book, tentatively titled A Constitutional History of the United States: 2009-2016.

Here is the abstract for Gridlock:

Two of the biggest cases at the Supreme Court this past term ended as they began: gridlocked. In Zubik v. Burwell, the Justices declined to decide the validity of the accommodation to the Affordable Care Act’s (ACA) contraceptive mandate. In United States v. Texas, the Court divided four-to-four on whether Deferred Action for Parents of Americans (DAPA) was lawful.

Both cases involved extremely delicate line-drawing. In the former, the Justices had to determine whether an accommodation to the contraceptive mandate imposed a substantial burden on the free exercise of religious organizations. In the latter, the Court was called on to resolve the scope of the President’s prosecutorial discretion to shield from removal and grant lawful presence to four million aliens. During oral arguments—our only source of insights, because neither case generated a decision on the merits—the Justices seemed divided on how to balance these competing concerns. In the end, the Court resolved neither case—at least for now.

The eight Justices can be forgiven for not being able to reach a clear decision. Congress, and not the courts, should lead these debates over such profound questions about religious liberty and the separation of powers. Indeed, critics allege that both suits are actually policy disputes masquerading as legal controversies. But these suits arose precisely because Congress did not grapple with these foundational issues. Congress was entirely silent about religious accommodations for the mandate, and Congress affirmatively rejected a change to the immigration status quo. Instead, the administration seized on this inaction to justify executive actions that advanced an expansive change in policy.

My goal in this article is not to explain whether DAPA complies with the Immigration and Nationality Act (INA), or if the contraception mandate’s accommodation violates the Religious Freedom Restoration Act (RFRA). In fairness, the Court didn’t either. Rather, I use these two cases to illustrate the relationship between gridlocked government and the separation of powers. Part I applies this framework to Zubik v. Burwell, to demonstrate how congressional silence does not vest the executive branch with the awesome authority to make foundational determinations affecting conscience. Part II analyzes U.S. v. Texas to explain how congressional gridlock does not license the expansion of the executive’s powers. I conclude with a preview of how these still-pending cases are likely to be resolved on remand.

The HLR production schedule is rigorous. From the day U.S. v. Texas was 4-4’d, I had less than three weeks to submit the first draft. So far, the article has gone through the first round of edits–known as the “President’s Read Memo.” It’s exactly what it sounds like. The President of the Law Review sent me an extremely detailed memo (roughly 1/3 the length of the article itself!) that provided comments and suggestions. I found them extremely helpful, and rewrote much of the article over the past two weeks. I still have some room to make changes, so if you have comments, please feel free to share them. And in case anyone is curious, under HLR’s rules, I am allowed to post the draft on SSRN before the November publication date. Although I am not allowed to post versions that include the HLR line-edits. So the next version you’ll see is on November 10.

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Jul 31, 2016

Several big announcements coming this week

I apologize for the extremely light blogging over the past month. I’ve been working on several significant projects that I will be announcing over the course of this week. Stay tuned.

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Jul 28, 2016

Know who won’t get a convention bounce? Merrick Garland #SCOTUS

During the four days of the Democratic National Convention, the Supreme Court was mentioned by Hillary Clinton, Bernie Sanders, Barbara Mikulski, Jesse Jackson, Nancy Pelosi, Andrew Cuomo, Harry Reid, Cecile Richards, and others. Total mentions of Merrick Garland? Zero. I think this is a good sign that a President Clinton would not renominate Garland.


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Jul 28, 2016

NY Times Humor Column Unwittingly Makes The Case Against “Smart” Guns

Joyce Wadler, a humorist for the New York Times, wrote a satirical column about not being able to unlock her iPhone quickly enough to take a picture of teenagers who assaulted her.

Then I remember what the modern victim is supposed to do: Get a photo. I open the flap of my cross-body bag; unzip the phone pouch; try to unlock my phone with a sweaty fingerprint — and fail, because wet hands mess up the ID; punch in my security code; swipe through the icons for the camera; find it; and aim. By which time the kids have, of course, disappeared.

You know those assault horror stories that have exploded this summer? Women groped on subways; perverts exposing themselves; black drivers pulled over and terrorized by the police; officers murdered by snipers.

