Apr 19, 2016

Prop1 Class 26 – Landlord-Tenant Relationship II

The lecture notes are here.

Here is a photograph of the historical Victoria Centre in Indianapolis.

The Victoria Center, one of Indianapolis’ preservation success stories, has been around in its current incarnation for nearly 30 years. What is actually a melding of two historic buildings (the Marrott’s Shoes Building c.1900 and the Lombard Building c.1892); the preservation of the facades and rehabilitation of the interiors were finished in 1984 by the Realty Investments Company out of Silver Springs, Maryland.

victoria-center

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Apr 19, 2016

ConLaw Class 26 – The First Amendment – Speech I

The lecture notes are here.

The First Amendment – Speech I

  • The Addition of the Bill of Rights (43).
  • Amemdment Process – Article V (817-818).
  • Amendments Outside Article V (821-822 notes 14 and 15).
  • Barron v. Baltimore (48-53).
  • The BIll of Rights (827-831).
  • The First Amendment (831-839).
  • New York Times v. Sullivan (853-861).
  • Chaplinsky v. New Hampshire (880-884).
  • Categorical exclusions (885-887).

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.

baltimore-map-1

This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.

map2

Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.

heed-rising-voices

Here is a transcript of the advertisement.

The New York Times
NEW YORK, TUESDAY, MARCH 29, 1960

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
– New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.

Sullivan-horse

Here is Sullivan talking with police officers.

sullivan2

Here is Sullivan with his family in 1962.

sullivan-family-1962

Chaplinsky v. New Hampshire

Are these fighting words?

chaplinsky-cartoon


Walter Chaplinsky, a Jehova’s Witness, would often preach in Rochester, New Hampshire’s Central Square.

chaplinksy-clipping

rochester

central-square

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Apr 18, 2016

The 1990 Family Fairness Program Was Not “Extrastatutory”

One of the biggest red herrings in the entire litigation over DAPA has been President George H.W. Bush’s 1990 Family Fairness Program. Justice Sotomayor’s question about it, barely 30 seconds into Solicitor General Keller’s argument, illustrates the common misconceptions about this program.

MR. KELLER: Thank you, Mr. Chief Justice, and may it please the Court: DAPA is an unprecedented unlawful assertion of executive power. DAPA would be one of the largest changes in immigration policy in our nation’s history ­­

JUSTICE SOTOMAYOR: How can you say that? I mean, we have the Fairness Act that happened in 1990. It granted basically the same thing, deferred action and work authorization, to 1.5 million people out of 4 million. That was a ­­ 40 percent of the immigrant population of the time was affected. Here, the best estimate is that only 35 percent are affected. So at least once before, the President has taken action that has a greater percentage effect than now. So why is it the largest? Is it the number of people?

MR. KELLER: Well, the Family Fairness Program, first of all, was done pursuant to statutory authority. It was a voluntary departure program. It was not an extra statutory deferred action program. Also, I believe only 47,000 people actually got relief there.

Keller was 100% correct. First, the 1.5 million number has been debunked over and over again–only 47,000 aliens ever actually received relief. But more importantly, the Family Fairness Program was ancillary to statutory authority. It was a short-term bridge of relief for people who were entitled to relief based on a prior statute. In contrast DAPA beneficiaries have no prospect of an adjustment of status at the end of the three year period, unless some other unrelated condition happens (such as a child becomes eligible to petition for an adjustment of status).

And don’t take my word for it. The Office of Legal Counsel expressly stated that it was based on the 1986 comprehensive immigration reform bill. As we discuss in the Cato Amicus Brief:

For a fifth precedent, the government has placed increasing weight throughout this litigation on the 1990 Family Fairness Program. However, the OLC Opinion released contemporaneously with the announcement of DAPA, demonstrated—perhaps unwittingly—that Family Fairness fits within the “bridge” construct. That opinion noted that Family Fairness “authorized granting extended voluntary departure and work authorization to the estimated 1.5 million spouses and children of aliens who had been granted legal status under the Immigration Reform and Control Act of 1986 [IRCA].” OLC Opinion at 14 (emphasis added).11

Precisely! The temporary relief afforded by Family Fairness was “ancillary to Congress’s grant of legal status to millions of undocumented persons in IRCA.” Peter Margulies, The Boundaries of Executive Discretion: Deferred Action, Unlawful Presence, and Immigration Law, 64 Am. U. L. Rev. 1183, 1217 (2015) (emphasis added). That is, “those legalized by . . . IRCA would become eligible to petition for the admission of their spouses and children through the already existing immigration system.” Cox & Rodríguez, supra, at 121 n. 39. But there is no ancillary statutory relief awaiting beneficiaries of DAPA after the three-year grant of deferred action.

11 Repeating the 1.5 million figure, the solicitor general notes that the “INS could only estimate how many people were potentially eligible and how many would actually come forward.” Brief for the Petitioners at 56, U.S. v. Texas, (No. 15- 674). The actual estimate was closer to 100,000. See Glenn Kessler, Obama’s Claim that George H.W. Bush Gave Relief to ‘40 percent’ of Undocumented Immigrants, Wash. Post (Nov. 24, 2014), http://goo.gl/gBvcEC. The origin of the 1.5-million estimate seems to be an error in congressional testimony. INS Commissioner Gene McNary himself told the Post, “I was surprised it was 1.5 million when I read that. I would take issue with that. I don’t think that’s factual.” Id. Ultimately, INS had received only 46,821 applications by October 1, 1990. Id. The next month, President Bush signed the Immigration Act of 1990, ending the temporary Family Fairness program.

Solicitor General Verrilli made a related point during his rebuttal:

Now, if I could go to the merits. Repeatedly, you’ve heard that the Family Fairness policy was pursuant to statutory authorization. That’s just flat wrong. There’s a D.C. Circuit case, and you can read Judge Silverman’s [sic] opinion in that case that we cite at page 49 in our brief which specifically describes it as extra­statutory, which is what it was.

The S.G. was referring to the D.C. Circuit’s en banc decision in Hotel & Rest. Emps. Union v. Smith, 846 F.2d 1499 (1988). (Fittingly enough for today’s arguments, the D.C. Circuit affirmed by an equally divided court, 6 to 6). Judge Silberman’s opinion (not really a concurring opinion or a dissent) was joined by Judges Buckley, Williams, and D.H. Ginsburg.

Respectfully, this case does not support the argument the Solicitor General advanced. First, the decision had nothing to do with Family Fairness. Indeed the district court opinion was from 1984–long before Family Fairness was created. Second, it had nothing to do with deferred action (the practice at issue in DAPA), or voluntary departure (the practice used in Family Fairness), but instead dealt with (yet another) form of relief known as Extended Voluntary Departure (EVD). This involved country-specific relief to Salvadoreans.

The SG’s brief (at n. 3) gives it an “accord” Bluebook symbol, which is far more tenuous than what he suggested during oral arguments.

EVD is also different from “voluntary departure” under 8 U.S.C. 1254(e) (1988 & Supp. II 1990). That statute allowed aliens “under deportation proceedings” to “depart voluntarily” “in lieu of deportation.” Ibid. EVD was accorded without regard to whether deportation proceedings were underway and enabled aliens to remain without departing. E.g., J.A. 213-215. The INS’s EVD regulations accordingly identified Section 1103(a) as the authority. See 43 Fed. Reg. 29,258 (July 10, 1978); accord Hotel & Rest. Emps. Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 1988) (en banc) (Mikva, J.); id. at 519 (Silberman, J.) (“extra-statutory”).

In no respect does this case demonstrate that Respondent’s argument about Family Fairness was “flat wrong.” (I was struck by the Solicitor General’s tone on this point, as he is usually far more charitable when opposing counsel errs–which did not happen here).

Here is how Judge Mikva sets out the facts in the case:

The Attorney General enjoys broad latitude in enforcing the immigration laws. See 8 U.S.C. § 1103(a) (authorizing Attorney General to establish such regulations and perform such other acts as he deems necessary to carry out his authority). The decision to grant or to withhold EVD falls within this broad mandate. On several occasions in the past, the Attorney General has granted EVD by temporarily suspending enforcement of the Act for a particular group of aliens. The Attorney General has determined that circumstances do not warrant granting EVD to Salvadoran aliens. This assessment was based upon: (a) the number of Salvadoran aliens already in this country; (b) the current crisis in which our country is experiencing a “floodtide’ of illegal immigrants; (c) the prospect of inducing further immigration by Salvadorans; (d) the effect of illegal immigration on the United States’ finite law enforcement, social services, and economic resources, and (e) the availability of statutory avenues of relief, including application for asylum. These factors correspond to the Secretary of State’s description of the EVD process: the State Department “invariably considers a number of factors in deciding whether to recommend the granting of EVD in any particular case, and the granting of EVD may meet different objectives in different cases.” Letter from George P. Shultz to William French Smith (June 23, 1983), J.A. tab 17, at 1.

