Sep 30, 2015

Speaker Boehner’s Resignation Will Not Affect House of Representatives v. Burwell

In Modern Healthcare, Nick Bagley and I agree that the Speaker’s resignation will have no impact whatsoever on the House’s pending suit against HHS’s implementation of the ACA:

Boehner and other Republicans launched the lawsuit after they voted to approve a resolution in 2014 allowing it. That resolution vested control over the litigation in the speaker of the House, noted Nicholas Bagley, a law professor at the University of Michigan.

“Unless Speaker Boehner pulls the plug on the litigation before he resigns, it’ll be up to the next speaker to decide whether the case should continue,” Bagley wrote in an e-mail.

Josh Blackman, an associate law professor at the South Texas College of Law, also said he doesn’t think Boehner’s resignation will make a difference when it comes to the lawsuit.

“The case is U.S. House of Representatives v. Burwell, not Boehner v. Burwell,” Blackman said in an e-mail. “The House already voted to approve the legislation in 2013, and voted on it again in 2015, so the suit is authorized to proceed.”

When Nick and I agree about Obamacare, you can pretty much take that to the bank.

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Sep 30, 2015

Audio: The Process of Marriage Equality

Here is the audio recording of my presentation of “The Process of Marriage Equality” at the faculty workshop at the South Texas College of Law. The article, co-authored by Howard Wasserman, will be published this fall in the Hastings Constitutional Law Quarterly.

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Sep 30, 2015

Prop2 Class 13 – Easements II

Today we will wrap up our coverage of easements, and focus on whether easements in gross are assignable, what the scopes of easements are, and whether easements can be terminated.

The lecture notes are here.


Othen v. Roster was authored by Justice Brewster of the Texas Supreme Court.


Here a map of the property at issue in Othen, courtesy of the Dukeminier web site.



Here is a satellite photo of the Tone Survey in Cedar Hill, TX. It seems the norther boundary (Fish Creek Road) has been chopped up into many subdivisions and is now called Sandy Creek Drive.


Here is a visual representation of how access to beaches works.


The NY Times wrote about Bay Head here.


#Tanning. It’s a Jersey thing.



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Sep 30, 2015

ConLaw Class 13 – The Reconstruction Amendments

The lecture notes are here.

The Reconstruction Amendments

  • The Text, Structure, and History of the Reconstruction Amendments (1265-1266).
  • The Thirteenth Amendment (1266-1267).
  • The Fourteenth Amendment (1267-1271).
  • Slaughter-House Cases (Field, J., dissenting) (1281-1285) and (Bradley, J., dissenting (1285-1287) (Skim majority but read the dissents).
  • Notes (1288-1291).
  • Early Interpretation of Equal Protection (1292).
  • Bradwell v. Illinois (1292-1295).
  • Minor v. Happersett (1295-1301).
  • Strauder v. West Virginia (1301-1306).
  • Enforcement Powers (1306-1307).
  • The Civil Rights Cases (1307-1318).
  • Notes (1318-1322).

The Slaughter-Houses Cases

Here is a wood-cutting of the New Orleans Slaughterhouse.


Bradwell v. Illinois

This is Myra Bradwell, who sought admission to the Illinois Bar, leading to the Supreme Court’s decision in Bradwell v. Illinois.




Bradwell would become the editor of the Chicago Legal News, the first legal publication in the United States edited by a woman. The publication launched in 1868. Here is the first issue.


The Library of Congress has a copy of the first volume of the Chicago Legal News, donated by Susan B. Anthony. Even cooler, it includes a hand-written note in Anthony’s hand, which alludes to Bradwell v. Illinois.

It reads:

The first legal paper edited by a woman – Myra Bradwell – This file is from 1868 & 1869 – It was Mrs. Bradwell whose right to be admitted to the Bar of Illinois was carried up to the United States Supreme Court.  Senator Matthew Carpenter made the argument for her.

Congressional Library
Washington DC

Susan B. Anthony
Rochester – N.Y-

Jan. 1.1905


Minor v. Happersett

This is Virginia Louise Minor, who attempted to vote in an election. Her case wound its way all the way to the Supreme Court, which held in Minor v. Happersett that voting was not a privilege or immunity of citizenship.