What has amazed me about these crimes is the ability of many victims or passers-by to quickly grab their phones and get a photo. Or live-stream the attackers on Facebook. America is a country of quick-draw artists, with apps instead of guns.

But not me. I am, I realize, one of those helpless townspeople who after years of being terrorized by a gang of sneering bandits, would have to hire a gunman. Clint Eastwood, say, in a remake of “High Plains Drifter” — call it “High Line Drifter.”

This is precisely why smart guns are impractical. The decision to use a gun must be made in a split-second. (If you don’t think anyone can ever use a gun in self-defense, no need to read the rest of the post–your position is to ban guns altogether). Having to deal with a finger-print reader, or wearing a special bracelet to activate the gun, adds unnecessary time before it can be used. And that’s assuming these electronic devices work. If the battery dies, or your finger print is sweaty, or the software crashes, it is too late.

In January, President Obama asked “If we can set it up so you can’t unlock your phone unless you’ve got the right fingerprint, why can’t we do the same thing for our guns?” Ms. Wadler illustrated the point clearly.

In any event, Apple recognized that when it comes to snapping the perfect selfie, every second counts. On the iPhone, there is a feature that allows you to take a picture without having to use a fingerprint, or code to unlock the phone.All you have to do is swipe up with the camera icon, and it goes straight to the camera app. Why do you think Steve Jobs and company inserted that feature? Because if you enter the wrong code, or if your finger is sweaty, the phone doesn’t unlock right away. When you have to take a selfie at *just* the right moment, and seconds count, requiring the user to unlock the phone takes too much time.


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

I’m reminded of this exchange during D.C. v. Heller between Walter Dellinger and the Chief and Scalia about how long it takes to remove a trigger lock.

John G. Roberts, Jr. So how long does it take? If your interpretation is correct, how long does it take to remove the trigger lock and make the gun operable.

Walter E. Dellinger, III –You… you place a trigger lock on and it has… the version I have, a few… you can buy them at 17th Street Hardware… has a code, like a three-digit code. You turn to the code and you pull it apart. That’s all it takes. Even… it took me 3 seconds.

Antonin Scalia You turn on, you turn on the lamp next to your bed so you can… you can turn the knob at 3-22-95, and so somebody–

Walter E. Dellinger, III Well–

John G. Roberts, Jr. Is it like that? Is it a numerical code?

Walter E. Dellinger, III –Yes, you can have one with a numerical code.

John G. Roberts, Jr. So then you turn on the lamp, you pick up your reading glasses…–


Walter E. Dellinger, III Let me tell you. That’s right. Let me tell you why at the end of the day this doesn’t… this doesn’t matter, for two reasons. The lesson–

John G. Roberts, Jr. It may not matter, but I’d like some idea about how long it takes.

Walter E. Dellinger, III –It took me 3 seconds. I’m not kidding.

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Jul 27, 2016

CJ Roberts Congratulates Judge Boggs on his 30th Anniversary

Recently, Judge Danny J. Boggs celebrated his thirtieth year on the Sixth Circuit. The Boggs clerk network learned that the Chief Justice wrote this congratulatory letter. My favorite line: “And we are all forever grateful that our employment does not depend on our answers to the quizzes you give your prospective law clerks.”


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Jul 26, 2016

Kaine: With a Ninth Justice #SCOTUS “Would Approve President Obama’s Executive Orders on DAPA and DACA”

During an interview on Telemundo, Democratic VP Nominee Tim Kaine weighed in on U.S. v. Texas:

Interviewer: It’s important to point out that you are a lawyer and understand very well how the laws work in this country because of that. So what can you do to support immigrants and the 11 million people whose lives are now in limbo? How can you help them have a decent life and stay in this country legally?

TK: That’s the big hope. There are a lot of people – the “Dreamers” and others – who want a path to citizenship, for example, a chance to come out of the shadows. But there’s something else we have to do: There are now eight justices on the Supreme Court. With nine justices, I think the Court would approve President Obama’s executive orders on DAPA and DACA. The Republicans are fighting the Court, because they don’t want a Court that would approve the president’s actions. And so, there is a big difference, and because of that the struggle between now and November is very important. There are other issues too, of course, but support for new Americans is one of our country’s values and a value that Secretary Clinton holds dear, and that’s going to make a big difference.