Judge Mikvah does not describe the policy as “extrastatutory.” Judge Silberman’s opinion does, in his discussion that the actions were not subject to review. Here is the relevant passage:

The Attorney General has declined to grant extended voluntary departure status to Salvadoran nationals. See Letter from Attorney General William French Smith to Congressman Lawrence J. Smith (July 19, 1983), reprinted in Joint Appendix tab 18. Appellants ask us to review the Attorney General’s decision to determine whether he has departed from a settled pattern of basing EVD decisions on humanitarian factors.

We need not inquire into the array of factors the Attorney General considered in refusing to confer EVD status, for we are without power to order modification of that decision. The extrastatutory decision to withhold enforcement is an exercise of the Executive Branch’s discretion to decide whether to prosecute a case that flows from the Constitution’s admonition that that Branch “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3; see also United States v. Batchelder, 442 U.S. 114, 123–24, 99 S.Ct. 2198, 2203–04, 60 L.Ed.2d 755 (1979); United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974). In Heckler v. Chaney, 470 U.S. 821, 828–33, 105 S.Ct. 1649, 1654–57, 84 L.Ed.2d 714 (1985), the Supreme Court held that, absent statutory *1520 **61 language that would provide the reviewing court with a “meaningful standard against which to judge the agency’s exercise of discretion,” id. at 830, 105 S.Ct. at 1655, the decision to refuse to take enforcement action is presumed unreviewable under 5 U.S.C. § 701(a)(2) as having been committed to the agency’s discretion.16

Only when read in isolation does this passage support the SG’s assumption that EVD was “extrastatutory”–again, EVD is different than voluntary departure and deferred action. But if you keep reading two paragraphs later, the scope of Judge Silberman’s comment becomes clear: This case involved the President’s Article II powers over foreign affairs, which the courts are especially not in a position to review:

Prosecutorial discretion with respect to EVD is particularly insulated from review because it involves considerations of foreign relations. Control of the country’s policy toward aliens is “inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 312, 94 L.Ed. 317 (1950); see also Harisiades v. Shaughnessy, 342 U.S. 580, 588–90, 72 S.Ct. 512, 518–19, 96 L.Ed. 586 (1952). “Matters relating ‘to the conduct of foreign relations … are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.’ ” Regan v. Wald, 468 U.S. 222, 242, 104 S.Ct. 3026, 3038, 82 L.Ed.2d 171 (1984) (quoting Harisiades, 342 U.S. at 589, 72 S.Ct. at 519).17 This court certainly could not undertake to review a decision with such a significant foreign policy component in the absence of an extraordinarily precise statutory standard against which to measure the conduct in question. See Mathews v. Diaz, 426 U.S. 67, 81–82, 96 S.Ct. 1883, 1892–93, 48 L.Ed.2d 478 (1976) (“The reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” (footnote omitted)). Because there is none, and for the other reasons set forth in this opinion, we would affirm the judgment of the district court.

I think the most reasonable interpretation of Judge Silberman’s opinion is that the “extrastatutory” refers to the President’s inherent powers over foreign affairs, which are not subject to review.  Judge Silberman was referring to the President’s power to grant relief to a specific group (Salvadoreans) based on a determination from the Secretary of State concerning the national interest of the United States. In any event, a dictum in a non-precedential opinion attached to an equally-divided en banc court is entitled to very little, if any weight.

President Obama has never relied on his Article II powers over foreign affairs to justify DAPA. Indeed, the policy applies irrespective of what nation an alien has citizenship with. This is what differentiates other exercises of prosecutorial discretion, such as to Chinese aliens who would have been affected by the aftermath Tiananmen Square Massacre.

Erin Murphy, representing the House of Representatives, answered Justice Sotomayor’s questions along these lines:

JUSTICE SOTOMAYOR: So your position is that in 1989, when George H. W. Bush granted deferred enforced departure for Chinese residents after the Tiananmen Square situation, that he acted illegally?

MS. MURPHY: No. Because that program was justified on a different power than the power here. It was deferred ­­ that ­­ the deferred enforced departure in Article II ­­

JUSTICE SOTOMAYOR: But there was no statutory authority for him to do that.

MS. MURPHY: It is a power that the Executive has always grounded in Article II foreign affairs power. A nationality, country­based concern power.

Texas Solicitor General Scott Keller made a similar comment in response to a question from Justice Sotomayor about Salvadorians:

JUSTICE SOTOMAYOR: Well, [Congress] has­­ it has acquiesced to larger numbers of Salvadorians, Guatemalans, Hondurans, Haitians, Chinese, the TNU visa applications, those numbers have been much larger than the limited numbers you’re quoting right now.

MR. KELLER: And those programs would have been under temporary protective status; humanitarian parole, deferred enforced departure, which is justified­­ and has been, at least, under the President’s Article II power, and there’s no suggestion that ­­ here DAPA is unprecedented because this is a extra statutory deferred action program that is not bridging lawful status. The aliens do not have a preexisting status, and they don’t have an [imminent] status.

 

This was one of the more surprising elements of arguments that baffled many of us in the Lawyer’s Lounge afterwards.

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Apr 18, 2016

Media Roundup for U.S. v. Texas

Today was a fairly hectic day after oral arguments. I didn’t leave the Court until about 11:50, and didn’t get back to Cato until shortly after noon. I had barely an hour to prepare for the Federalist Society call at 1:00, amidst fielding a few calls from reporters. Here are the published media sources so far:

  • Guest on To The Point–Undocumented Parents and the Supreme Court, National Public Radio to discuss U.S. v. Texas (April 18, 2016).
  • Federalist Society Podcast on U.S. v. Texas (April 18, 2016).

Opponents of the president’s plan similarly read positive predictions from the justices’ questioning but, if anything, it seemed clear that the court was conflicted.

“The court is quite divided,” said Josh Blackman, a constitutional law professor at South Texas College of Law who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington D.C. “I think there’s a distinct possibility that this case goes to a 4-4.”

“Regardless what the court does here, the next election will really decide the fate of this immigration policy,” said Josh Blackman, a law professor at the South Texas College of Law in Houston, who filed a brief in the case supporting the challenge to the immigration actions. “It’s not that the case won’t matter, but the outcome of this policy very much hangs in the election.”

As this year’s topsy-turvy presidential election has proved, predictions are difficult at best. Much depends as well on whether Republicans can maintain control of the House and Senate, and how strong majorities are in each chamber.

– See more at: http://www.rollcall.com/news/policy/supreme-courts-take-immigration-raises-election-stakes#sthash.FtqOh4kj.dpuf

Roberts seemed to ignore the government’s argument that Texas has no standing to sue. Instead, he was more concerned about whether Obama has the right to push a policy that Congress should have a hand in.

“The fault here lies with the president. This case could have been appealed to the Supreme Court in July of 2015,” said Josh Blackman, a constitutional law professor at South Texas College of Law. “He declined to do that, and that ensured that this will become an election issue.”

And that’s what it’s become, just like the question of whether Obama can nominate a justice to replace Scalia. If Hillary Clinton wins, she’ll likely try to uphold the executive action on immigration and continue to fight through the courts.

If a Republican wins, it will be wiped from the books.

The Supreme Court, still hobbled with eight justices, seems poised to slam the brakes on the order by doing nothing at all.

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Apr 18, 2016

From the Court House Steps – U.S.v. Texas Stating at 1

Dial 888-752-3232 to Participate

Federalism & Separation of Powers Practice Group
Monday, April 18, 2016 | 1:00 p.m. EDT   

 
Prof. Josh Blackman
Assistant Professor of Law
South Texas College of Law
The United States Supreme Court will hear oral arguments in United States v. Texas today, which will examine the constitutionality of the President’s executive actions on immigration. In addition to complex questions about standing and administrative law, the Court has added a Take Care Clause question to the argument. Our expert will attend the oral arguments and offer a summary as well as his analysis.

Dial 888-752-3232 to Participate

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Apr 17, 2016

Schedule for Tomorrow and Media Roundup for U.S. v. Texas

I will be in the Court tomorrow for oral arguments in U.S. v. Texas. Given that there is at least one opinion to be handed down, and the Court expanded oral arguments for 90 minutes, I may not actually get out of the Court until 11:45 or maybe even 12:00.

At 1:00, I will be participating in a Federalist Society conference call discussing the arguments. The call-in information will be announced tomorrow. At 2:00, I will be a guest on the NPR’s “To the Point.” I am tentatively slated to appear on the PBS News Hour at 6:00, although TV is always fickle, and is subject to change at the last moment.

