Sep 10, 2014

Edwin Kneedler on NFIB v. Sebelius: “That was more pressure than any other.”

I encourage you to read Bob Barnes’s excellent profile of the inestimable Deputy S.G. Edwin Kneedler, who has now served in DOJ for over 40 years. His lineage was remarkable.

Suppose you were looking for a lawyer to argue a case before the Supreme Court and this résumé crossed your desk:

Started legal career after being hired by Antonin Scalia. Worked on briefs and legal strategy with John G. Roberts Jr. Mentored Samuel A. Alito Jr. Served as acting solicitor general for President Obama and helped prepare Elena Kagan for her first court argument.

Oh, and besides working with four Supreme Court justices, has argued 125 cases there, more than any other practicing lawyer.

The only problem with trying to hire Edwin S. Kneedler is that you can’t. He is exclusive to one client: the government of the United States.


In particular, I’ll draw attention to his comments about NIFB v. Sebelius:

The biggest case he participated in, he said, would be the defense of Obama’s Affordable Care Act, which the court mostly upheld on a 5-to-4 opinion by Roberts.

“That was more pressure than any other,” Kneedler said, with the debate “so public and so intense.”

The appeals process dominated a year of his life, and Verrilli said Kneedler’s involvement was crucial to the outcome.

Of the four arguments in NFIB, Verrilli argued three: Tax Anti-Injunction (Day 1), Individual Mandate (Day 2), Medicaid Expansion (Day 3 afternoon). Kneedler argued the severability argument (Day 3 morning).

Remarkable, he is truly apolitical.

Which is not the same as saying Kneedler favored the act. Both Republicans and Democrats who have worked with Kneedler say they have no idea about his political leanings.

“There are not many people you meet in Washington like Ed,” said Verrilli, a Democrat. “Ed doesn’t filter legal questions through a political prism. I don’t know if he’s a liberal or conservative.”

Clement, a Republican, said he agrees. Kneedler’s concern is that a new administration changes policy the way it should — through rule-making and the legislative process — instead of the “back door of simply changing legal opinions.”


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Sep 10, 2014

IRS Commissioner on Obamacare Implementation: “Whenever we can, we follow the law”

This just sums up the Administration’s commitment to the Rule of Law, with respect to Obamacare:

During another grueling hearing on the ObamaCare rollout, the head of the Internal Revenue Service tried to offer lawmakers an assurance about the soon-to-open enrollment period.

“Whenever we can, we follow the law,” IRS Commissioner John Koskinen told the House Ways and Means subcommittee on health on Wednesday.

Rep. Kevin Brady (R-Texas), who leads the subcommittee, immediately expressed his concern with the remarks.

“I encourage you to follow the law in all instances,” Brady said.

I would think Koskinen would want that line back.

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Sep 10, 2014

Presentation: Hobby Lobby, Obamacare, and Religious Liberty

This year, I will be giving quite a number of presentations on Hobby Lobby, with a focus on religious liberty, and how it fits into the broader context of Obamacare. Here are the slides.

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Sep 10, 2014

Talks on Thursday in East Lansing and Grand Rapids

On Thursday, 9/11 at 12:15, I will be giving a talk on Hobby Lobby at the Michigan State University College of Law Federalist Society Chapter. Professor Mae Kuykendall will be providing commentary on my talk.

Later that day, at 5:30, I will speaking at the Grand Rapids Federalist Society Chapter, also on Hobby Lobby. The event will be held at Clark Hill, PLC 200 Ottawa NW, Suite 500 Grand Rapids, MI.

If you are in the area, I hope to see you there!

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Sep 10, 2014

Prop1 Class 7 – Acquisition by Find

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

When you think of a Chimney Sweep, this image may come to mind.


But this image is probably a lot closer to young Master Armory.

victorian style chimney sweep, a child chimney sweep,  hulton pi




This diagram shows the different ways a sweep can get stuck in a flue.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram: A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes. B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees. C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way D (omitted) is a short flue from the third floor E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated. F (omitted) G How a flue could be straighten to make it sweepable by mechanical means H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

A seven-flue stack, showing how it would be cleaned by Climbing boys, or with little modification by a human cleaning machine (a brush). In the diagram:
A- is a hearth served by vertical flue, a horizontal flue, and then a vertical rise having two right-angled bends that were difficult for brushes.
B- is a long straight flue (14in by 9in) being climbed by a boy using back elbows and knees.
C- is a short flue from a second floor hearth. The climbing boy has reached the chimney pot, which has a diametre too small for him to exit that way
D (omitted) is a short flue from the third floor
E shows a disaster. The climbing boy is stuck in the flue, his knees jammed against his chin. The master sweep will have to cut away the chimney to remove him. First he will try to persuade him to move: sticking pins in the feet, lighting a small fire under him. Another boy could climb up behind him and try to pull him out with a rope tied round the legs- it would be hours before he suffocated.
F (omitted)
G How a flue could be straighten to make it sweepable by mechanical means
H A dead climbing boy, suffocated in a fall of soot that accumulated at the cant of the flue.

Frequently the boys would get stuck (the image on the right).


Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).

Source: This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.

Source: This was created in 1736 and is currently housed at the Museum of Fine Arts in Boston, Massachusetts.


This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.

This work was created in 1745 and is housed at the Sterling and Francine Clark Art Institute in Williamstown, Massachusetts.