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Jul 24, 2016

Trump Doubles Down on Constitution as Suicide Pact: “Our Constitution is great” but it doesn’t “Give us the Right to Commit Suicide”

Last week I noticed that Donald Trump justified his muslim-immigration ban in language was reminiscent of Justice Jackson’s dissent in Terminello v. Chicago, which explained that the Constitution was not a suicide pact.

On Meet the Press, he used similar language. Someone on his team must have given him the suicide pact language, and he is running with it.

I actually don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territory. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that because I’m talking territory instead of Muslim. But just remember this. Our Constitution is great. But it doesn’t necessarily give us the right to commit suicide, okay? Now, we have a religious, you know, everybody wants to be protected. And that’s great. And that’s the wonderful part of our Constitution. I view it differently. Why are we committing suicide? Why are we doing that? But you know what? I live with our Constitution. I love our Constitution. I cherish our Constitution. We’re making it territorial.

The suicide clause in Article XII must have override the “religious” clause in Article I.

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Jul 23, 2016

Downgraded back to Economy

I had a new travel experience today on United. For my flight this morning, I received a complimentary upgrade to business class, so I relinquished my Economy Plus seat. After I was seated, enjoying my pre-takeoff orange juice, the gate agent told me I had to go back to coach. Why? I had to give up my seat to someone else, whose business class seat was broken. I asked “Am I the lowest-status person in business class”? She replied, “Yeah.” I got sent back to 18B, a regular economy seat–not even economy plus. I was actually worse off because of the upgrade followed by the downgrade. Though, on the bright side, I received a $250 travel voucher. Always something new in the friendly skies.

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Jul 22, 2016

Looking for volunteers to crowdsource edits for Unraveled

Unraveled will be published on September 27. The final proofs will be going through the editing process between July 25 and August 8. I am looking for volunteers to help crowdsource the proofs. To make this feasible, each volunteer will receive one chapter to review (about 20 pages), with a fairly short window to review it (2 days or so). At this late stage, I am only looking to fix typos, grammatical errors, or factual mistakes. No disagreements about usage and style.

As a reward, in addition to my eternal thanks, you’ll get a PDF of the book–though I hope you can also buy a copy when it’s released. There are 32 chapters, so I only need a limited number of volunteers. If you’re interested, and able to turn a chapter around on a fairly short basis, please drop me a line: josh at josh blackman dot com. Thanks!


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Jul 21, 2016

90 Second Recess with Bloomberg BNA

Last month I filmed a 90-second rapid fire Q&A session with Kimberly Robinson of Bloomberg BNA. (I assure you, she is real, and not just a Twitter bot). Kimberly asked me about everything from frozen yogurt at SCOTUS to my favorite case that I worked on, followed by a bonus trivia question. At the time I filmed it, my answer was correct, but as of this week, no longer.


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Jul 19, 2016

Talk tomorrow in Nashville on 1st Amendment, 2nd Amendment, and 3D-Printed Guns

On Wednesday, I am speaking to the Nashville Federalist Society Chapter about our ongoing case involving 3D Printed Guns, the 1st Amendment, and the 2nd Amendment. You can find the details here.

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Jul 18, 2016

Thoughts on DOJ’s Petition for Rehearing in U.S. v. Texas #SCOTUS

Today, the Justice Department petitioned the Court “for re-hearing of this case before a full nine-Member Court.” Success is unlikely here. If five Justices wanted to hold the case until there was a ninth Justice, rather than deciding the case by a 4-4 margin, they could have simply held it over, like they did with Citizens United. That didn’t happen, which tells me that they could not broker a compromise internally. Instead, they made the somewhat striking decision to affirm by an equally divided margin. Nudging from OSG is unlikely to change the equation.

The immediate effect of this petition is that it puts on hold the return of the mandate to the 5th Circuit. The Court does not need to wait until the long conference to deny a petition for rehearing. To give you a sense for timing, last year a petition for rehearing was filed in Davis v. Ayala on 7/13/15. It was distribued three days later on 7/16/15. The petition was then denied less than one month later on 8/10/15. The mandate issued the next day. If the Court follows a similar sequencing, the petition would be ruled by the third summer order list.