Here is a roundup of various pre-argument media hits I’ve had in the past few days.

Quoted in Obama amnesty Supreme Court case to test limits of presidential power, The Washington Times (April 17, 2016).

“In 225 years, the Supreme Court has never had occasion to ask the president whether he has reneged on his oath to take care that the laws are faithfully executed. However, with pens-and-phones replacing checks-and-balances, the Supreme Court is now poised to break new constitutional ground in order to preserve our embattled separation of powers,” said Josh Blackman, associate professor at the South Texas College of Law, who has followed the case from the start and filed amicus briefs opposing Mr. Obama’s claim of powers.

At issue is the Take Care Clause, which is what scholars call the Constitution’s charge to presidents to “take care that the laws be faithfully executed.” …

Lower courts sided with the states and halted the amnesty on statutory grounds, and never reached the constitutional questions. But the justices, in what Mr. Blackman said was a first, asked both sides to also file briefs on the Take Care Clause.

Quoted in U.S. Supreme Court to hear arguments in immigration case, The Oklahoman (April 17, 2016).

Josh Blackman, a legal expert following the case, said the administration’s best chance of winning may be on the question of the states’ “standing” to sue.

The vacancy created by the death of Justice Antonin Scalia in February could lead to a 4-4 deadlock in the case. If that happens, Blackman said, the federal appeals court order blocking the president’s policy change would remain in effect.

Federalist Society Video explaining U.S. v. Texas (April 17, 2016).

Quoted in “Obama immigration actions face critical day at high court,” The Hill (April 16, 2016).

If the short-handed court splits 4-4, the lower court’s ruling would be left in place, which would virtually guarantee the programs will not go into place before Obama leaves office.

“The 500-pound gorilla is the empty chair of Justice [Antonin] Scalia,” said Josh Blackman, a constitutional law professor at the South Texas College of Law, who helped file a legal brief backing the lawsuit against Obama’s programs.

“It has a significant impact on the outcome of the case. Because we’re down to only eight justices, there is a distinct possibility of a tie.”

While Kennedy ruled favorably for Obama in the Arizona case, they are hopeful he will reprise his role in the 2012 Obamacare challenge, when he scolded the 5-4 majority that upheld the law for “a vast judicial overreaching.”

But they have also been scarred by the experience of seeing the Roberts court deliver victories for the president on his healthcare law and immigration in recent years.

“John Roberts breaks my heart every single June,” said Blackman. “Maybe this will be the way he breaks my heart this year. But I don’t know.”

Quoted in Immigration Case Injects Supreme Court Into Election-Year Storm, Bloomberg Politics (April 16, 2016).

People who received deferred-deportation status under Obama might be especially vulnerable because they would have supplied identifying information to the government. For that reason, advocates on both sides say few people might apply for deferred-deportation status until after the election.

The policy “really hinges on the outcome of the next election,” said Josh Blackman, a professor at the South Texas College of Law, who filed a brief backing Texas.

Quoted in Supreme Court to hear Texas’ challenge to DAPA, The Houston Chronicle (April 17, 2016).

Josh Blackman, a constitutional law professor at South Texas College of Law, argues that forcing a state to change its law so that it doesn’t suffer financial loss, however small and regardless of whether it can later be recouped, is enough to give it a claim at the high court.

“In my opinion, Texas has the silver bullet,” said Blackman, who filed an amicus brief against Obama’s plan on behalf of the Cato Institute, a libertarian think tank in Washington, D.C.

Tuesday morning, I will be in class at 9:30 AM.

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Apr 17, 2016

Texas Students Win the National Harlan Institute – ConSource Virtual Supreme Court Competition; Oregon Team Places Second.

On April 13, 2016, The Harlan Institute and The Constitutional Sources Project (ConSource) held the championship round of the Fourth Annual Harlan Institute – ConSource Virtual Supreme Court Competition as part of the National Constitution Center’s annual Freedom Day Celebration. The Virtual Supreme Court Competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year’s competition focused on Fisher v. University of Texas at Austin (II), exploring whether race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution.

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Kelsey Talbot and Lauren Anderson from Lake Oswego High School in Lake Oswego, Oregon, represented the petitioner, Abigail Fisher.

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Michael Mireles and Tanya Reyna from IDEA Quest College Preparatory in Edinburg, Texas, represented the respondent, the University of Texas at Austin.

quest

To reach the championship round at the National Constitution Center, these outstanding students had to compete against dozens of teams from all corners of the continental United States. Talbot and Anderson and Mireles and Reyna not only submitted the best-written appellate briefs, but also proved to be the most able oral advocates in the preliminary oral argument rounds.

Their skills were put to the test during the championship round where, during oral argument in front of a live panel of distinguished judges, they students had to respond to rapid fire and complex legal questions. The competition was judged by The Honorable Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit; Professor Kermit Roosevelt, University of Pennsylvania School of Law; Mr. Howard Bashman, Appellate Attorney and Founder of the How Appealing Blog; Julie Silverbrook, Executive Director, ConSource; Josh Blackman, President, Harlan Institute; Matthew Rohn, Franklin and Marshall College debate champion; and, Miriam Pierson, Swarthmore College debate champion.

The competition was fierce, but Mireles and Reyna prevailed in the end and were named the champions of the Virtual Supreme Court Competition.

University of Pennsylvania Law Professor Kermit Roosevelt, who served on the distinguished panel of judges for this year’s competition, said of the student competitors, “I was enormously impressed with the passion and knowledge the students demonstrated. Opportunities like this one—and students who take advantage of them—make me more optimistic about the future of our republic.”

Julie Silverbrook, Executive Director of ConSource, said the students “represent the very best of America.  They are informed, engaged and passionate. I have no doubt that all four of our finalists will go on to achieve great things.”

The national finalists, Michael Mireles and Tanya Reyna, both juniors at IDEA Quest College Preparatory in Texas, are shining stars in their community. Mireles is the president for the Junior Statesmen of America chapter, the vice president of the Future Business Leaders of America, and a member of the Bezos Scholar Program. Reyna is the president of the Student Council, director of debate for Junior Statesmen of America, point guard for her school’s basketball team, and a regional qualify for track and cross country.

Gerrit Koepping said of his students, who placed second in this year’s national competition, “even though this is the second semester of their senior year, my students were enthusiastic to participate in the competition. They were drawn to the challenge of arguing one of the most controversial cases before the Supreme Court this year. As a teacher, I always embrace any opportunity to have my students engage in legal and philosophical issues with the outside community. This competition allows the students to contribute their own thoughts to the larger national debate.”

Kelsey Talbot said of the competition, and her impressive second place finish, “it was an amazing experience and we are beyond grateful for the chance to compete at this level.” Tanya Reyna shared a heartfelt message after being named national champion, along with her partner Michael Mireles, “This was certainly the experience of a lifetime, one that I will never forget. Being able to meet individuals … so tenacious in the subject of legal matters is an attribution my community is relatively deprived of, making presenting in front of a panel of judges as shrewd as those chosen evermore heartfelt.”

Reyna and Mireles, along with their coaches Marcos Silva and Molly Lane, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2016. Kelsey Talbot and Lauren Anderson will each receive iPad Minis.

Josh Blackman, reflecting on this year’s competition said, “The Virtual Supreme Court Competition is the crowning achievement of a four-year project started by the Harlan Institute and ConSource. We are so proud to have partnered with the National Constitution Center to host our competition on Freedom Day, and hope to make this an annual tradition.”

If you are interested in registering your students for next year’s competition, please email [email protected] or [email protected] to get on the mailing list for next year’s competition, which will be announced in the fall.

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Apr 17, 2016

Video Explainer of U.S. v. Texas

The Federalist Society recorded this snazzy explanatory video, explaining the facts and arguments in U.S. v. Texas.

In November 2014, President Obama announced an executive action known Deferred Action for Parents of Americans and Lawful Permanent Records program, or DAPA for short.  Texas and 26 other states challenged DAPA in court, asserting that it violated provisions of administrative law, and the President’s duty to take care that the laws be faithfully executed. The district court agreed, and granted a preliminary injunction halting DAPA. The 5th Circuit Court of Appeals affirmed, and now the case is before the Supreme Court.

On Monday, April 18, the Supreme Court will hear oral arguments in the case. In this video, I explain the three primary issues the Court will confront. First, whether Texas suffered a sufficient injury to warrant standing. Second, whether DAPA complies with the procedural and substantive requirements of the Administrative Procedures Act. Third, whether DAPA violates the President’s duty to take care that the laws are faithfully executed.