This is the 1848 Declaration of Sentiments, authored by Elizabeth Cady Stanton, and other leading suffragists at the Seneca Falls Convention in July of 1848. Relevant to our discussions are the provisions concerning coverture, and the inability of women to own, use, and dispose of property. Among the other “”injuries and usurpations on the part of man toward woman”:

  • He has made her, if married, in the eye of the law, civilly dead.
  • He has taken from her all right in property, even to the wages she earns.
  • He has so framed the laws of divorce, as to what shall be the proper causes of divorce, in case of separation, to whom the guardianship of the children shall be given; as to be wholly regardless of the happiness of the women—the law, in all cases, going upon a false supposition of the supremacy of a man, and giving all power into his hands.


The 19th Amendment, which prevented states from denying the franchise to woman, was ratified on August 18, 1920.


Strauder v. West Virginia

Taylor Strauder, a black man, was convicted of murder by an all-white jury. Strauder challenged his conviction because West Virginia excluded all African-Americans from the jury. The Supreme Court held that this exclusion based on race violated the Equal Protection Clause.

The Civil Rights Cases

The Grand Opera House in New York CIty, formerly known as Pike’s Opera House, was located on the Norhtwest Corner of 8th Avenue and 23rd Street, in Chelsea. It was was shut down in 1960.



Maguire’s Opera House, formerly known as San Francisco Hall, was a three-story theater on Washington Street between Kearny and Montgomery in San Francisco.


I was not able to find photographs of Nichol’s Inn in Jefferson City, MO, the Topeka Inn in Topeka, Kansas, or the Tennssee Parlor Car.

This is Justice John Marshall Harlan I, who authored the solo dissent in the Civil Rights Cases.



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Sep 29, 2015

King v. Burwell and the Little Sisters of the Poor

The Daily Beast published an Op-Ed by Ilya Shapiro and me focusing on how the Court’s decision in King v. Burwell may provide an alternate ground of resolving the next contraceptive mandate case the Court will (almost certainly) take. The article is based on our amicus brief in support of the Little Sisters of the Poor. Here is a sample:

Ironically, the precedent that most supports the Little Sisters’ claim is King v. Burwell, in which the Supreme Court upheld the payment of billions of dollars of subsidies in states that declined to establish health-care exchanges. But in doing so, Chief Justice John Roberts’ majority opinion rejected the Treasury Department’s interpretation of Obamacare that gave itself such awesome power. Roberts found that Congress could not have delegated this vast authority to the IRS in an area of “deep ‘economic and political significance,’” in light of the fact that the agency has “no expertise in crafting health insurance policy.”

If the nation’s tax authority lacked the power to interpret a statutory provision regarding tax credits, then—to use the chief justice’s own words—“[i]t is especially unlikely that Congress would have delegated this decision” on crafting religious accommodations to HHS, “which has no expertise in crafting” them. To quote another recent case where the Court refused to defer to an administrative agency,UARG v. EPA (2014), here the agencies are “laying claim to an extravagant statutory power” affecting fundamental religious liberty interests—a power that the ACA “is not designed to grant.”

HHS’s regulatory incompetence prevents it from forcing the Little Sisters to be complicit in what they view as sin. If executive agencies lack the interpretive authority to craft accommodations, then RFRA (and Hobby Lobby) dictate that religious employers must be exempted from the contraceptive mandate.


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Sep 29, 2015

Fourth Annual #SCOTUS Roundup at South Texas College of Law Federalist Society with Ilya Shapiro

For the fourth year in a row (see 2012 and 2014), my good friend Ilya Shapiro visited the South Texas College of Law to join me in rounding up the Supreme Court term that was. My colleague Randy Kelso graciously accompanied our stampede. This year we discussed (in order) Yates, Inclusive Communities, North Carolina Dental, Obergefell, Reed, Walker, Elonis, Williams-Yulee, King, and Zivotofsky. It was a lot of fun. Thanks to the Federalist Society Chapter for hosting it.

Here’s the video:


And some pictures:





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Sep 29, 2015

Where’s the decision in Texas v. United States?

In Texas v. United States, the challenge to DAPA, the Fifth Circuit ruled against the federal government on their request for a stay on May 26, 2015 in a forty-page ruling. Virtually identical issues were presented to the court during oral argument on July 10, 2015. So where’s the decision? Ariane De Vogue writes at CNN that the “Legal fight over Obama’s immigration orders may outlast his presidency.” She quotes me in a few spots:

After losing in the district court, the administration appealed its case to a three judge panel on the U.S. Court of Appeals for the Fifth Circuit based out of New Orleans. The appeals court heard arguments in July — and both sides are getting impatient.

“Almost three months later, we are still waiting on a decision,” said Josh Blackman, an Associate Professor of Law at the South Texas College of Law. Blackman, working with the libertarian CATO Institute, has filed a brief in support of Texas and the other states who believe the President’s executive actions were an unprecedented expansion of executive power.