Judge Hanen currently has a hearing scheduled for 8/22/16. It’s possible DOJ will petition Judge Hanen will put the proceeding on hold. If the Court denies the rehearing right away on the third summer orders list, then this delay will not be meaningful. But if the petition is rescheduled many times, that delay may become indefinite. The DOJ’s hope is that the case will simply be held in SCOTUS limbo, with a series of reschedulings, until a ninth Justices is confirmed. This could take a while.

In their best case scenario, Judge Garland is confirmed during the lame-duck session. In that case, the petition will have to be rescheduled dozens of times.

If Garland is not nominated in the lameduck session, the outcome of this case hinges on the outcome of the election. If it is a President Trump, the case goes away, as DAPA will be rescinded. (We noted in our Cato brief that not deciding the case now would allow the case to go away through the political process). If it is Clinton, her nominee would receive a vote–at the earliest–in March of April. Only then could the case be reheard, with a possible special May sitting. Meanwhile, the petition for rehearing would set (what must be) a record for ten months or rescheduling!!

All of this seems very, very unlikely. The more likely route is to expedite the case through the lower court. Based on the 5th Circuit’s precedent, the outcome is certain. The case will likely come back up to the Supreme Court on certiorari around the same time the next Justice is confirmed.

It doesn’t make sense to grant this petition in light of the above timeline. But then again, absolutely nothing about this case has made any sense.

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Jul 17, 2016

Justice Jackson and Donald Trump on the Constitution as a Suicide Pact

Terminiello v. Chicago (Jackson, J., dissenting):

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

Donald J. Trump on his immigration ban from predominantly-Muslim nations:

“So you call it territories. OK? We’re going to do territories. We’re going to not let people come in from Syria that nobody knows who they are,” Trump said. “The Constitution — there’s nothing like it. But it doesn’t necessarily give us the right to commit suicide, as a country, OK? And I’ll tell you this: Call it whatever you want, change territories, but there are territories and terror states and terror nations that we’re not going to allow the people to come into our country. And we’re going to have a thing called ‘extreme vetting.’ And if people want to come in, there’s going to be extreme vetting.”

I genuinely wonder if someone gave him Jackson’s quote, and he was trying to reference it. Or maybe I’m giving him too much credit.


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Jul 15, 2016

Motivated Reasoning

The human mind has a tendency to understand things in a way that conforms to what we already believe in order to avoid cognitive dissonance. This phenomenon is referred to as motivated reasoning. (For a fascinating discussion, read Daniel Kahneman’s Thinking Fast & Slow). The reaction to the Inglorious RBG’s comments over the past week illustrates how motivated reasoning operates.

Ginsburg’s statements given to AP on Thursday, NYT on Friday, and CNN on Monday were absolutely inappropriate, by any standard. (It is remarkable that she didn’t have enough sense to stop talking to the media on Monday, after the outrage over the weekend!).

Yet many–who were inclined to agree with RBG’s comments–felt compelled to provide reasons to defend her. The arguments fell along a scale of sophistication. Some said that its better to know what judges think, so the comments were actually welcome.  Some said she has no fucks to give, and that’s awesome because Notorious. Others said that the rules of judicial ethics (even if they applied to SCOTUS) are constrained by the First Amendment. Others took a historical approach, and explained there is a long history of the Justices openly being involved with politics (note all the examples predate Abe Fortas–with good reason). Others tried to explain this was no different than Justice O’Connor telling friends at a private party who she supported for President, or Justice Scalia going on a hunting trip with VP Cheney (if you haven’t already, read Nino’s 20-page memorandum on recusal standards). Others explained that this was a momentous time like 1936, and it warranted a change in judicial norms. Others said Ginsburg was willing to risk the reputation of the Court to stop the calamity of Donald Trump. Others, invoking Godwin’s law, asked what did judges in Weimar Germany do to halt the rise of Hitler? I’m sure I’m missing some, because I frankly stopped reading all of these rationalizations after the first two days.