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Apr 15, 2016

Justice Willett on the Rule of Law

Contrary to what you may learn on Twitter, Justice Willett is capable of thought much deeper than humorous tweets about the three Bs: bacon, Blue Bell, and Baylor. His concurring decision in In re State of Texas is a passionate defense of procedural regularity, even in the most controversial of cases involving same-sex marriage.

The facts of the case are straightforward, and disturbing. Texas law requires a judge to notify the Attorney General before declaring a law unconstitutional. A judge in Travis County (Austin) ignored this law. The judge declared the state’s same-sex marriage amendment unconstitutional, then a couple was immediately married, after which the case was non-suited as moot to prevent an appeal. This chicanery makes the procedural shenanigans in the Federal Courts look tame. The Attorney General, after learning about the case, sought mandamus.

Willett agrees that the case is moot, but that doesn’t give the Travis County judge a free pass:

In light of Obergefell, the case is entirely moot, so the Supreme Court of Texas unanimously dismissed the case as moot. However, Justice Willett concurred in judgment to explain the close connection between procedure and the rule of law. I write today not to belabor a societal debate but to underscore a legal point presumably beyond debate: Laws matter. When John Adams enshrined the ideal of “a government of laws and not of men” into the 1780 Massachusetts Constitution, he upended things, declaring that citizens should be governed by clear laws consistently applied, not personal whims.2 Adams was echoing Aristotle, who two millennia earlier wrote, “law should govern.”3 The Rule of Law is one of America’s—and Texas’s—foundational presumptions. In this case, regrettably, Texas law was frustrated rather than followed.

Unfortunately, rancorous cultural disputes seem to induce jugglery, by lawyers and judges alike. In 2014, for example, a Texas court of appeals rebuked a trial court for doing the very thing that happened here—declaring Texas marriage law unconstitutional without first alerting the attorney general.10 But it is precisely in divisive, consequential cases when by-the-book fastidiousness by courts is most vital, to blunt even the appearance of evasive corner-cutting or politicized judging.

Willett explains that courts are not free to waive procedural safeguards.

Despite the constitutional stakes (or perhaps because of them), the trial court failed to comply with the Legislature’s unqualified command that the State’s chief legal officer be afforded the opportunity to defend the constitutionality of Texas law.9 When violations of law slip uncorrected through the cracks of judicial review (as when a case is dismissed as moot), it may seem that the beneficiaries of such violations receive a free pass. The pass is not free. It comes at the expense of the Rule of Law. Here, the Legislature’s notice mandate is unsubtle and unequivocal, as was the trial court’s failure to follow it.

These principles hold true, regardless of what judges view as the “right side of history.”

This was an invalid invalidation. No matter the cause du jour, no matter the perceived exigencies, Texas law forbids the striking down of Texas law without first respecting the attorney general’s statutory opportunity—and constitutional duty—to defend it. Every Texas jurist swears allegiance to the Rule of Law, vowing to “preserve, protect, and defend the Constitution and laws of the United States and of this State, so help me God.”11 That solemn oath comes first—always— not our ideology, not our legacy, and not our desire to be fêted as on the “right side of history.”

My focus today is legal, not cultural. In a judicial system that demands no-favorites adherence to clear and predictable legal rules, furtiveness (to tilt the playing field) and faithfulness (to keep it level) cannot coexist. Faithfully applying the law cannot mean short-circuiting one Texas law in order to strike down another.

A law may be unfashionable. It may even be unconstitutional. But it cannot be undefended.

I wish more judges would take this lesson to heart. We can all disagree about substance, but procedure is the glue that holds together the rule of law.

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Apr 15, 2016

SG: “Lawful Presence” is really “Tolerated Presence”

Since its inception, DAPA’s achilles heel has been a single sentence in Sec. Johnson’s memorandum announcing the executive action:

Deferred action does not confer any form of legal status in this country, much less citizenship; it simply means that, for a specified period of time, an individual is permitted to be lawfully present in the United States.

A key element of Texas’s substantive-reasonableness, and Take-Care-Clause arguments, centers on the emphasized portion: “Lawfully present.” Texas argues that DAPA is not merely a grant of deferred action and work authorization. It goes beyond that to deem an alien who is not lawfully present, as lawfully present. Or stated differently, DAPA makes legal what is otherwise illegal. Texas explains this at p. 39 of their merits brief:

DAPA’s granting of lawful presence and eligibility for valuable work authorization and benefits forecloses the Executive’s reliance on Heckler.29 As defendants’ counsel acknowledged below, DAPA “works in a way that’s different than . . . prosecutorial discretion” be- cause it grants inducements “for people to come out and identify themselves.” J.A. 716.

As I noted last April, Judge Hanen seized on this concession from the DOJ Federal Programs attorney–which I suspect the SG wishes he could take back.

The Government has acknowledged that its strategy with DAPA is to provide certain benefits as an incentive for individuals to apply for DAPA. [Hr’g Tr. 30, Mar. 19, 2015]. It also confirmed, through counsel, that offering these incentives is not an act of prosecutorial discretion: “I think an incentive for this pro – – the reason why deferred action in the department’s judgment works in a way that’s different than the prosecutorial discretion is it does provide an incentive for people to come out and identify themselves.” [Id. (emphasis added)].

(I elaborated on this point in National Review.).

DAPA was always about far more than prosecutorial discretion and granting of deferred action–the government has conceded as much.  As Sec. Johnson’s memo stated, it was about granting lawful presence.

Since making this concession, the government has tried to run away from this position, and minimize the significance of “lawful presence.” Indeed, in the SG’s merits brief, the phrase “lawful presence” appears (by my count) once.

That fundamentally misunderstands the term “law- ful presence.” Insofar as deferred action itself is concerned, “lawful presence” simply describes the result of notifying an alien that DHS has made a non- binding decision to forbear from pursuing his removal for a period of time: He may remain present in the United States without being removed, for so long as DHS continues to forbear. p. 37.

In the reply brief, the SG further expands on their argument. First, they explain that if Sec. Johnson had deleted the provision about “lawful presence” from the memo, it would make no difference:

That sentence is purely descriptive and has no operative, legal effect. Ibid. Deleting it would not change the Guidance at all.

Yes, but that sentence is in there–and it was not in the DACA memorandum. Why was it added? What does it add to the situation? And the government lawyer below made clear that DAPA–with its grant of lawful presence–operates in a different fashion than traditional prosecutorial discretion and deferred action.

Second, the SG concedes that it should have probably used different language–rather than “lawfully present,” the Secretary should have said “tolerated presence.”

By contrast, mere “lawful presence” occurs when the Executive “openly tolerate[s] an undocumented alien’s continued presence in the United States for a fixed period (subject to revocation at the agency’s discretion),” notwithstanding that the alien lacks lawful status and is present in violation of law. J.A. 76; see U.S. Br. 38-39; Unlawful Presence Guid- ance 9-11. “Lawful presence” thus might be better called “tolerated presence.” 

I have been following this litigation pretty closely from the outset, and I don’t recall ever seeing the phrase “tolerated presence” at any stage. This is a new trick the SG held in reserve for the reply brief. Is the Solicitor General pulling for yet another saving construction? If we disregard the actual text of the policy, and replace it with a word that fits the government’s argument, then poof, it is valid! May as well make this an annual tradition at First Street. Look for SG Verrilli to use the word “tolerated” a lot at oral arguments, and push back against lawful presence. At a minimum, I think the SG’s statement here suggests that this a vulnerability, which the government is trying to shore up.

Offering another defense of “lawful presence” is Marty Lederman, who takes a page out of the SG’s toolkit. Marty writes that “lawful presence” is actually a term of art based on a 1996 regulation. (I am having flashbacks to King v. Burwell writing this). Here is a segment of Marty’s careful argument, that I encourage you to read carefully:

But how did we get here, to a point of such fundamental confusion?  Why does the DAPA Guidance say that a DAPA alien “is permitted to be lawfully present in the United States,” if in fact she is not permitted to be here?   And if, as the government now concedes, “‘[l]awful presence’ . . . might be better called ‘tolerated presence,’” why didn’t DHS simply refer to it as “tolerated presence” in the first place?

The source of the confusion is yet another longstanding regulation—this one “only” two decades old, having been promulgated in 1996.  That regulation deals exclusively with the conferral of certain federal benefits that are peripheral to the dispute in this case.