Blackmun [sic] supports comprehensive immigration reform, but he writes in the brief, “it is not, however, for the President to make such changes alone, in conflict with the laws passed by Congress, and in ways that go beyond constitutionally-authorized executive power.”

I didn’t say we “are getting impatient.” Indeed, quite the opposite. I suggested that the longer this process takes, the more likely this issue gets kicked until the October 2016 Term, and perhaps the entire case is mooted after the next presidential election.

“There is a distinct possibility that if this case is decided too late, there may not be enough time for the Supreme Court to argue and decide the inevitable appeal by June 2016,” said Blackman who added that if the case is kicked to the fall of 2016, the decision could come after the next presidential election.

Back in May I sketched out the timeline. If we get a decision in October or maybe November, the Court can hear the case this term without any sort of expedited briefing. But if the case is decided later in November, and/or Texas can obtain an extension of their deadline, absent expedited briefing, it will be virtually impossible to hear during this term.


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Sep 28, 2015

“Most Natural”

NFIB v. Sebelius (Roberts, C.J.)

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one.

King v. Burwell (Roberts, C.J.)

In this instance, the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.

Every time I teach NFIB, and I re-read the decision in its entirety, I’m still surprised by the ending. You’d think by now I wouldn’t be, but it still happens.

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Sep 28, 2015

President Bush’s Judiciary At Ten Years, and Looking Forward to 2017

At the Federalist Society’s Texas Chapters’ Conference on September 19, the final panel offered a ten-year retrospective of the Bush Administration’s judicial appointments. On the panel were Rachel Brand (who served as Associate Counsel and Assistant AG in the Office of Legal Policy), Reginald J. Brown (special Assistant to the President), Leonard Leo (Executive Vice President for the Federalist Society), and Harriet Miers (White House Counsel, and herself a Supreme Court nominee). The panel was moderated by Judge Priscilla R. Owen, whose nomination to the 5th Circuit Court of Appeals was blocked by Senate Democrats from 2001 through 2005.


This panel was important, both in terms of what it discussed from the past administration, but also what it portends for the next administration. Like with my post about Justice Alito’s remarks, I was doing my best to type in real time, and transcribe the event. Here is a summary of the discussion, which was not recorded.

First, Judge Owen asked about what are the qualities that make a good judge.

Miers answered first, and explained that she looked for “character, intelligence, and hard work. Humility was important to President Bush. He wanted individuals to serve as judges for all of the right reasons, not because it was a stepping stone, or that they could be called ‘The Honorable.’ He was intent on picking people who would do what they think is right, without regard to impact on whether they would be subject to editorial the next day. If I heard him say that once, I heard him say it all the time. He needed judges who wouldn’t react to being unpopular, who wouldn’t be afraid to dissent.” Referencing Bush’s surprise remarks earlier that morning, Miers cited “courage. To be the kind of person that President Bush was interested in considering, someone had to have courage. It does take a very special sort of courage to do what you think the Constitution requires, whether it is popular or not. Everyone likes to see nice things said about them in the newspaper. It is difficult to have not-so-pleasant comments. [JB: Miers may be speaking from personal experience here]. Persons chosen for life tenure must have the courage to do the right thing, consistent with the Constitution. President Bush wasn’t interested in someone who wanted to be legislating from the bench. It is almost trite to say that now. It had to be applied, in choosing people to be judges in President Bush’s administration.

nomineesBrand explained that she was in the Counsel’s office from the very beginning of the transition leading up to January 2001. [JB: We should not forget that due to the contested election, the race was not completed until December 2000]. Brand said “was clear to lawyers that President Book took judges very seriously. That was affirming and empowering to us. The White House was willing to spend political capital on judges, and it was a priority. It was ambitious to get a slate of judges four months after nomination.” Brand was very proud of that initial slate of nominees announced on May 9, 2001, which included Owen, Michael McConnell, Jeff Sutton, John Roberts, and Miguel Estrada.

Brown added that 10 out of the 11 judges on that first slate reflected President Bush’s “ideology of what makes a good judge.” The 11th Judge, which Brown wished he “could get back,” was Roger Gregory to the 4th Circuit. Gregory was a peace-offering to Senate Democrats

Leo said, the of the “first slate of judges, what I think impressed conservative leaders was the seriousness with which president took judicial nominations and role of the courts. That energized the conservative movement. It started with the campaign, President Bush said things other candidates weren’t saying. He reinforced it by setting up very rigorous process for vetting prospects for judiciary, and getting them confirmed. He showed a willingness to fight, speaking out when necessary. This led to good relationship between the President, President’s advisers, and the conservative movement. For the first time, there was well-organized outside coalition that was going to be investing time and talent to defend nominees of President Bush to the federal bench. None of that would have happened if president didn’t’ demonstrate seriousness that we haven’t seen in other political leaders.