Were any of these Ginsburg’s motivations? Did she have the loftiest aspirations of preserving the Republic? Of course not. She screwed up. She wasn’t try to stop the next Hitler. She wasn’t carefully risking the legitimacy of the Court to save the Republic. She was repeating DNC talking points about Trump’s tax returns. And she admitted it.

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

As I told the WSJ Law Blog, expressing regret (there was no apology) conceded that her statements were inappropriate.

In a follow-up interview with Nina Totenberg, Ginsburg repeated that she erred:

RUTH BADER GINSBURG: Because it was incautious. I said something I should not have said, and I made a statement that reads, on reflection, my recent remarks and response to press inquiries were ill-advised. I regret making them. Judges should avoid commenting on a candidate for public office. In the future, I will be more circumspect.

TOTENBERG: I ask Ginsburg if she had just goofed.

GINSBURG: I would say yes to your question, and that’s why I gave the statement. I did something I should not have done. It’s over and done with, and I don’t want to discuss it anymore.

She goofed.

Over the past few years, Ginsburg has been showered in such sycophantic adoration, she hubristically thought she could do no wrong. As I wrote following Hobby Lobby, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” But with her most recent remarks, she crossed the line–and she admitted it.

This entire exercise teaches an important lesson about motivated reasoning. Sometimes, the real explanation is the most obvious one.

For easy reference, please see a post I wrote last year, “The Seven Stages of Criticizing Justice Ginsburg’s Extrajudicial Statements.” I think I captured all the various criticisms I get when discussing the extrajudicial statements of RBG.

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Jul 12, 2016

Inglorious RBG: Trump is a “faker” who has to release his tax returns

RBG continues to humiliate herself, and inject the Court into partisan politics. This time, Joan Biskupic got the scoop:

“He is a faker,” she said of the presumptive Republican presidential nominee, going point by point, as if presenting a legal brief. “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego. … How has he gotten away with not turning over his tax returns? The press seems to be very gentle with him on that.”

“At first I thought it was funny,” she said of Trump’s early candidacy. “To think that there’s a possibility that he could be president… ” Her voice trailed off gloomily.
“I think he has gotten so much free publicity,” she added, drawing a contrast between what she believes is tougher media treatment of Democratic candidate Hillary Clinton and returning to an overriding complaint: “Every other presidential candidate has turned over tax returns.”

And lest there be any doubt, she said Clinton will be the next President:

It was evident in our interview on Monday that when Ginsburg imagines who would succeed President Obama, she does not expect Trump to prevail over Clinton.
Acknowledging her own age and that Justices Anthony Kennedy and Stephen Breyer will turn 80 and 78, respectively, Ginsburg said of the possible next president: “She is bound to have a few appointments (to the Supreme Court) in her term.”

Would anyone think RBG could give Donald Trump a fair shake in Court? For all of Trump’s charges that Judge Curiel is rigged, RBG has played right into his hand. She would be rigged against him.

At this point, Ginsburg is literally parroting Democratic talking points. In her last interview in the New York Times, she said “That’s their job,” with respect to considering Garland. This is literally the DNC hashtag. #DoYourJob. Now she is scolding him for not releasing his tax returns. Hey RBG, the Justices don’t release their tax returns either. Maybe start a bit closer to home if you want to focus on transparency, huh?

I repeat my call that the Court should hold a William-O-Douglas-style intervention for RBG. Be quiet or step down. Or maybe the Chief can assign her only ERISA opinions until she behaves. We know how much she loves those.

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Jul 12, 2016

Who did SG Verrilli Recommend to Justice Sotomayor for #SCOTUS Clerkship Via Email?

Vice News filed a FOIA lawsuit against the Office of the Solicitor General, seeking any correspondences with the Justices. They found two.

The first was a 2013 email from SG Verrilli to Justice Sotomayor about a (redacted) law clerk applicant.

What’s curious about this is that Verrilli thanked the Justice for “reaching out to us.” It’s unclear if this was done by email. At first glance, the fact that the subject is “RE: Law Clerk applicants,” suggests Verrilli would be replying to an email from Sotomayor. But OSG only found these two correspondences. Unclear the sequencing here. But in any event, having a recommendation from the SG is pretty cool.