There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.

There are many different de Lamerie works in this photograph of the interior of the Marks Antique Silver gallery in London, England. Marks frequently sends travelling galleries of antique silver to the United States in places such as Palm Beach, L.A., and New York City.


This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

This is one of the less common gold pieces of art created by de Lamerie. This is housed at the Gilbert Collection in London, England.

Here are a number of stories about finding abandoned stuff:

This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)


Here is a trailer for a fascinating documentary about the legal fight between two men who claim to have caught Barry Bonds’s record-breaking 73 homerun in 2004.

And here is the moment it hits the crowd.


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Sep 10, 2014

Prop2 Class 7 – Mortgages

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

Today we will be covering mortgages. You can view samples of Texas mortgages here:

Texas’s Anti-deficiency statute is here.

(c)  If the court determines that the fair market value is greater than the sale price of the real property at the foreclosure sale, the persons against whom recovery of the deficiency is sought are entitled to an offset against the deficiency in the amount by which the fair market value, less the amount of any claim, indebtedness, or obligation of any kind that is secured by a lien or encumbrance on the real property that was not extinguished by the foreclosure, exceeds the sale price. If no party requests the determination of fair market value or if such a request is made and no competent evidence of fair market value is introduced, the sale price at the foreclosure sale shall be used to compute the deficiency.

And this clip from South Park may help explain the subprime mortgage crisis. Or not.

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Sep 9, 2014

Little Sisters of the Poor Object to New Contraceptive Proposal in 10th Circuit

A few weeks ago, the Obama Administration effectively adopted the Court’s Wheaton College order’s proposal–non-profits need not fill out a form, but only need to notify the government they object to paying for contraceptives.  Then, HHS would notify the insurance provider who would provide coverage for the contraceptives (oversimplifying).

WSJ reports that the Little Sisters of the Poor, and other similarly situated groups, have filed briefs in the 10th Circuit objecting to this new compromise:

In briefs filed to the U.S. Court of Appeals for the Tenth Circuit Monday, several groups that had already begun cases against the administration said the fresh arrangement announced last month still doesn’t resolve their concerns.

“The Little Sisters have stated a clear religious objection to facilitating the distribution of contraceptives in connection with their plan in any way,” said lawyers for the Little Sisters of the Poor, Catholic nuns who run a chain of nonprofit nursing homes. The fresh proposals “therefore merely offer the Little Sisters another way to violate their religion and comply with the mandate.”

The other challengers in the Denver-centered circuit are Southern Nazarene University, a Christian college in Oklahoma affiliated with the Church of the Nazarene, and Reaching Souls International, an evangelical Christian mission based in Oklahoma City. They also signaled in court filings the compromise doesn’t satisfy them and they want the courts to consider their lawsuits challenging the requirement

Government lawyers told the court that the fresh system will “provide an alternative opt-out mechanism that respects religious liberty while allowing the government to achieve its “compelling interest in providing insurance coverage that is necessary to protect the health of female employees.'”

I am not quite sure if the circuit court will consider the new issues afresh. It may make sense to remand to the district court to consider the new regulation. In effect, the current suit is challenging a regulation that is no longer in effect.

But who knows.

Update: It seems that the United States thinks the 10th Circuit should go ahead with the appeal without remanding. I thought the government would try to drag their feet with this, as they do with all other Obamacare cases. But I suppose when the an injunction prevents the provision of contraception, they must move with all deliberate speed.

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Sep 9, 2014

Justice Breyer On The Old West and Justice

On October 21, Justice Breyer will be speaking at the Forum on Law, Culture, and Society’s screening of “The Man Who Shot Liberty Valence” at the 92nd Street Y. Here are the details:

The screening of this classic John Ford/Jimmy Stewart/John Wayne Western is followed by a discussion with Supreme Court Justice Stephen Breyer: What does he think about the justice that was once practiced on the American frontier when a “hired gun” didn’t mean an unconflicted lawyer? Are truths found in courtrooms or in the legends that our culture adopts? How relevant is the movie to today’s culture and legal system?


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Sep 9, 2014

NY Times: Repeated War Powers Letters May Reset WPR Clock

The New York Times echoes Jack Goldsmith’s theory that the President’s decision to send repeated letters announcing each new military strike in Iraq, is a means to reset the WPR 60-day clock.

White House lawyers are reviewing legal options to authorize a campaign, including an application of the 2001 Authorization for Use of Military Force, which empowered President George W. Bush, and later Mr. Obama, to carry out military action against Al Qaeda and its affiliates.

But against ISIS, the president has invoked his authority as commander in chief and notified Congress of specific airstrikes under the War Powers Resolution. In his latest letter on Monday, the seventh since the threat from ISIS emerged in June, he wrote, “I appreciate the support of Congress in this action” — support that he has not formally received.

Some legal experts have noted that sending repeated letters under the War Powers Resolution has the effect of resetting the clock, since under the law, the president has 60 days, after each letter, to terminate the military action or obtain the approval of Congress.

The article goes on to say the President does not think he needs the authorization of Congress. This lends more credence to Goldsmith’s theory.

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Sep 9, 2014

Can We “Set Aside Politics,” Progress from “Last Year’s Battles,” and “Move Forward” On Obamacare?