Regardless of the substantive merits of the 1996 regulation, the important point for present purposes is simply that that discrete Social Security/Medciare/Railroad benefits rule is the source of DHS’s decision to describe DAPA aliens, and other deferred-action and deferred-enforced-departure aliens, as “lawfully present” in the United States—despite the fact that their presence is not lawful.  The terms of the 1996 regulation in effect establish “lawful presence” as a de facto term of art, applicable only for purposes of determining which aliens are entitled to receive Social Security, Medicare and Railroad Retirement benefits.  As the original Federal Register notice specified, “[t]his definition is made solely for the purpose of determining an alien’s eligibility for payment of title II social security benefits, as required under section 401(b)(2) of the Personal Responsibility Act, and is not intended to confer any immigration status or benefit under the Immigration and Nationality Act.”[2]

As best as I can recall, I’ve never seen this argument about the 1996 regulation before–not in the OLC memo supporting DAPA’s legality, nor in any of the District, Circuit, or Supreme Court briefing. (If I’m wrong, please correct me). I’ll try to dig into the regulation before arguments on Monday.

So if “lawful presence” trips up the government, they can always fall back on a saving construction by rewriting the actual text of the policy (“lawful” becomes “tolerated”), or the Court can deem lawful presence a “term of art” based on a 1996 regulation that was never raised at any point during the litigation. We’ve been here before.

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Apr 15, 2016

The 5-Year Empty Seat

During a press briefing yesterday, White House Press Secretary suggested that in light of decision by Senate Republicans not to afford Chief Judge Garland a hearing and vote, Senate Democrats would be “justified” in blocking a Republican President’s nomination for the full four-year term.

Mr. Earnest: [W]hat’s to stop Democrats who are in charge of the Senate when a Republican is in office from saying, well, we’re just going to wait four years to fill the vacancy.  There’s no material difference in that argument.  That would represent a breakdown of the process.

Q    Would they do that?  I mean, you’re saying that it seems like — that they would do that.

MR. EARNEST:  They would be justified in doing it based on what Republicans have done so far.

In effect, if a Republican wins the White House in 2017, so long as Senate Democrats hold the gavel, Justice Scalia’s seat will remain empty. So long as the Senate and Presidency are not controlled by the same party, no nominations will be possible.

Things are proceeding as I anticipated some time ago.

Between October 2014 and January 2015, I gave four presentations on selecting the next Supreme Court Justice in New Jersey, ChicagoBerkeley, and at Georgia State. In each presentation, I made a very similar point–in the event that the President and Senate are controlled by different parties, there is a distinct possibility that a seat on the Court remains empty for an extended period of time. To illustrate this dynamic, in my presentation I used a picture of Clint Eastwood from the 2012 Republican National Convention to illustrate the empty seat–I called it the Eastwood effect. This point was made well before the Scalia vacancy.

eastwood

I considered a hypothetical with a SCOTUS vacancy in 2017, a Republican President seeks to make a nomination, and the Democratic-controlled Senate blocks any nominees. (I didn’t quite consider denying the person a hearing–rather I thought the candidate would simply be voted down). I suggested that a Republican President–if the Democrats refuse to even hold a vote in 2017–could roll the dice, and hope the Republicans pick up the Senate in 2018. Then, the Senate Republicans could eliminate the filibuster and confirm the President’s nominee of choice. This would raise the distinct possibility of a seat remaining empty for one or more years, but I predicted this was a likely consequence of the escalation in the nomination wars following Sen. Reid’s nuclear option.

From September through February, I was planning on writing an article on the empty-seat scenario, and focus on how state courts handle them–see New Jersey–but unfortunately never got around to it. (There are far more things that I want to write, but never have time to complete).

All of my discussions from these four events are recorded, and articulate my thoughts on this–well before the passage of Justice Scalia made this a reality and not a hypothetical.

My remarks from the Chicago Federalist Society Lawyer’s Chapter on 10/15/15 (fast-forward to 23:19):

 

From the New Jersey Federalist Society Lawyer’s Chapter on 10/6/15 (fast-forward to 21:30):

From the Berkeley Federalist Society Chapter at 13:45 (in an event featuring Ed Whelan):

And finally, at the Georgia State Federalist Society, with the inestimable Eric Segall, (starting at 23:20).

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Apr 15, 2016

Can States that Favor DAPA Challenge Judge Hanen’s Injunction If U.S. v. Texas Ties 4-4?

Leading up to oral arguments in U.S. v. Texas, several reporters have asked me whether, in the event of a 4-4 affirmance, cities and states that support DAPA could try to challenge Judge Hanen’s injunction in more friendly circuits. I’ll admit, I was somewhat gobsmacked when I heard the question repeated, as this told me that some groups are telling the media that additional litigation awaits if the Supreme Court cannot reach a majority opinion.

Richard Wolf’s story in USA Today offers some more details on this new meme:

A tie vote would hand a victory to Texas and 25 other states that have successfully blocked the program in lower courts, but it could unleash new challenges. States and cities who favor the program could try to fight the nationwide injunction imposed by a lone judge on the Mexican border and upheld by the nation’s most conservative federal appeals court.

“Basically, you’d have a judicial mess,” says David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association. “You’d have absolute chaos in the courts.”

If the court doesn’t rule for Obama, it likely will emerge tied or seek to rehear the case when it’s back to full strength — something that could take a year or more. A tie vote would leave the injunction against the program in place, possibly emboldening states to mount more court challenges to federal actions.

States and cities that favor the deferred action program could try to mount their own lawsuits, arguing they were deprived of a program that would help local economies and residents. California, Washington state, New York City and others made those claims in briefs supporting the Obama administration.

“The deferred action programs will contribute over $800 million in additional economic benefits to state and local governments annually,” a brief submitted by New York City and other local governments says. The city itself estimates it loses $100,000 a day in tax revenue while undocumented workers remain in the shadows.

“The injunction entered below is preventing our states and millions of our residents from receiving the substantial economic, social welfare, and public safety benefits that will flow from the president’s 2014 immigration guidance,” Washington and 15 other states argue in their Supreme Court brief.

Those municipalities or individuals who stand to benefit from the program could go to court. “Probably a lot of creative litigation would be considered,” says Marielena Hincapié, executive director of the National Immigration Law Center.

When I read this, I thought “Huh?” Let me try to unpack this.

First, I don’t see how any cities or states could claim a constitutional injury for Article III standing. A number of states submitted briefs to the 5th Circuit and SCOTUS arguing that because the potential-DAPA beneficiaries would be able to legally work, and pay taxes, the states would receive an economic benefits. As a matter of policy this is (as far as I know) absolutely correct. USA Today alludes to this theory of standing to explain how DAPA-friendly states may get into Court. But the states introduced this evidence not to establish standing in their own right, but for purposes of contesting standing: any cost to Texas in terms of providing drivers licenses to DAPA beneficiaries would be offset by the additional revenues generated by legally-employed aliens. This argument is flatly contrary to the Court’s standing jurisprudence. I discussed this point back in January 2015 after Washington state filed the amicus brief making this point.

The government offered a modified theory: if DAPA beneficiaries receive driver’s licenses, they will register cars and the like, and pay money back to the states in the form of other fees, thus offsetting the cost.

The 5th Circuit firmly rejected the offset theory in its opinion:

Instead of disputing those figures, the United States claims that the costs would be offset by other benefits to the state. It theorizes that, because DAPA beneficiaries would be eligible for licenses, they would register their vehicles, generating income for the state, and buy auto insurance, reducing the expenses associated with uninsured motorists. The government suggests employment authorization would lead to increased tax revenue and decreased reliance on social services.

Even if the government is correct, that does not negate Texas’s injury, because we consider only those offsetting benefits that are of the same type and arise from the same transaction as the costs.59 “Once injury is shown, no attempt is made to ask whether the injury is outweighed by benefits the plain- tiff has enjoyed from the relationship with the defendant. Standing is recog- nized to complain that some particular aspect of the relationship is unlawful and has caused injury.”60 “Our standing analysis is not an accounting exercise . . . .”61

Second, even if there was standing, who would the states sue? The Department of Homeland Security? Sec. Johnson? They agree that the policy is lawful. So would there be some sort of default judgment after a non-adversarial hearing?

Third, an even bigger problem is, what would the cause of action even be? If the government is failing to discharge a statutory duty, there are causes of action to compel those results. If the government is failing to follow a federal regulation, there are causes of action to compel that. (Think of the underlying facts in Massachusetts v. EPA). But–as the government claims–DAPA is nothing more than a routine guidance document to prioritize enforcement resources, and does not confer any substantive rights. (I don’t accept that characterization, but the states supporting DAPA do). If the executive branch doesn’t follow through on a “true” guidance document, or withholds purely discretionary benefits (such as deferred action or work authorization), there is no cause of action to compel that the government take such action.

I seriously don’t understand what sort of “creative litigation” they have in mind.