I attempted to work backwards to see if I could figure out if Sotomayor hired whomever Verrilli recommended. We have a few clues:

  • Male (pronoun “he”)
  • If he was being interviewed in the fall of 2013, that would mean he would have been hired during for OT 2014. According to David Lat’s November 2013 Hiring Watch post, Sotomayor only had one spot filled for OT 2014.
  • For Verrilli to go to bat for him, the applicant must have some connection to OSG, or perhaps the White House, or maybe from Jenner & Block.

Sotomayor’s three male clerks from OT 2014 were

1. Luke McCloud (Harvard 2011 / Niemeyer / Kavanaugh) –> No obvious connection to Verrilli.

2.  James Sigel (Harvard 2011 / Reinhardt / Liu (Cal.) / Tatel) –> No obvious connection to Verrilli.

3. Michael Pollack (NYU 2011 / J.R. Brown) –> Summer Intern at DOJ Appellate (2010), Summer Associate at Jenner & Block (2010), Summer Intern at OSG (2011), Trial Attorney at DOJ Federal Programs (2012-2014).

If Sotomayor did hire whomever Verilli recommended, I think the odds are pretty solid that it was Pollack. Indeed, it is difficult to imagine Sotomayor hiring someone who worked at both OSG and Jenner without seeking a recommendation from Verrilli.

Not my best legal SCOTUS Holmes exercise, but it’s up there.

Pollack is currently a Bigelow Fellow at Chicago.


The other email–far less interesting–is from Acting SG Katyal to Justice Kagan about where to hang her portrait in the OSG office.


Nothing earth-shattering here, but the first proof the Justices do send and receive emails with the outside world. It’s unclear if Justices Kagan and Sotomayor will now set up their own homebrew email server to evade FOIA.

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Jul 11, 2016

Obama and Clinton back Public Option for Obamacare

President Obama authored a “special communication” in the Journal of the American Medical Association titled “United States Health Care Reform Progress to Date and Next Steps.” (I chuckled because his bio line says “Barack Obama, J.D.” as if his law degree matters at this point).

The only newsworthy element of the communication is that Obama has officially endorsed amending the ACA to include a  public option–which was blocked by moderate Democrats back in 2009.

Third, more can and should be done to enhance competition in the Marketplaces. For most Americans in most places, the Marketplaces are working. The ACA supports competition and has encouraged the entry of hospital-based plans, Medicaid managed care plans, and other plans into new areas. As a result, the majority of the country has benefited from competition in the Marketplaces, with 88% of enrollees living in counties with at least 3 issuers in 2016, which helps keep costs in these areas low.57,58 However, the remaining 12% of enrollees live in areas with only 1 or 2 issuers. Some parts of the country have struggled with limited insurance market competition for many years, which is one reason that, in the original debate over health reform, Congress considered and I supported including a Medicare-like public plan. Public programs like Medicare often deliver care more cost-effectively by curtailing administrative overhead and securing better prices from providers.59,60 The public plan did not make it into the final legislation. Now, based on experience with the ACA, I think Congress should revisit a public plan to compete alongside private insurers in areas of the country where competition is limited. Adding a public plan in such areas would strengthen the Marketplace approach, giving consumers more affordable options while also creating savings for the federal government.61

Last week, Hillary Clinton’s campaign website also endorsed the public option.

Continue to support a “public option”—and work to build on the Affordable Care Act to make it possible. As she did in her 2008 campaign health plan, and consistently since then, Hillary supports a “public option” to reduce costs and broaden the choices of insurance coverage for every American. To make immediate progress toward that goal, Hillary will work with interested governors, using current flexibility under the Affordable Care Act, to empower states to establish a public option choice.

When I finished writing Unprecedented in May 2013, I fully expected the ACA’s marketplaces to be unsustainable in the long term. From the Epilogue:

If the ACA continues to result in higher premiums and the consequent price controls aimed at controlling these rates nudge insurers to exit the market (insurers are already opting out of California’s exchanges), the mandate may serve as a mere pit stop on the road to single-payer health care (what progressives wanted but did not get in 2009).

I could not have anticipated this would take less than three three years! The marketplaces opened up on January 1, 2014!  And we are already seeing so many insurers exit the markets, that its supporters are backing a public option. The faustian pact the insurers made to support the ACA will become clear as the ACA unravels.