New HHS Secretary Sylvia Matthews Burwell gave an address today at GW that urged us to move past “last year’s battles” and “move forward.” She repeated this message several times throughout her remarks. Here are some of the higlights:

What’s central to all this is not politics. It’s progress: setting aside the back and forth, and instead choosing to move forward.

I can tell you that what I’ve been hearing over and over – whether it’s from friends who I talk to back in West Virginia, to business leaders, to elected leaders, to my new colleagues at HHS – it is “enough already with the back-and-forth on the Affordable Care Act. We just want to move forward.

So what I’ve told my team at HHS, is that we’re not here to fight last year’s battles, we’re here to fight for:affordability, access, and quality.

Lets move beyond the back and forth, let’s move forward, together.

A much bigger question, is can we move on as a society? I am doubtful. While discussions of something as important as health care should be grounded in policy debates, the ACA–passed along a party-line vote against massive political opposition–seeded the law in deep partisan opposition for the foreseeable future. My comment in Unprecedented from 2013 seems more apt today than when I wrote it:

The ACA’s party-line vote was unprecedented for such a major law. Not a single Republican in the House or Senate supported this law. Forty-nine percent of the House of Representatives opposed it, hardly a mandate (no pun intended) for transformational change. These sentiments reflected those of America as a whole—polling data from 2009 to 2012 consistently showed that the mandate was widely unpopular, and remains so today. Legislation is always a compromise, especially in a state of gridlock exacerbated by recalcitrant Republi- cans. However, the president and leaders in the Congress forced this law thorough with full knowledge that there would be no bipartisan support and that they would lose members of their own caucus.

The (seemingly) simple lesson to be learned here is that the “pass it at any cost” mentality may seem like a good idea in the short term, but in the long term, it is a poor plan. It is not a productive way to pass monumental, transformative legislation. The ACA was from the start mired in a political grudge match and will remain so for the foreseeable future. It was prepared to fail before it even was born. This is a lesson the president will have to heed in his second term in office, when he will simply lack the votes to enact laws on party lines. Indeed, this is a lesson for any future president—don’t try to change the nation when 49 percent of Congress opposes it. This was a sign that America as a whole wasn’t quite ready for this kind of law.

With this history, I don’t know if it is that easy to simply move forward.

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Sep 8, 2014

Justice Kagan Matches Her Portrait

I can’t quite tell from the photo, but it looks like Justice Kagan is wearing the same (or very similar) outfit in her portrait at HLS, as she is standing in front of her portrait. Deliberate?


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Sep 8, 2014

The ACLU, the First Amendment, and the “Ideological Virus”

Yesterday Ron Collins noted that 6 former leaders of the ACLU have come out, and effectively supported the effort to amend the First Amendment. (My thoughts on the Amendment are here). Thankfully, some at the ACLU are continuing to hold down the protection of our free speech. Ron comments further at NLJ, speaking of an “ideological virus” that has infected the left:

Ronald Collins, a First Amendment scholar who has written about the rift within the ACLU on campaign reform, said Sunday: “With increasing regularity the left is abandoning the cause of free speech whenever it seems to run counter to its brand of liberalism. Regrettably, this ideological virus has infected some ACLU types (and much of liberal left in the legal academy.) Thankfully, there is a fighting contingent in the ACLU that still believes in the First Amendment enough to resist the clamoring calls for censorship.”

Although the vote is scheduled for today, Roll Call reports that Republicans may seek to delay the vote.

Senate Democrats are facing the prospect of Republicans voting to prolong debate on a campaign finance constitutional amendment, a move that could interfere with Democrats’ plans for a barrage of pre-election votes on issues from student loans to the minimum wage to equal pay for women.

Senate Majority Leader Harry Reid, D-Nev., has already scheduled a Monday evening vote to cut off debate on taking up a proposal sponsored by Sen. Tom Udall, D-N.M. to amend the constitution to effectively overturn the Supreme Court’s Citizens United decision, which threw out many limits on campaign spending on First Amendment grounds. Republicans vehemently oppose the amendment and it seemed, at least at the outset, that Democrats were planning for a quick defeat.

“Their goal is to shut down the voices of their critics at a moment when they fear the loss of their fragile Senate majority. And to achieve it, they’re willing to devote roughly half of the remaining legislative days before November to this quixotic anti-speech gambit,” Senate Minority Leader Mitch McConnell wrote in Politico opinion piece posted late Sunday.


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Sep 8, 2014

Prop1 Class 6 – The Bundle of Sticks

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.


The lecture notes are here, and the livechat is here.

Here is an article from 1970 discussing the case of State v. Shack.

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.


And this is Richard Epstein.


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Sep 8, 2014

Prop2 Class 6 – Deeds & Warranties

Today we will continue our discussion of deeds and warranties.

Finally, we will reference this Texas General Warranty Deed in class. Here is a sample warranty deed from Texas, an earnest money contract.

Today’s lecture notes are here. The livechat is here.

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Sep 7, 2014

The Train Wreck Cometh (Again)?

Recently, Obamcare has been quiet. Too quiet. But that won’t last long. Contary to the assurances from Ezra Klein that Obamacare is “succeeding beyond all reasonable expectation,” Bob Laszewski highlights some of the big problems that will face between now and January.

First, while 2015 rate increases have been modest, the real hikes will ht in 2017 when the reinsurance programs end.

We won’t know what the real Obamacare rates will be until we see the 2017 rates––when there will be plenty of valid claim data and the Obamacare reinsurance program, now propping the rates up, will have ended.