Steve Legomsky, who has been a strong defender of DAPA, and with whom I’ve testified before Congress, told USA Today that there really isn’t a legal leg to stand on here:

Stephen Legomsky, professor emeritus at Washington University School of Law and an immigration expert, says courts might be precluded from considering such challenges, based only on the potential impact of a program.

“Other states and localities who favor this program would be right to feel that they have been treated unjustly,” Legomsky says, but “they would face a tough legal hurdle.”

Maybe these groups are telling their members that these sorts of lawsuits can be filed in order to gin up support and keep hope alive? I am doubtful. The true blame here lies with the Obama DOJ for failing to appeal the denial of a stay in June 2015. Had they done so, the case would ahve been already resolved. I explained the timing in the Cato brief:

Had the government requested emergency relief in June 2015—with the same factual record—this Court would likely have already resolved the underlying legal issues. See, e.g., Perry v. Perez, 132 S.Ct. 934 (2012) (stay application filed 11/28/11, granted 12/9/11; case argued 1/9/12, decided 1/20/12). Had the government prevailed, DAPA would already be in effect. By not seeking a stay, the earliest DAPA could go into effect would be June 2016, “just as the presidential campaign heats up.” Immigration Ruling Stymies Obama and Those Seeking His Job,N.Y. Times (May 28, 2015), http://goo.gl/AVI7fb. The government’s dilatory approach suggests that DAPA’s immediate implementation is not as important as the solicitor general now suggests. The Court should not prematurely resolve a separation- of-powers dispute when the government did not even deem it worthwhile to seek a stay.

The failure to do so ensured that this issue would be decided so close to the election, and that Judge Hanen’s injunction could stand for a year or longer.

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Apr 15, 2016

Audio: STCL Federalist Society Panel on Free Speech on Campus

On Thursday, April 14, the South Texas College of Law Federalist Society Chapter hosted an event on free speech on campus. The invited speaker was Azhar Majeed from FIRE. I provided commentary, along with my colleague Randy Kelso.  Here is the audio of the event, which raises a number of important issues, including how state bars and law firms can censor ideas that fall outside political correct norms. My comment begins at 28:15.

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Apr 14, 2016

Prop1 Class 25 – Landlord-Tenant Relationships I

The lecture notes are here.

This site explains detail the eviction process in Texas. Here is the section of the Texas code governing evictions and forcible entry. In Texas, forcible entry without resort to judicial process is illegal. In other words, no self-help.

Sec. 24.001. FORCIBLE ENTRY AND DETAINER. (a) A person commits a forcible entry and detainer if the person enters the real property of another without legal authority or by force and refuses to surrender possession on demand. (b) For the purposes of this chapter, a forcible entry is: (1) an entry without the consent of the person in actual possession of the property; (2) an entry without the consent of a tenant at will or by sufferance; or (3) an entry without the consent of a person who acquired possession by forcible entry.

Here is the process governing evictions:

Sec. 24.005.  NOTICE TO VACATE PRIOR TO FILING EVICTION SUIT. (a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. A landlord who files a forcible detainer suit on grounds that the tenant is holding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.001. … (d)  In all situations in which the entry by the occupant was a forcible entry under Section 24.001, the person entitled to possession must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit. The notice to vacate under this subsection may be to vacate immediately or by a specified deadline. (e)  If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to a notice of proposed eviction, a notice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired. (f)  The notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. If the dwelling has no mailbox and has a keyless bolting device, alarm system, or dangerous animal that prevents the landlord from entering the premises to leave the notice to vacate on the inside of the main entry door, the landlord may securely affix the notice on the outside of the main entry door. (g)  The notice period is calculated from the day on which the notice is delivered. (h)  A notice to vacate shall be considered a demand for possession for purposes of Subsection (b) of Section 24.002. (i)  If before the notice to vacate is given as required by this section the landlord has given a written notice or reminder to the tenant that rent is due and unpaid, the landlord may include in the notice to vacate required by this section a demand that the tenant pay the delinquent rent or vacate the premises by the date and time stated in the notice.

And here is a photo and video of the Pierre “Luxury” Apartments in Hackensack, NJ. A 1-bedroom apartment starts at $1845!pierre View Larger Map

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Apr 14, 2016

ConLaw Class 25 – Same-Sex Marriage

The lecture notes are here.

 Same-Sex Marriage

  • Obergefell v. Hodges

On Tuesday, 10/27/15 Jim Obergefell and Eric Alva appeared at an event in Houston to discuss LGBT rights. Alva, whose name is probably less familiar, was the first Marine who was seriously injured in Iraq–he stepped on a land mine within three hours of arriving–and later championed the cause of repealing Don’t Ask, Don’t Tell. Obergefell, whose name you ought to know, was the lead plaintiff in the Supreme Court’s same-sex marriage decision last June. (He was the named party because his cert petition was filed first, and had the lowest docket number). It was a very interesting and engaging event, as the two offered their personal insights about their history and accomplishments.

Before the event, I asked Obergefell if he would sign my pocket constitution. I have a growing collection of Pocket Constitutions signed by various judges, scholars, and others who have some impact on the Constitution. I usually hand over the Constitution, and ask them to sign the inside cover. But, as I approached Obergefell, I opened it up to the 14th Amendment page. Back in 2008–shortly after Heller–I had asked Justice Scalia to sign my Constitution on the page with the 2nd Amendment. (He refused, twice, but I got him to sign it on the third try). Why not, I thought quickly, ask Obergefell to sign the 14th Amendment. It seemed fitting.

I handed him the Constitution, told him I was a law professor, and said I would be teaching his case in a few weeks. He was really friendly, and as he graciously signed it, as we chit-chatted for a few moments. There were a lot of people waiting to see him, so I didn’t keep him much longer. He wrote his name, and below that “Love Won!” It was poetic, both in terms of what, and where he wrote it.

const

His message was indeed one of love. During the event, he told the heart-wrenching story of how his husband-to-be, John Arthur, was dying from ALS. (Remember the ice bucket challenge?). The couple flew on a medical plane to Maryland, where they were married on the tarmac, and immediately flew back to Ohio. Soon, suit was filed in federal district court in Ohio to modify Arthur’s death certificate, so that Obergefell would be listed as the spouse. The rest is, well, history.

But his inscription took on an even higher salience because of where he wrote it. In the Federalist Society Pocket Constitution I gave him (he didn’t note the irony), there is a blank space below Section 5 of the 14th Amendment. Obergefell, figuratively and literally, added a new section to the Constitution. Justice Kennedy’s majority opinion recognized love itself–not just “equal protection” or “due process of law”–as an interest protected by the Constitution. States that refused to recognize this “dignity” violated the Fourteenth Amendment. At the heart of this constitutional case was love.

With a few small scribbles, perhaps unwittingly, Obergefell aptly summarized everything his case was about from the moral and legal perspectives.

Here are a few other pictures from the event.

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Apr 12, 2016

Petitioners in Zubik did not “g[i]ve their full endorsement to #SCOTUS new compromise proposal”

At SCOTUSBlog, Lyle writes:

Seven groups of religious non-profit hospitals, charities, and colleges on Tuesday evening gave their full endorsement to the Supreme Court’s new compromise proposal for deciding the legality of the Affordable Care Act’s birth-control mandate, saying that the idea would keep them from violating their faiths.  They also argued that the mere suggestion of an alternative makes it clear that the existing ACA regulations on contraceptives are illegal under the Religious Freedom Restoration Act.

Respectfully, I don’t think this is a fair characterization of the Petitioner’s brief. They didn’t endorse the Court’s proposal. Rather, they said the fact that such an accommodation exists is proof that the exiting accommodation is not the least restrictive means. The brief specifically indicates that they do not endorse any alternative:

To be clear, that is not to say that petitioners endorse such an approach as a policy matter. Many of them most emphatically do not, as they sincerely believe that the use of some or all forms of contraception is immoral, and they are hardly indifferent to efforts to encourage or facilitate that use. For that reason, petitioners may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else. And petitioners certainly have the right, protected by the First Amendment, to make that disagreement known. At the same time, however, petitioners do not object under RFRA to every regulatory scheme in which the employees of a petitioner with an insured plan can obtain contraceptive coverage from the same insurance company with which the employer has contracted to provide a health plan. Petitioners simply object to having to play a morally impermissible role in the process through which those insurance companies (or anyone else) might provide contraceptive coverage to their employees. If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.

The petitioners only accept it for argument’s sake for purposes of the RFRA least-restrictive means analysis.