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Jul 11, 2016

No, the Supremacy Clause does not give Courts the power “strike down state laws that violate the Constitution or conflict with federal statutes

One of my biggest pet peeves in constitutional law is the conclusory statement that the Supremacy Clause, standing on its own, gives courts the power of judicial review, and the authority to invalidate state laws that conflict with the federal constitution. Justice Alito made this assertion in his dissent in Whole Women’s Health (which I only got to today):

Under the Supremacy Clause, federal courts may strike down state laws that violate the Constitution or conflict with federal statutes, Art. VI, cl. 2, but in exercising this power, federal courts must take great care.

No, it doesn’t. The Supremacy Clause provides:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Last time I checked, the word “court” appears nowhere in the Supremacy Clause. I drill my students on this point whenever someone says the Supremacy Clause gives courts this power. The text is silent about how it ought to be enforced.

This power, if it exists at all, comes from case law, not the Supremacy Clause. Ware v. Hylton (as far as I know) was the first time the Court set aside a state law, citing the Supremacy Clause. In this 1796 decision, the Court found that a Virginia statute that conflict with the Treaty of Paris could not be enforced. Granted the court didn’t actually strike down the law, but (another pet peeve), the entire notion of striking down laws is a myth. A declaration of unconstitutionality only means that the law cannot be enforced between the parties before the court. The Court doesn’t literally cut a page out of the state’s statute books.

The decision in Ware was seriatim, with separate opinions by Justices Chase, Patterson, Iredell (actually it was a reprint of his Circuit Court decision for the case), Wilson, and Cushing. (February 1796 was after the death of Chief Justice Rutledge and before the appointment of Chief Justice Ellsworth).

Justice Chase’s decision lays out the application of the supremacy clause to set aside a local law.

If doubts could exist before the establishment of the present national government, they must be entirely removed by the 6th article of the Constitution, which provides ‘That all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme law of the land; and the Judges in every State shall be bound thereby, any thing in the Constitution, or laws, of any State to the contrary notwithstanding.‘ There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made, and by their authority the Constitution of the United States was established; and they had the power to change or abolish the State Constitutions, or to make them yield to the general government, and to treaties made by their authority. A treaty cannot be the Supreme law of the land, that is of all the United States, if any act of a State Legislature can stand in its way. If the Constitution of a State (which is the fundamental law of the State, and paramount to its Legislature) must give way to a treaty, and fall before it; can it be questioned, whether the less power, an act *237 of the State Legislature, must not be prostrate? It is the declared will of the people of the United States that every treaty made, by the authority of the United States, shall be superior to the Constitution and laws of any individual State; and their will alone is to decide. If a law of a State, contrary to a treaty, is not void, but voidable only by a repeal, or nullification by a State Legislature, this certain consequence follows, that the will of a small part of the United States may controul or defeat the will of the whole. The people of America have been pleased to declare, that all treaties made before the establishment of the National Constitution, or laws of any of the States, contrary to a treaty, shall be disregarded.

Justice Cushing made a similar observation:

And, indeed, it cannot be denied; the treaty having been sanctioned, in all its parts, by the Constitution of the United States, as the supreme law of the land. Then arises the great question, upon the import of the fourth article of the treaty: And to me, the plain and obvious meaning of it, goes to nullify, ab initio, all laws, or the impediments of any law, as far as they might have been designed to impair, or impede, the creditor’s right, or remedy, against his original debtor. …

A State may make what rules it pleases; and those rules must necessarily have place within itself. But here is a treaty, the supreme law, which overrules all State laws upon the subject, to all intents and purposes; and that makes the difference.

To effect the object intended, there is no want of proper and strong language; there is no want of power, the treaty being sanctioned as the supreme law, by the constitution of the United States, which nobody pretends to deny to be paramount and controlling to all state laws, and even state constitutions, wheresoever they interfere or disagree.


The Court has made other supremacy clause errors recently in Montgomery v. Louisiana and DirecTV v. Imburgia,

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Jul 11, 2016

New from the Green Bag: SOX-Safe Fish Backpack

A wonderful take on Yates v. United States.


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