Second, is still not fully built!

The backroom is not built yet––a year and counting after it should have been.

How many people are enrolled in Obamacare? Without a government to insurance company accounting system yet built, no one knows.

Third, renewing policies is not as easy as it may seem, as everyone will need to go through the same subsidy verification process that many buyers last year skipped.

While the administration tells Obamacare policyholders their automatic renewal will go smoothly, the fact is every one of these subsidy-eligible people needs to go to the exchange website and re-enroll.

Since the administration can’t automatically update a participant’s subsidy based upon 2015 changes in their local baseline Silver plan, the Obama administration’s assurances that the renewal will go smoothly, without existing participants having to re-enroll, is just plain bad information that is going to cause people lots of problems.

The upshot is however many million people (pick any number other than 8 million) are still enrolled, everyone really needs to visit their state exchange or in the month between November 15 and December 15 in order to have their January 2015 enrollment validated, to be sure their income information is up-to-date, and to be sure they are enrolled in the optimal plan for the best subsidy.

Fourth, up to 10 million people will have to sign up between November and December. Throw in all of the cancellation notices–unless the President decides to extend ungrandfathered plans another year.

Five to ten million people all trying to get through exchange websites between November 15 and December 15? Add however many people are going to sign-up for the first time this November to all of those existing participants re-enrolling for January 1, who will all be hitting the still fragile and state exchanges during that four week period, and it is not hard to see how Obamacare could be back in the news.

While the open-enrollment is now scheduled to begin until 11 days after the November election there will be plenty of renewal and cancellation letters going out in October––not the least will be more pre-Obamacare policies being cancelled this year now that their one-year extension is up––carriers aren’t necessarily allowing policies to be extended further.

Oh, and there is an election coming up.

Does this all sound confusing? Just wait until we approach the next open-enrollment with millions of people hearing about all of this complexity and having just four weeks to get their enrollment validated for January 1. The Obamacare anxiety index is going to be off the charts well before November 15th.

I am in the process of writing my proposal for Unraveled. It is a bit surreal to draft a table of contents for things that haven’t happened yet. Regardless of what happens, there will be a chapter between October and December 2014 about the signup period. Time will tell what I write.



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Sep 7, 2014

Sotomayor Slips And Says “Illegal Aliens”

The Times reports that Justice Sotomayor surprised a group of 25 lawyers, forming the inaugural Immigrant Justice Corps. The Justice took the occasion to praise the lawyers for providing representation, and helping immigrants “get[] into this country.”

But he was upstaged in his own chambers by a fellow advocate for immigrants. Citing a study on the shortage of legal representation, Justice Sotomayor said, “You don’t stand a chance of getting into this country if you’re unrepresented.” But, if you are represented, she added, “the odds are more in your favor.”

Speaking to the group, she said, “You’re changing those lives for a lot of people.”

Tiptoeing around a young lawyer’s question about what an ideal immigration system might look like in 100 years, Justice Sotomayor suggested that the current one was not meeting society’s needs. “A lot of the immigrants who are coming, like some of those in this room, are coming because of asylum needs,” she said.

I suppose the goal of any advocate is to help a client win, in this case “get[] into this country.” I should hope that this is also not the goal of the Justice, whose aspirations should be to encourage lawyers to zealously advocate for their clients rights, come what may. It would be a bit odd for a Justice to tell a bunch of criminal defense attorneys–you don’t stand a chance of getting out of a search that yielded incriminating evidence if you’re unrepresented. But if you are represented, the odds are more in your favor. Anyway.

Though, Justice Sotomayor did seem to slip, and used the phrase “illegal immigrant.”

Domestic labor problems also weighed on her. “We’re in a really dysfunctional system right now, where the community obviously is hiring and employing illegal aliens, so there’s a need,” she said.

In using the phrase “illegal aliens,” Justice Sotomayor inadvertently broke her own rule to instead use the phrase “undocumented.” The rule, which she explained earlier to the group, was a way to recognize that immigrants who break the law are not necessarily bad people.

During a conversation at Yale Law School, Justice Sotomayor addressed her decision to use the phrase “undocumented immigrant” rather than the phrase used in the statute, “illegal alien.”

Sotomayor also addressed her use of the term “undocumented immigrants” rather than the term “illegal alien,” characterizing the immigration issue as a regulatory issue.

“To dub every immigrant a criminal because they are undocumented, to call them illegal aliens seemed and has seemed insulting to me,” said Sotomayor. “I think people then paint those individuals as less than worthy human beings and it changes the conversation.”

Justice Sotomayor first used the term “undocumented immigrant” in Mohawk Industries v. Carpenter in December 2009, her first opinion on the bench.

The following term, in Chamber of Commerce v. Whiting, the question presented used the statutory term, “unauthorized aliens.” During oral argument, Justice Sotomayor used the term “illegal alien,” but quickly corrected herself and said “undocumented aliens.”

JUSTICE SOTOMAYOR: — just — just focus the question? Because we keep talking about whether the APA-type definition of licensing is what Congress intended or not, but you don’t disagree that Congress at least intended that if someone violated the Federal law and hired illegal aliens of Hispanic — undocumented aliens and was found to have violated it, that the State can revoke their license, correct, to do business?

Justices Scalia and Alito had no problem, and used the phrase “illegal alien.”