Update: Lyle repeats the same erroneous point at the National Constitution Center Blog:

Even so, there was some “give” on the government’s side, even on points that it would prefer not to forfeit, and there was, in fact, an almost enthusiastic acceptance of the court’s idea on the other side, by religious non-profit hospitals, charities and colleges that object to contraceptives, at least in some forms. …

The non-profits’ brief argued that the federal government could easily adapt to a regime in which the non-profit institutions with religious objections would simply be granted the equivalent of a total exemption from the ACA contraceptives mandate.  And, they said, there were other available alternatives that would also keep them completely out of the process – such as the government setting itself up as the direct provider of birth-control devices and birth-control health coverage, or making contraceptives available through the new ACA health insurance exchanges, or marketplaces..

It was clear from the non-profits’ filing that they thought the court, in seeking reaction to its own suggestion, had sent a signal that it was ready to give them what they were seeking through the multitudes of lawsuits challenging the ACA mandate for contraceptives.

As Greg Lipper–who filed a brief in support of the government noted on Twitter last night–this is not right.

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Apr 12, 2016

Analysis of Supplemental Briefing in Zubik v. Burwell

This evening, the Solicitor General and the challengers have filed their supplemental briefs in Zubik v. Burwell. (I previously described the Court’s order requesting briefing here).

The biggest problem with the Court’s proposed accommodation is that the law does not permit a Third-Party Administrator for a self-insured plan to provide contraceptive coverage unless the employer certifies their objection in writing. The form–or written objection–creates a new contractual relationship–and a new plan instrument. This understanding was made clear during arguments by both Paul Clement and S.G. Verrilli.

The S.G. explains that under the current regulations, what triggers the insurers’ obligation to provide the insurance is the written certification–it in effect becomes a plan document. (This seems to be an unwitting concession about the petitioner’s “triggering” argument). An oral notification does not suffice.

Insurers have an independent statutory obligation to provide contraceptive coverage. 42 U.S.C. 300gg- 13(a)(4). Under the accommodation, an insurer must satisfy that obligation by providing separate payments for contraceptive services outside the employer’s plan, instead of by including contraceptive coverage in the group insurance policy for the plan. 45 C.F.R. 147.131(c). That change in the insurer’s legal obliga- tions currently arises when the insurer receives a self- certification form or a notification that an employer has opted out by contacting HHS. Ibid. In theory, however, the government could provide that the same legal obligations arise following any request by an eligible employer with an insured plan for an insur- ance policy that excluded contraceptives to which the employer objects on religious grounds.7

The government’s designation of the TPA must be reflected in a written plan instrument. 29 U.S.C. 1002(16)(A)(i) [ERISA]. To satisfy that requirement, the ac- commodation relies on either (1) a written designation sent by the government to the TPA, which requires the government to know the TPA’s identity, or (2) the self-certification form, which the regulations treat as a plan instrument in which the government designates the TPA as a plan administrator. Gov’t Br. 16 n.4. There is no mechanism for requiring TPAs to provide separate contraceptive coverage without a plan in- strument; self-insured employers could not opt out of the contraceptive-coverage requirement by simply informing their TPAs that they do not want to provide coverage for contraceptives. As we have explained, however, any employer that objects to a feature of the accommodation unique to self-insured plans can switch to an insured plan. Gov’t Br. 39 n.16.

In other words, ERISA does not permit what the Court wants, because there is no valid plan instrument. (This was the crux of Justice Alito’s questions). The challenger’s brief explains the process:

Because the government seeks to make the TPA a “plan administrator” of the petitioner’s own plan for the limited purpose of ensuring the provision of contraceptive coverage, it needs some sort of written document from the petitioner that it can deem sufficient to empower the TPA to provide or arrange for the provision of contraceptive coverage to beneficiaries of the petitioner’s plan. See Resp.Br.16 n.4. Moreover, a TPA does not have the same authority as an insurer to use plan beneficiary information; as a “business associate,” not a “covered entity,” under HIPAA, a TPA generally is limited to using that information in ways that its contractual relationship with the covered entity permits—i.e., in ways that the objecting self-insured petitioner or the objecting church plan authorizes. See 45 C.F.R. §164.504(e). Accordingly, in the context of self-insured plans, requiring either the “insurer” or the petitioner’s TPA to provide or arrange for the contraceptive coverage necessarily would require something above and beyond the petitioner’s decision not to include contraceptive coverage in its plan.

It would require a written plan instrument.

The S.G. argues that the accommodation could be modified in the manner the Court described, but in light of the underlying statutory regime, it would come at a “real cost.”

Because insurers have an independent statutory obligation to provide contraceptive coverage, the accommodation for employers with insured plans could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation.  . . . If, however, the Court determines that the existing process for invoking the accommodation must be mod- ified in some respect in light of petitioners’ religious objections, it should make clear that the government may continue to require the relevant insurers to pro- vide separate contraceptive coverage to petitioners’ employees in accordance with the other provisions of the current regulations. A decision requiring a modi- fication to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the cov- erage to which they are legally entitled.

The S.G. elaborates on this point later, explaining that in the absence of the self-certification, the insurer may not provide the contraceptive coverage, out of fear of potential liability. If insurers understanding anything, they understand risk–and will not provide benefits unless the law is crystal clear that they can do so:

Second, the use of a simple and standard certification form eliminates the risk of intrusive back-and- forth between insurers and employers. When an in- surer receives a self-certification, it “may not require any further documentation” to establish the employ- er’s eligibility for the accommodation. 45 C.F.R. 147.131(c)(1)(i). An insurer that “relies reasonably and in good faith” on a self-certification to provide separate contraceptive coverage is therefore deemed to comply with its legal obligations even if it turns out that the employer was not eligible for the accommoda- tion. 45 C.F.R. 147.131(e)(1). By contrast, if employ- ers were permitted to opt out simply by informally re- questing policies excluding contraceptives, insurers concerned about their own obligations could demand additional information to verify the employers’ sincer- ity and their eligibility for an exemption.

Third, the self-certification procedure clearly doc- uments an employer’s decision to opt out. The em- ployer must “make the self-certification available for examination upon request so that regulators, issuers, * * * and plan participants and beneficiaries may verify that [the] organization has qualified for an accommodation.” 78 Fed. Reg. at 8462; see 45 C.F.R. 147.131(b)(3). That procedure ensures that the reli- gious employer is not held legally responsible if the insurer fails to provide the required coverage or an employee disputes a particular coverage decision.

Let me unpack what is going on here. The government took the position during oral arguments that ERISA would not provide the statutory authority to support the workaround the Court suggested in its order. Insurers, afraid of liability, could argue that they do not have the appropriate authorizations to provide the coverage. If the government went ahead and did what the Court said, the insurers may not provide the coverage. Alternatively, the challengers would simply bring suit under ERISA, challenging that the insurers lack the appropriate plan instruments to take such action. As a result, the SG is asking the Court to “make clear that the government may” do what it otherwise lacks the authority to do–and by extension make clear to the insurance companies that they can legally comply.

The government doesn’t quite say it outright, but the implication is that RFRA allows the Court to interpret ERISA in a looser manner to permit this.

If the Court determines that some aspect of the present process for opting out renders the accommo- dation inadequate to meet petitioners’ objections to the contraceptive-coverage requirement, it should hold that the Departments may not require compli- ance with the relevant requirements as a condition to invoking the accommodation . . . . Alternatively, if the Court were to conclude that objecting employers may not be required to communi- cate their objections in writing at all, it should hold unenforceable those portions of the regulations that require an employer to provide a written notice to HHS or a self-certification to its insurer, and to maintain a copy of the notice or self-certification in its records. See 45 C.F.R. 147.131(b)(3) and (c)(1).9

This is a remarkable statement. The S.G. is basically asking the Court to vest them with–shall we say–prosecutorial discretion not to enforce provisions of ERISA and its implementing regulations. Justice Alito raised this point during arguments, noting “Could the Executive say, as a matter of our enforcement discretion, we are not going to take any action against insurers who offer contraceptive ­only policies.” Here, the S.G. wants the Court’s blessing not to enforce ERISA and its implementing regulations. For (what seems like) the first time, the Obama administration has found that it lacks discretion to take executive action! If only the Treasury Department’s strict construction of ERISA would bleed over in DHS’s loosey-goosey construction of the Immigration and Nationality Act.

But the challengers make clear that this is not at all how RFRA works. If the government action imposes a substantial burden on free exercise, and there exists a least-restrict means to achieve the same interest–such as providing free contraceptive policies on the Obamacare exchanges–then the mandate fails.

There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs. Moreover, so long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication—petitioners’ RFRA objections would be fully addressed.

And this can be designed in a simple manner:

Like activating a credit card, it could be as simple as having the insurance company send each eligible employee a contraceptive coverage card with a sticker attached providing a telephone number to call or website portal to use should she wish to activate the coverage. That would be much less burdensome than the process through which individuals enroll in separate dental or vision care plans—or in the employer-sponsored plan itself, as that, too, typically requires some affirmative act on the employee’s part.