Second, Judge Owen asked about the interaction between the President and the Senate.

Brand said that it was “important to understand the role that the Senate has before the point of nomination. The Senate Judiciary Committee issues blue slips. The President makes a nomination to court, and the senators from that state get a blue piece of paper, and the SJC chairman will never move forward unless both senators have returned positive slips. The White House knows that, and takes Senators views in account when making nomination. The Senator’s is considered strong for the district court. President Bush told Senators, give me at least three names, then began the process of negotiation. One Senator held a press conference with a prospective nominee, saying ‘I have nominated this person to the court of appeals.’ The Senator had not even given name to the White House. That person was not nominated. We thought President should have more discretion for courts of appeals.”

Miers added, “that sometimes Senators were very opinionated, and that made our lives difficult. And that’s not just the Democrats. Some of the Senators had strong views in our own party.”

Brown then offered some thoughts of how the Bush administration staffed the White House Counsel Office. He said, “based on their work in the Bush and Reagan administration, it was easy to staff the WH Counsel office. If you don’t staff the White House Counsel with conservative attorneys, you don’t get conservative judges. Legislative Affairs, Political Affairs, The Counsel’s Office, and the Justice Department held weekly meetings to get names vetted. There was a drive that really resulted in a lot of judges going through.  There were large chunks of times where we didn’t have the Senate. [JB: Remember Jumpin’ Jim Jeffords?] The left had an agenda. They were going to drive down filibuster from the Supreme Court to the Court of Appeals. The left did everything they could to thwart us. If we had not been persistent, I don’t think we would have had the numbers.

Leo added, “Most presidents did not have rigorous ordered process. Not till Reagan did we see systematic approach to nomination of judges. Even during the Clinton administration, the process was not as regimented as the two Bush administrations. Even now in the Obama administration, the process has so many inputs from so many directions, that process is much more chaotic. We should not take for granted success we saw in the Bush administration. It is a process we saw that was deliberate. The process was mapped out early on during the transition period. There was a thrust and parry between how much political capital would be spent on capital hill. The conservative movement got engaged at times when the Senate needed to tend to more of its business. The intensity of the administration’s judicial selection process was perhaps manifested in fact that there were senate races where judicial nominations became an issue. This became quite a hot issue in Sen. Daschle’s race. Some credit his defeat in part of this issue.

Miers quipped, “there may be individuals who would like to be judges. I would like you to reconsider this choice in favor of becoming Senators. We need both. We need to be starting now in terms of the grass roots, both support for individual who are good possible candidates, as well as support and community rallying that it will take some day.”

Brand commented that at times it was difficult to find qualified nominees for the district court. “Sometimes we had to beat the bush. We called lawyers there, judges, anyone we knew.”

Miers agreed that “it was very concerning when we couldn’t find someone who met the qualifications we needed. We called lawyers in the community, community leaders, groups like the Federalist Society. This should never happen.”

Brown explained that Alberto Gonzales (whom he referred to as “Judge”) “was the architect of the original structure that served the President very well. We looked to Federalist Society people first. But now just calling up Leonard [Leo], but looking at people in the state chapter who could tell us about people who had been appointed to state courts, or Assistant U.S. Attorneys that had the kind of preliminary credentials that would make for appointees that would be good down the line. We also reached out to faith-based groups. To the President’s credit, though political contacts had to be managed, they didn’t drive it. We picked judges who would be great judges, not judges who had just written a check.”

Leo noted that today “people don’t remember the post-nomination views of the American Bar Association. The ABA no longer had a preferred role in evaluating nominees to the bench. That is important in the pre-nomination phase. If you don’t have this imprimatur pre-nomination, you have more flexibility to seek opinions from wide varieties of sources.”

Brand added that she “was there in the counsel office when that decision was made” to stop submitting names to the ABA before a nomination was made. Brand stressed that the ABA could still evaluate a nominee afterwards, but that they played no role in the initial selection. “That was the biggest mountain made out of the smallest mole hall. There is no reason to put one private group in preferential status in selection of judicial nominees. The change was simply to not allow the ABA to rate nominees before nomination. In the Clinton administration, the White House would give the name before the nomination, and rate them. President clinton still nominated people who were rated ‘not qualified.’ All that President Bush said was you do not get preferred status. They only got post-nomination reviews. And that was only because Senator Specter wanted them to, as he said the Senate Judiciary Committee would not hold hearing until they received an ABA rating.”