In 2012, in Arizona v. United States, Justice Sotomayor used the phrase “illegal alien.”

JUSTICE SOTOMAYOR: What happens if — this is the following call — the call to the — to the Federal Government. Yes, he’s an illegal alien. No, we don’t want to detain him. What does the law say, the Arizona law say, with respect to releasing that individual?

In 2013, in Moncrieffe v. Holder, Justice Sotomayor consistently uses the term “noncitizen.” Nowhere in her opinion does the word “alien” appear. Justice Alito takes exception to this, and adds in a footnote:

1 “Alien” is the term used in the relevant provisions of the Immigration and Nationality Act, and this term does not encompass all noncitizens. Compare 8 U. S. C. §1101(a)(3) (defining “alien” to include “any person not a citizen or national of the United States”) with §1101(a)(22) (defining “national of the United States”). See also Miller v. Albright, 523 U. S. 420, 467, n. 2 (1998) (GINSBURG, J., dissenting).

In a few short years, Justice Sotomayor has gone from “undocumented immigrant” to “undocumented alien” to “noncitizen.” And back to “illegal alien.”

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Sep 7, 2014

Posner v. Scalia, Round XXVI – Baker v. Nelson Edition

In his opinion invalidating Indiana and Wisconsin’s bans on same-sex marriage, Judge Posner couldn’t help himself, and jabbed Justice Scalia. Specifically, he suggests that Scalia thinks Baker v. Nelson would still be good law.

Civil Service Commission, 755 F.2d 266, 272 (2d Cir. 1985). Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577– 79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.

Scalia’s opinion in Lawrence doesn’t cite Baker. Here is the relevant passage:

This case “does not involve” the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

This is an unpersuasive citation. Scalia most certainly didn’t say the Court would be “required” to so hold–though many (gleeful) district judges have cited him for that proposition.

What is most remarkable about this citation is that Posner totally brushes it aside. After mentioning Scalia’s opinion–which doesn’t even allude to Baker–Posner doesn’t even bother replying to it, which was why he mentioned it in the first place. I got the gist that he thought Scalia so horribly wrong, that merely stating his position was sufficient to establish its fallaciousness.

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Sep 7, 2014

Is NYC’s Affordable Housing Policy An Exaction?

The Times reports that Mayor de Blasio’s new housing policy–crafted with the assistance of LawProf Vicki Been–would require the construction of affordable housing units in exchange for any zoning change.

In the most forceful remarks yet of an administration determined to reshape the cityscape, Mayor Bill de Blasio’s top planning official declared on Friday that affordable units will be a requirement for any future real estate project requiring a zoning change from the city.

The mandate will apply not only to neighborhood-wide redevelopments, like the earlier transformation of industrial Williamsburg into a residential mecca, but also to individual projects, as when a developer needs a waiver to graft stories onto an apartment tower in Midtown.

“You can’t build one unit unless you build your share of affordable housing,” Carl Weisbrod, chairman of the City Planning Commission, told a packed room of landlords, planners and investors at a New York Law School breakfast on Friday. “You can’t build just market-rate housing, period.”

It’s unclear whether this policy applies to all zoning changes, large or small.

Surprising some audience members, Mr. Weisbrod said the requirements would apply not only to neighborhood-wide residential zoning changes, but also to virtually every apartment project of six or more stories that city planners must approve. (Projects not requiring a rezoning would still be allowed to rise without adding affordable units.)

So would this run afoul of the Nolan/Dolan line of cases? In short, is there an “essential nexus” between the “legitimate state interest” in promoting affordable housing, and the refusal to otherwise grant zoning permits to build? If so, how good of a fit is that nexus.

I suppose, in NYC it won’t matter much. Assuming there is an exaction, the city simply won’t hand out the zoning permit, and nothing will get built. But, this may be a viable suit if a pre-existing structure seeks a zoning change, and NYC wont grant it, unless existing units are converted over to below-market rates. That could provide a vehicle for a suit.

Stay tuned.

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Sep 7, 2014

Constitutional Faces: Lillian Gobitas Klose (1935-2014)

The Times reports that Lillian Gobitas Klose, the famous student who refused to salute the American flag, has died.

Lillian Gobitas Klose, whose refusal, on religious grounds, to recite the Pledge of Allegiance as a seventh grader in a Pennsylvania public school in 1935 ignited national indignation, as well as a roiling legal fight that led to an expansion of First Amendment rights, died on Aug. 22 at her home in Fayetteville, Ga. She was 90.

Her daughter, Judith Klose, confirmed the death.

Lillian Gobitas’s family belonged to the Jehovah’s Witnesses and heeded a leader’s call to refuse to recite the pledge in compliance with biblical commands against idolatry. On Oct. 22, 1935, Lillian’s brother William Gobitas, a fifth grader, refused to say the pledge at his public school in Minersville, Pa. The next day, Lillian did the same thing. The town school board responded by passing a resolution calling refusal to recite the pledge an act of insubordination. It then expelled the Gobitas children.

“They expelled us right then and there,” Mrs. Klose said in an interview with The Philadelphia Inquirer in 2003. “They said, ‘Don’t come back.’ ”

For 12-year-old Lillian, the sting from her act of conscience — which she said was entirely the result of her own thinking, not her parents’ — was sharp. Children threw rocks at her, The Washington Post reported in 1988.