However unlikely it is that Congress would have to pass a new law to achieve that goal, a least-restrictive means is still possible. As the Chief Justice noted during oral arguments:

CHIEF JUSTICE ROBERTS: So you could have a separate health coverage product sold on the Exchanges. You, in fact, do it already.

GENERAL VERRILLI: You couldn’t do it under current law, Your Honor.

CHIEF JUSTICE ROBERTS: Well, the way constitutional objections work is you might have to change current law.

(Laughter.)

Of course the Chief didn’t mean “constitutional,” as RFRA is a statute, but the point stands. RFRA provides that the current accommodation is unlawful, and does not allow the Court to reinterpret ERISA.

On a related note, At SCOTUSBlog, Lyle writes:

Seven groups of religious non-profit hospitals, charities, and colleges on Tuesday evening gave their full endorsement to the Supreme Court’s new compromise proposal for deciding the legality of the Affordable Care Act’s birth-control mandate, saying that the idea would keep them from violating their faiths.  They also argued that the mere suggestion of an alternative makes it clear that the existing ACA regulations on contraceptives are illegal under the Religious Freedom Restoration Act.

Respectfully, I don’t think this is a fair characterization of the Petitioner’s brief. They didn’t endorse the Court’s proposal. Rather, they said the fact that such an accommodation exists is proof that the exiting accommodation is not the least restrictive means. The brief specifically indicates that they do not endorse any alternative:

To be clear, that is not to say that petitioners endorse such an approach as a policy matter. Many of them most emphatically do not, as they sincerely believe that the use of some or all forms of contraception is immoral, and they are hardly indifferent to efforts to encourage or facilitate that use. For that reason, petitioners may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else. And petitioners certainly have the right, protected by the First Amendment, to make that disagreement known. At the same time, however, petitioners do not object under RFRA to every regulatory scheme in which the employees of a petitioner with an insured plan can obtain contraceptive coverage from the same insurance company with which the employer has contracted to provide a health plan. Petitioners simply object to having to play a morally impermissible role in the process through which those insurance companies (or anyone else) might provide contraceptive coverage to their employees. If the coverage can be provided in a way that eliminates that role, then it can be provided in a way that satisfies RFRA.

The petitioners only accept it for argument’s sake for purposes of the RFRA least-restrictive means analysis.

Update: Lyle repeats the same erroneous point at the National Constitution Center Blog:

Even so, there was some “give” on the government’s side, even on points that it would prefer not to forfeit, and there was, in fact, an almost enthusiastic acceptance of the court’s idea on the other side, by religious non-profit hospitals, charities and colleges that object to contraceptives, at least in some forms. …

The non-profits’ brief argued that the federal government could easily adapt to a regime in which the non-profit institutions with religious objections would simply be granted the equivalent of a total exemption from the ACA contraceptives mandate.  And, they said, there were other available alternatives that would also keep them completely out of the process – such as the government setting itself up as the direct provider of birth-control devices and birth-control health coverage, or making contraceptives available through the new ACA health insurance exchanges, or marketplaces..

It was clear from the non-profits’ filing that they thought the court, in seeking reaction to its own suggestion, had sent a signal that it was ready to give them what they were seeking through the multitudes of lawsuits challenging the ACA mandate for contraceptives.

As Greg Lipper–who filed a brief in support of the government noted on Twitter last night–this is not right.

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Apr 12, 2016

Tomorrow at National Constitution Center: Championship Round of the Harlan Institute and The Constitutional Sources Project’s Virtual Supreme Court Competition

The National Constitution Center, The Harlan Institute, and The Constitutional Sources Project (ConSource) will host the championship round of the Fourth Annual Harlan Institute-ConSource Virtual Supreme Court Competition as part of the Center’s Freedom Day Celebration on April 13, 2016 at 2 p.m.. We are pleased to announce that the finalist teams have been selected, and include:

For the petitioners: Kelsey Talbot and Lauren Talbot from Lake Oswego High School in Lake Oswego, Oregon.

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Here is the video from their championship round.

For the respondents: Michael Mireles and Tanya Reyna from IDEA Quest College Preparatory in Edinburg, Texas.

quest

Here is their video:

These finalists will travel, along with their teacher and parents, to Philadelphia on April 13th to debate in front of a panel of expert judges, including lawyers, university level debate champions, and legal scholars. Confirmed judges include: The Honorable Theodore McKee, Chief Judge, United States Court of Appeals for the Third Circuit; Professor Kermit Roosevelt, University of Pennsylvania School of Law; Mr. Howard Bashman, Appellate Attorney and Founder of the How Appealing Blog; Julie Silverbrook, Executive Director, ConSource; Josh Blackman, President, Harlan Institute.

Freedom Day is an opportunity to encourage people of all ages to appreciate their unique freedoms as Americans, to understand the relationship between the Declaration of Independence, the Bill of Rights, and the U.S. Constitution, and to encourage dialogue on the meaning of freedom. In addition to the debate, the Center will produce Freedom Day programming and activities for visitors of all ages, including educational games and museum experiences for students, and an evening program for an invitation-only audience featuring high level speakers, moderators, and media discussing current issues surrounding the First Amendment.

The Harlan Institute and ConSource are thrilled that the final round of the Virtual Supreme Court Competition will be part of the National Constitution Center’s Freedom Day celebration. The aim of the Virtual Supreme Court Competition complements that of Freedom Day – to encourage dialogue on the meaning of the U.S. Constitution. Specifically, the competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year’s competition focuses on Fisher v. University of Texas at Austin (II), exploring whether race conscious affirmative action is consistent with the Fourteenth Amendment to the United States Constitution.The members of the grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2016. Members of the runner-up team will each receive an iPad Mini. Members of the third and fourth place teams will each receive a $100 Amazon.com Gift card.

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Apr 12, 2016

Delegates Unbound

Today, the news is awash with charges that both the Republican and Democratic primary processes are “rigged” and “crooked.” That is, a candidate for President can be selected even though that person did not receive a majority of the votes. I’ll put aside for the moment the fact that these rules have been set for some time, and were readily available to anyone who wanted to study them. What fascinates me far more is this outrage that the selection process is “undemocratic.”

As I often remind my students, we do not live in a democracy (no matter how many books Justice Breyer writes). We live in a Republic, where the structural provisions of our Constitution are designed in many ways to check democratic factionalism.  Let’s consider a few examples, with respect to choosing the actual President–and not just the candidate for a political party.

When Americans go to the poll to vote for President in November, they are not actually voting for President. They are voting for electors, who will meet in the electoral college, to determine who should receive that state’s electoral votes. The number of electoral votes is determined by adding together the number of representatives and Senators–so a state must have a minimum of three. (In this sense, the votes of more populous states are somewhat diluted–so much for “one person, one vote”).

However, contrary to common conception, the Constitution does not require the electors to vote for whoever won the popular vote in the state. This was not an accident. The delegates chosen to attend the electoral college–what our framers may have called “the Establishment”–didn’t trust the masses. The electoral college served as a check, to ensure that a demagogue–even someone who achieved a majority in the popular vote–would not be selected as President. This is still (in large measure) the law today. According to FairVote, 29 states bind their electors to vote for the candidate that won the popular vote. But 21 states do not. In 2012, the AP reported that 5 Republican “rogue”  electors would vote for Ron Paul over Mitt Romney.

As a result, those electors are free to vote for whomever they want. In theory at least, a candidate could receive the electoral votes of 21 states, without winning a single vote in that state.

It gets even more undemocratic. Consider the election of 1800. Thomas Jefferson had 73 electoral votes, Adams had 65 votes, and Aaron Burr had 73 votes. Because no one received a majority, it goes to the House of Representatives, where each state has a single vote. (This puts large states at a significant disadvantage over smaller states with a single member–and divided states with an even-number of members may not be able to agree on a single vote). On the 35th ballot, the House finally selected Jefferson as President. But they didn’t need to. They could have selected the third-place finisher, Adams, who had received fewer electoral votes than Burr, but had more popular votes. If a candidate won a single electoral vote–perhaps because an elector did not follow his state’s popular vote–that person can go to the House ballots, and become President, if the House so chooses. The popular vote here is totally irrelevant. As Al Gore knows all too well, winning the popular vote does not make you President.

I could go on, but you get the drift. The process of selecting the President set out by the Constitution is extremely anti-democratic. I suppose current events can serve as a helpful civics lesson about our Republic.

Disclosure: I support Sen. Ted Cruz’s campaign, but my views on the separation of powers long predate his candidacy.

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Apr 12, 2016

Prop1 Class 24 – Leaseholds II

The lecture notes are here.

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