In one of the few points of disagreement on the panel, Miers had different thoughts about the ABA. She thought the pre-nomination ratings were valuable as a mechanism to weed out the bad candidates, and as a method to disqualify political favorites who were not fit for the job. She explained, “The ABA to me, through the course of my legal career, several times has been beneficial, in acting to keep unqualified nominees off the bench. I am saying all this, knowing that it is not your favorite position. We’ve had people we knew would be bad choices to serve as federal choices, and the ABA process was able to make sure those individuals were never nominated. Once they are nominated, it far more difficult to stop. If we could figure out some way to have lawyers and judges say to the White House or Senator, that this person is not qualified to serve, and these are the reasons, and this is their behavior, that would be very helpful. If it is not the ABA, I wish there was some process that could take its place.” Miers added at the very end, “I wasn’t talking about our nominees.” I digress to draw attention to the elephant in the room that no one acknowledged. Miers only spoke of her experience concerning other judicial appointments, and not her own. At no point did anyone make any reference to her failed nomination. [JB: The ABA never had a chance to evaluate her nomination because it was withdrawn so quickly].

Brand voiced a strong disagreement with Miers, whose comment suggested–the last caveat notwithstanding–that the White House’s vetting may be inadequate. She said, our “process was rigorous. After the initial screening, we talked with other people about them. The Counsel’s Office recommended to the President to nominate them, preliminarily. Then the FBI does the background check. The Office of Legal Policy did the vetting, calling lawyers, speaking with opposing counsel, judges, prosecutors, everyone you can think of. And we did so in a very thorough manner. We were doing that memo internally. The ABA purports to be a neutral vetter of qualifications, but it was clearly politicized.” [JB: Remarkably, a minority of the committee thought that Janice Rogers Brown, Thomas Griffith, and Bill Pryor were “Not Qualified.”]

Brown observed that the Democrats “abused the process, both when in the majority, and after the Senate flipped. Miguel Estrada and nine other eminently qualified individuals were filibustered by Democrats. They specifically went after women an minorities that would one day be eligible for the Supreme Court, to smear them, so they would not be elevated. It was incredibly shameful. If ever there was an abuse you would want to correct, that was a principled thing to do.”

Leo offered his “own personal obser
vation” about the filibuster. “Inn 2005 there was some consideration of invoking the nuclear option. Republican senators decided not to do it, thinking that if they did it then, the Democrats may do it later.” [JB: There was a lot of laughter here.] Leonard replied, “[t]Hat tells you the story. The judicial filibuster has been a real cost in confirmations process for Republican administrations. We have the nuclear option in place now, and my own personal perspective is to keep it in place. I don’t think the politics make a whole lot of sense. I don’t think it makes a lot of sense from a constitutional standpoint. When dealing with nomination, it is a yes or no vote. You don’t have to put the process through filibuster to get permutations of legislation considered. We had an opportunity to get rid of it, but we didn’t. Now, that is the universe to maintain.”


Third, Judge Owen asked about the roles of the White House and the Justice Department, and the division of labor.

Brand, was “in the White House Counsel for the first 1.5 years, and then at the Office of Legal Policy for 4 years. The simplest way to explain it, is that Counsel and OLP worked together on lower courts. Counsel took the lead prior to nominations, and OLP took the lead after the nomination.

Leo relayed that ” it was sometimes useful for the Justice Deparmtnet to be in the nominating function, because they had a more effective ability to beat back Senators. It could be cast as a less political process if it was DOJ.”

Fourth, Judge Owen asked how Supreme Court nominations were different.

Brand explained that for SCOTUS nominations, the White House Counsel “took the lead in vetting. The process started during transition. During  the transition there was already a list being compiled. We needed to be ready on inauguration date in case something happened. All of the lawyers in the Counsel office were in charge of vetting the most viable candidate. We had to read every opinion ever written. The reports had to be refreshed over time. At OLP, I helped in vetting process too. The process was fuzzier for SCOTUS.”

Brown said “if you knew you were down to Roberts and so-and-so, had to get stuff in library form the counsel office.” [JB: John Roberts had published a number of memos as a White House counsel].