She overheard two girls talking. “We used to be friends with her,” one said. People jeered the family on the streets. William was beaten by schoolmates. Local churches led a boycott of the family’s grocery store.

“It got real ugly,” Mrs. Klose told The Morning Call, a daily newspaper published in Allentown, Pa., in 1988. “They thought we were Communists, Nazis. They felt real righteous about it.”

The controversy led to an eight-year legal battle. It pitted the virtues of a strong national government — unified by patriotic sentiment as the country was edging toward war — against the protection of individuals from being coerced by that government. The Supreme Court decided 8 to 1 in 1940 that compelling students to say the pledge was not a violation of religious freedom, with Justice Felix Frankfurter writing the majority opinion.

The ruling sparked attacks on 1,488 Witnesses in 44 states, the American Civil Liberties Union reported.

In West Virginia, Witnesses were forced to swallow large amounts of castor oil. In Wyoming, they were tarred and feathered; in Nebraska, they were castrated. In Maine, a mob of 2,500 burned down a local Witness place of worship, known as a Kingdom Hall.



Lillian Gobitas with her brother William and her father Walter (1940).


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Sep 7, 2014

Posner on “Semantic” Scrutiny and Constitutional Law

Judge Posner is often compared to Justice Holmes. In fact, Posner venerates Holmes. While I am not a fan of Justice Holmes’s jurisprudence, I don’t know that this comparison is particularly flattering for a Circuit Justice who has to contend with an additional century of binding constitutional law. Justice Holmes was through and through a common law judge. He wrote from first principles, building on precedent as needed, and developing the law in the direction he thought proper.

Even if this was the appropriate role for a Supreme Court Justice with respect to constitutional law at the turn of the 20th century (debatable), it is much harder to justify this free-wheeling approach for a Circuit Judge in the year 2014. We have a lot of precedent. It’s messy. And it doesn’t always fit together. Sometimes, Circuit Judges are bound by precedents that cannot be reconciled, and they must decide by their best lights. But, and this is key, they try to fit their decision into the precedent, as best they can.

And then there’s Judge Posner. His decision in the same-sex marriage case is rich in discussion of principles of equality, as a matter of first principles. But with respect to judicial precedent, it is really, really flimsy. You can read entire pages without seeing a single citation to anything, other than his own Holmesian sense of the law. Contrast this with thoughtful decisions from the 4th and 10th Circuits, which are grounded thoroughly in the Court’s precedents. Posner is a brooding omnipresence in the sky unto himself. While this makes for an entertaining read, from a jurisprudential perspective, it’s a mess.

I’m reminded of something Orin Kerr wrote a few years ago about a Posner 4th Amendment decision:

I am often filled with a mild sense of both excitement and dread when I learn that Judge Posner has authored an opinion in areas of law that I follow closely. Excitement, because I know it will be fascinating to read. And dread, because I know it will be filled with extensive error-prone dicta on issues not briefed and reasoning that is hard to square with existing precedents.

This is exactly right. In Baskin, there was little effort to try to fit the decision into the Court’s precedents. If anything, Posner was trying to reimagine the Court’s precedents to fit the facts of same-sex marriage. (I’m sure he would tell you he knows better than the Nine). His disinterest in the Court’s case law is evident in the first few pages, where he breezily makes his way through some precedents, that say something about what he wants, and then he goes for a philosophical analysis of the costs and benefits of same-sex marriage. The rest of the decision is heavy with citations to social science, and light with citations to the Supreme Court.

Let’s walk through this analysis.

First, he quotes from FCC v. Beach, a Thomas opinion that lays out the quintessential version of the uber-deferential rational basis test. You would think this citation suggests that he will apply rational basis test. But no. He focuses on the fact that the rational basis test does not apply to suspect classes:

We are mindful of the Supreme Court’s insistence that “whether embodied in the Fourteenth Amendment or in- ferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor in- fringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993) (emphasis added). The phrase we’ve italicized is the exception applicable to this pair of cases.

You would think this summary would be followed by a discussion of why gays and lesbians are suspect classes. You know, an effort to fit the decision in with the Court’s precedents. But no. The word “suspect” only appears in the next page, where he explains that even if the class is not “suspect,” the court still applies some scrutiny that is higher than rational basis.

We hasten to add that even when the group discriminated against is not a “suspect class,” courts examine, and sometimes reject, the rationale offered by government for the challenged discrimination. See, e.g., Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 448–50 (1985).

What makes this citation fascinating, is that the Court REVERSED Posner in Olech. (I wrote an article about this case). The Court held that a class of one need not be a suspect class, and that it is difficult to show animus!

In the Seventh Circuit—the origin of Olech—Judge Posner reaffirmed his insistence that an equal protection claim must show a “vindictive action” which requires proof of a “totally illegitimate animus” against the plaintiff. ….

On appeal circuit Judge Posner found that an “orchestrated campaign” was a sufficient, but not necessary, condition to state a claim as a class of one and “that the ‘vindictive action’ class of equal protection cases requires proof that the cause of the differential treatment . . . was a totally illegitimate animus.”104 Judge Posner remanded for further factual findings.105

In other words, Posner went out of his way to find a lack of animus against a class of one. The Supreme Court reversed in an odd, short per curiam opinion. Following the remand, Judge Posner read narrowly the Court’s per curiam decision, and sided with Justice Breyer’s concurring opinion:

Judge Posner adopted Justice Breyer’s alternative theory and mandated a finding of subjective motivations.145 Citing its decision in Olech, the Hilton court noted that the claim requires “proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant.”146 Because the plaintiff did not prove that the government action was motivated by an illegitimate animus, the court found that the plaintiff had not pled a class of one.147 Making a policy argument against flooding the federal courts with cases where plaintiffs are merely treated differently, Judge Posner reasoned that “[i]f a merely unexplained difference in police treatment of similar complaints made by different people established a prima facie case of denial of equal protection of the laws, the federal courts would be drawn deep into the local enforcement of petty state and local laws.”148

There is some irony here, because Posner was absolutely insistent that there be a clear showing of animus.

Anyway, back to Baskin. After explaining why rational basis review doesn’t apply when there is a suspect class, but declining to address whether there is a suspect class, and after explaining why a class need not be suspect to receive judicial scrutiny (a decision Posner disagreed with, and was reversed by), Posner explains that neither Wisconsin nor Indiana offers a “reasonable basis” to justify the law.

We’ll see that the governments of Indiana and Wisconsin have given us no reason to think they have a “reasonable basis” for forbidding same-sex marriage.

Why “reasonable” and not “rational”? Posner cites Vance v. Bradley, a case concerning age discrimination. While it isn’t abundantly clear what level of scrutiny is being applied (the 1979 opinion is a bit murky), Justice White refers to it as “intermediate standard,” suggesting some form of heightened scrutiny. As an aside, of all the equal protection cases to cite, why this one? I’ve never heard of it, and there are so many other decisions that fit in closer (Romer, Lawrence, etc.). I suspect that the use of the word “reasonable” rather than “rational” fits the bill. Posner leap-frogs over this point, because as he discusses later, scrutiny is nothing more than “semantics.” But, “heightened scrutiny” applies.

Then, we go back to whether there is a “suspect” class, and the not-normal classification applies.

And more than a reasonable basis is required because this is a case in which the challenged discrimination is, in the formula from the Beach case, “along suspect lines.”

Posner doesn’t say there is a suspect class, but says the classification is “along suspect lines.” Again, he stops short of actually fitting the analysis into the precedents. Also, is it common in an opinion to say “the Beach case” rather than “Beach”? This is a common locution in oral arguments, but usually in a written opinion, you cite the case. (See the stream of consciousness).

What the opinion does say, in an interesting synthesis of precedents, is that discrimination based on “immutable characteristic,” with a history of discrimination, makes a classification suspect.

Discrimination by a state or the federal government against a minority, when based on an immutable characteristic of the members of that minority (most familiarly skin color and gender), and occurring against an historical background of discrimination against the persons who have that characteristic, makes the discrim- inatory law or policy constitutionally suspect. See, e.g., Bow- en v. Gilliard, 483 U.S. 587, 602–03 (1987); Regents of University of California v. Bakke, 438 U.S. 265, 360–62 (1978); St. John’s United Church of Christ v. City of Chicago, 502 F.3d 616, 638 (7th Cir. 2007); Wilkins v. Gaddy, 734 F.3d 344, 348 (4th Cir. 2013); Gallagher v. City of Clayton, 699 F.3d 1013, 1018–19 (8th Cir. 2012).

Missing here is a clear statement that gays and lesbians are a suspect class. This is what lower courts would need to proceed. It’s almost like he’s teasing this holding. The closest he gets is saying that sexual orientation is almost certainly an immutable characteristic.

And there is little doubt that sexual orienta- tion, the ground of the discrimination, is an immutable (and probably an innate, in the sense of in-born) characteristic ra- ther than a choice.

And let’s look closer at the precedents cited. In Bowen, the phrase “suspect” only appears in block quote from Lyng v. Castillo.

“The disadvantaged class is that comprised by parents, children, and siblings. Close relatives are not a `suspect’ or `quasi-suspect’ class. As a historical matter, they have not been subjected to discrimination; they do not exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group; and they are not a minority or politically powerless.

The citation to Bakke is from Justice Brennan’s opinion. Odd that there is no parenthetical clarifying that. Neither precedent fully supports those propositions.

Next, Posner explains that with suspect classes (which we can presume gays are), there is a presumption of unconstitutionality.

These circumstances create a presumption that the discrimination is a denial of the equal protection of the laws (it may violate other provisions of the Constitution as well, but we won’t have to consider that possibility).

He alludes to the fact that there may be due process problems, but doesn’t need to reach that issue.

Next, Posner jumbles together scrutiny.

The presumption is rebuttable, if at all, only by a compelling showing that the benefits of the discrimination to society as a whole clearly outweigh the harms to its victims. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326–27 (2003); United States v. Virginia, 518 U.S. 515, 531–33 (1996).

Grutter, involving race, was an application of strict scrutiny. Virginia, involving gender, was an application of intermediate scrutiny. These are different things. “Compelling showing” speaks to the government’s burden, but is not a phrase that is used in constitutional litigation. There is no mention here of tailoring (that comes later).

In the next paragraph, Posner explains why it doesn’t really matter what tier of scrutiny is being used.

The approach is straightforward but comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.

Let’s unpack this. First, scrutiny is hardly straightforward, if you follow the Court’s precedents. It is indeed wrapped in a “formidable doctrinal terminology.” Many, many decisions are wrapped around this core.