Brand explained that “When Justice O’Connor announced her retirement, they already had a lot of work down on nominees. That list was reduced to a smaller list. OLP put up extensive binders on everything you can think of. That was done at Justice–it was an extremely labor intensive process.”

Leo spoke to the process. “There is going to come a time with the Supreme Court, and Court of Appeals nominations, where very important calculations about what political cost the White House is willing to bear. If you don’t have people in the White House who have pored over process, and dedicated substantial amount of time, and if no one is invested enough for intense White House engagement when the confirmation process goes south, then there will be a problem. I always wonder whether the entire Bork process would have been different had the White House more of a driver than the Justice Department. Judge Bork writes in the Tempting of America that they had a difficult time engaging White House personnel as the confirmation became more difficult. I wonder if that different if the White House was involved earlier on in the process.”

Miers added that “we were very shocked that we were able to keep the process quiet until the announcement.” [JB: Again, the elephant in the room was that her nomination somehow remained a secret until it was announced!]

Brown relayed a hilarious story from the eve of the Roberts nomination. There was a dinner at Ted Olson’s House. [JB: Years ago, Olson used to hold an annual backyard BBQ for Federalist Society chapter leaders at his Great Falls, Virginia home. When I went in 2008, Sam Alito was chilling by the pool in a polo shirt and slacks, while Robert Bork was sipping a drink on the porch. Surreal for a 2L. Olson stopped holding those events in 2010 or so.]. Brown explained that at the dinner, each table had a leading potential nominee for the Supreme Court. Judge Wilkinson was at one table, Roberts at another. Everyone “was looking for clues of who had the inside track. We had absolutely no idea who it was. But John Roberts did not take his jacket off for the entire dinner. It was incredibly hot. It struck me as a sign that he was very nervous. It turned out that he was the one who got the pick.”

FifthJudge Owen asked what lessons we can draw for future administrations.

Miers explained, that “we did have two nominations for the Supreme Court that took a large amount of time. When that was all going on, everything else was frozen. You couldn’t make any nomination on district or circuit courts, the senate wanted to focus on SCOTUS. It took us out of making progress for much too long. We need to convince nominees that the process would be supported, and it wouldn’t result in the process like Miguel had. That would be a great step forward.”

Brand agreed, explaining “[t]he efforts to find the people who can fill the right positions begins during the transition. You need to identify candidates. There has to be an effort to talk with the Senate during the transition about judicial confirmations.”

In some of the more revealing comments of the afternoon, Leonard Leo offered “three things” to consider.

  • “First, process matters. You have to have an extremely rigorous process for vetting nominees for the bench. It had to be followed. There are a lot of pressures to walk away from the process.”
  • “Second, personnel matters. People around this table understand the stakes, and are willing to spend political capital pursuing the right slate of candidates. one of the questions I like to ask people now, is how many votes do you want for your judicial nominees. If the answer is 70, 80, or 90, it is the wrong answer. You want 51. You want someone who you know well, and others know well, but has a record to apply the constitution faithfully. You need to fight.”
  • “Third, this is a change from previous administrations. I’m not sure the “legislating from the bench” approach will be as effective a framework as it was in 2000 and 2004. What I find in the conservative movement now, people think about not just having judges who don’t create things that aren’t there, but who enforce things that are there. We should be looking for judges who understand duty and obligation, and enforce the structural constitution. I think the rhetoric in future battles needs to change. It is not just about judicial restraint. It is about judges who play a role enforcing the notions of constitutional limited government.”

Leo’s comments are very astute, and mirror points that Randy Barnett and I made in the Weekly Standard. Indeed, I think we have already seen the rhetoric shift in the second GOP debate, moving away from the cliche “judicial restraint.” During the Q&A, I asked Leo about the move away from focusing on candidates who profess a fidelity to judicial restraint, with a specific reference to the Chief Justice’s votes in the two Obamacare cases.

Leo replied, ” I didn’t say judicial restraint doesn’t matter. I said, the rhetoric and scope of attention has changed. It used to be in the conservative movement that we only focusing on judges finding things that aren’t in the Constitution. But that’s not enough of a conversation today. Sure we don’t want judges finding things that aren’t in the constitution. Granted. That is still in an issue. We just heard about Obergefell. There is also a question about enforcing the provisions in the constitution. In the conservative movement right now some of the most important issues are those where the structural constitution needs to be respected and enforced. Josh Blackman of course, very active in the Obamacare area, I assume some of what you are thinking in the structural provisions, federalism, separation of powers, etc so I think that needs to become part of the conversation. In terms of how you do it. Obviously, you try to find as much as you can from one’ s judicial record, what they’ve said about interpretation. I also think President Bush’s attention to humility was actually really important. That’s not something you can find on a piece of paper. What do you want from a judge? You want someone who demonstrates humility, that makes them understand their role in constitutional process. You also want someone who has been tried by fire at some point in their life. When you have those experiences, that enhances your ability to be independent. If you look around, at people you call great judges, they’re all smart, they all have good theories of interpretation, but they tend to be humble, had to face decision they would be rebuked for. That is kind of the way I look at it.”

This insightful panel should inform and any all discussions about the next round of judicial nominations in 2017.


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Sep 28, 2015

Prop2 Class 12 – Easements I

The lectures notes are here.

This graphic, courtesy of the Dukeminier & Krier web site, will help explain Willard v. First Church of Christ.


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Sep 28, 2015

ConLaw Class 12 – NFIB v. Sebelius (“Obamacare”)

The lecture notes are here.

National Federation of Independent Business v. Sebelius (“Obamacare”)

  • Enumerated Powers and Federalism (597-598).
  • NFIB v. Sebelius (683-711).
  • NFIB Notes (711-715).

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Sep 27, 2015

Pope Francis and Justice Kennedy on “Transcendent Dimensions”

While reading through Pope Francis’s speech on religious liberty at Independence Hall, I was struck by one very peculiar locution:

Our various religious traditions serve society primarily by the message they proclaim.  They call individuals and communities to worship God, the source of all life, liberty and happiness.  They remind us of the transcendent dimension of human existence and our irreducible freedom in the face of every claim to absolute power.

If the phrase “transcendent dimension” rings a (liberty) bell, it should. Justice Kennedy waxed eloquently about it in Lawrence v. Texas:

Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

This phrase does not seem to be used much often elsewhere. A Google ngram search found no results. Maybe someone on Pope Francis’s staff was thumbing through AMK opinions?

Update: Yvette (one of my students) writes that Pope John Paul II used this phrase in an address to the United Nations in 1995.

And yet if we make the effort to look at matters objectively, we can see that, transcending all the differences which distinguish individuals and peoples, there is a fundamental commonality. For different cultures are but different ways of facing the question of the meaning of personal existence. And it is precisely here that we find one source of the respect which is due to every culture and every nation: every culture is an effort to ponder the mystery of the world and in particular of the human person: it is a way of giving expression to the transcendent dimension of human life. The heart of every culture is its approach to the greatest of all mysteries: the mystery of God.10. Our respect for the culture of others is therefore rooted in our respect for each community’s attempt to answer the question of human life. And here we can see how important it is to safeguard the fundamental right to freedom of religion and freedom of conscience, as the cornerstones of the structure of human rights and the foundation of every truly free society. No one is permitted to suppress those rights by using coercive power to impose an answer to the mystery of man.

Justice Kennedy’s “transcendent dimension of human existence” is an almost verbatim copy of the Pope’s “transcendant dimension of human life.” That irony that Justice Kennedy is (apparently) using philosophy from the Holy Father to recognize a constitutional right to sodomy is too rich, even for me.


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Sep 27, 2015

40% of Americans, 52% of Democrats, Oppose Tax-Exemptions for Religious Organizations

One of the themes I develop in Collective Liberty is how the secularization of our society will weaken statutory protections for religious organizations.

YouGov has released a poll that reflects this secularization trend.

The American public is split right down the middle on the thorny issue of whether or not religious organizations should be exempt from taxation. 40% of Americans think that they should be exempt, while 40% think that they should not be. There is a strong partisan element to opinion on this issue, though a significant minority among both Republicans and Democrats disagree with the majority opinion of their fellow partisans. Democrats oppose tax exempt status for religious organizations 52% to 32% while Republicans support it 57% to 25%. Independents are effectively split, with 40% saying that religious organizations should not be tax exempt and 36% saying that they should be.


This trend speaks to the the thorny issue of tax-exempt status for religious organizations that do not perform same-sex marriages. Justice Kagan aptly explained during oral arguments in P that no church or temple can be forced to perform same-sex marriages–that would be a violation of the free exercise clause. But as an exchange between Justice Alito and the Solicitor General elucidated, whether such houses of worship can maintain their tax-exempt status is “going to be an issue.” Looking abroad, a think tank in New Zealand has already proposed eliminating religious organizations automatic tax-exempt status.