Second, Posner almost doesn’t seem to care about the Court’s actual terminology, such as “rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest.” And the rest? This case is so easy, so “straightforward,” that we need not be bogged down by such terminology. He refers to this framework, developed by the court, almost pejoratively, as “the conceptual apparatus.” Charitably, this evinces only a glancing concern for the Court’s precedents. Brutally, conceptual means it is devoid of reality. In contrast with Posner’s own actual analysis.

Third, rather than sticking to these tests, his “main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.” In other words, we are doing Posner scrutiny.

As an aside I agree with Posner here. The Court’s tiers of scrutiny are largely unhelpful, and indeed boil down to which party bears the burden of persuasion, and what ist he size of the burden. When a person’s individual liberty is infringed, I think the state should bear a strong burden to justify their actions. I’ve argued for a Coasean view of liberty. But this isn’t exactly what the Court’s cases say.

Then, Posner turns to what he sees as the “heart” of equal protection doctrine. He lists a number of questions, which have a passing familiarity with the Court’s constitutional law doctrine.

Our questions go to the heart of equal protection doc- trine. Questions 1 and 2 are consistent with the various for- mulas for what entitles a discriminated-against group to heightened scrutiny of the discrimination, and questions 3 and 4 capture the essence of the Supreme Court’s approach in heightened-scrutiny cases: “To succeed, the defender of the challenged action must show ‘at least that the classifica- tion serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.’” United States v. Virgin- ia, supra, 518 U.S. at 524 (1996), quoting Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982).

Again, the VMI case was an application of intermediate scrutiny. But if gays are a suspect class, then strict scrutiny would apply. Are gays instead a quasi-suspect class, warranting intermediate scrutiny? We don’t know. Not like any of this matters.

And next, we get to the core of Posner’s anti-jurisprudence.

The difference between the approach we take in these two cases and the more conventional approach is semantic rather than substantive.

So here we have two standards. On the one hand, we have what he calls the “more conventional approach.” Or, what I would call *binding Supreme Court precedent.* This isn’t conventional. It’s what every single judge is supposed to follow. It’s what every single judge who ruled on a same-sex case followed. But not Posner. On the other hand, we have “the approach we take.” This is the law according to Dick Posner. And what is the difference? It’s not “substantive,” even though he jumbles together tiers of scrutiny, suspect and quasi-suspect classes, and liberally cites precedents. It’s “semantic”! Semantic! Same thing, different name, right?

Posner proceeds to criticize the “conventional approach” (that is, the Court’s approach):

The conventional approach doesn’t purport to balance the costs and benefits of the challenged discriminatory law. Instead it evaluates the importance of the state’s objective in enacting the law and the extent to which the law is suited (“tailored”) to achieving that objec- tive. It asks whether the statute actually furthers the interest that the state asserts and whether there might be some less burdensome alternative. The analysis thus focuses not on “costs” and “benefits” as such, but on “fit.”

That’s right. The Court’s precedents focus on a means-ends “fit.” It doesn’t focus on a “cost” and “benefits” analysis. Only Justice Breyer loves the latter, European-style balancing framework.

That is why the briefs in these two cases overflow with debate over whether prohibiting same-sex marriage is “over- or underinclusive”—for example, overinclusive in ignoring the effect of the ban on the children adopted by same-sex couples, under- inclusive in extending marriage rights to other non- procreative couples.

Unsurprisingly, this is how the parties litigated the case–according to prevailing precedents.

But to say that a discriminatory policy is overinclusive is to say that the policy does more harm to the members of the discriminated-against group than necessary to attain the legitimate goals of the policy, and to say that the policy is underinclusive is to say that its exclusion of other, very similar groups is indicative of arbitrariness.

Nonetheless, Posner reimagines the precedents according to his own vision, of harms and benefits.

After that, there is little to no constitutional law in the decision. This is Holmesian common law reasoning, that can only loosely be called constitutional law.

The word “animus” appears once.

This suggests animus against same-sex marriage, as is further suggested by the state’s inability to make a plausible argument for its refusal to recognize same-sex marriage.

He mentions heightened scrutiny in a few places, although as I noted, never fully explains if gays and lesbians are a suspect class.

The discrimination against same-sex couples is irra- tional, and therefore unconstitutional even if the discrimina- tion is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.

Also, his equal protection analysis bleeds into his (absent) due process analysis, as there is talk of the deprivation of a right due to a classification.

We begin our detailed analysis of whether prohibiting same-sex marriage denies equal protection of the laws by noting that Indiana and Wisconsin, in refusing to authorize such marriage or (with limited exceptions discussed later) to recognize such marriages made in other states by residents of Indiana or Wisconsin, are discriminating against homo- sexuals by denying them a right that these states grant to heterosexuals, namely the right to marry an unmarried adult of their choice.

And, when finding a violation of equal protection, all discussion of scrutiny drops out:

In light of the foregoing analysis it is apparent that groundless rejection of same-sex marriage by government must be a denial of equal protection of the laws, and there- fore that Indiana and Wisconsin must to prevail establish a clearly offsetting governmental interest in that rejection.

A degree of arbitrariness is inherent in government regu- lation, but when there is no justification for government’s treating a traditionally discriminated-against group signifi- cantly worse than the dominant group in the society, doing so denies equal protection of the laws.

All of the praise of Judge Posner’s readable, persuasive decision, misses the fact that it shows only a passing concern for the Court’s precedents (which he doesn’t think much of).

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