I don’t think this “issue” starts at the top with the IRS eliminating federal tax-exempt status. Rather, I think this begins with local municipalities voting to rescind sales and property tax exemptions–these are true lifebloods to churches, synagogues, and mosques in areas with high sales and property taxes. We are already seeing jurisdictions exclude religious organizations from supervising adoptions, because they will not place children with same-sex couples. In certain progressive enclaves, even today, I can see a city counsel, approving a measure that denies tax-exempt status to any non-profit that does not comply with the local non-discrimination ordinance. Ultimately, progressive states that have RFRAs on the books will soon repeal them (I’m looking at you Connecticut), and then we are left only with the Free Exercise clause as envisioned by Justice Scalia in Smith–which provides very little protection at all.

This isn’t even a 50-50 issue today. If a majority of Democrats today oppose tax-exempt status, that number will likely continue to grow as Obergefell becomes more settled, and the notion strengthens that the government should not subsidize to the tune of billions of dollars a year those who do not conform to prevailing societal norms.


In January, I will be speaking at the AALS Constitutional Law Panel on “Resistance and Recognition,” alongside Erwin Chemerinsky (U.C. Irvine), Charlton C. Copeland (Miami), Martha L. Minow (Harvard), and Rachel F. Moran (UCLA). Here is a description of the event.

With the Supreme Court reaching a tipping point in terms of its composition, and the Court’s opinions renegotiating the parameters of reproductive justice, racial justice and same-sex marriage under the 14th Amendment, voting rights, political equality, and the scope of federal authority relative to state authority, our goal with this program is to create a space to discuss the overall issue of resistance and recognition. What does resistance and recognition mean? Are they even possible, and if so, under what conditions? Are we limited to the forms of resistance and request for recognition pursued in the Civil Rights Era? Does resistance require direct negation of government policy, regulation, or structures? Or can/should we expand our understanding to include things like a transvaluation of constitutional memory or a reconstruction of subjectivity as a means to assert rights for recognition under the Constitution? The participants in this panel will offer a variety of perspectives on thinking about resistance and recognition under the Constitution. The larger aim of the panel is to open up a conversation about the possibilities for the formation of a discourse of resistance and recognition under the Constitution in the 21st century.

What looks to be a fascinating panel is very much in keeping with the topic of Collective Liberty.

Update: Pope Francis aptly summarizes the trend:

Until recently, we lived in a social context where the similarities between the civil institution of marriage and the Christian sacrament were considerable and shared.  The two were interrelated and mutually supportive.  This is no longer the case.


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Sep 24, 2015

Sanders, Schumer Support Repeal of Cadillac Tax. Clinton Still “Examining” It

In Hillary Clinton’s speech yesterday, she did not come out in favor of repealing the Cadillac Tax, as early reports suggested. But Senators Sanders, Schumer, Leahy, Murphy, Blumenthal, and Bennet support a bill that would do just that.

Obama administration officials have dismissed talk of repeal because they say none of the bills — including one introduced by Sens. Dean Heller (R-Nev.) and Martin Heinrich (D-N.M.) — have proposed a replacement for the estimated $87 billion in revenue from the tax.

Sanders said his bill would “strike the excise tax while demanding that repeal be paid for.” He proposed generating the revenue through “a surtax on the wealthiest people in this country,” which had been included in the House version of the Affordable Care Act.


Clinton is still “examining” the issue.

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Sep 24, 2015

#SCOTUS Meet Pope. Pope Meet #SCOTUS.

Chief Justice Roberts, along with Justices Kennedy, Ginsburg, and Sotomayor were in attendance during Pope Frances address to congress.



In a related SCOTUS news, Pope Francis visited the Little Sisters of the Poor as “a sign of support” for their opposition to the contraception mandate (I filed an amicus brief in support of the Little Sisters’ petition for certiorari).

.- Pope Francis paid a short visit to the Little Sisters of the Poor community in Washington, D.C. on Wednesday to support them in their court case over the contraception mandate, the Vatican’s spokesman revealed.

It was a “short visit that was not in the program,” Father Federico Lombardi, director of the Holy See Press Office, said at an evening press conference during the papal visit to the nation’s capital.

“This is a sign, obviously, of support for them” in their court case, he affirmed. …

It was a “little addition to the program, but I think it has an important meaning,” Fr. Lombardi said.

He added that the visit “is connected” to “the words that the Pope has said in support of the position of the bishops of the United States in the speech to President Obama and also in the speech to the bishops.”

Pope Francis, with President Obama at the White House, called religious freedom “one of America’s most precious possessions” and had hearkened to the U.S. bishops’ defense of religious freedom. “All are called to be vigilant, precisely as good citizens, to preserve and defend that freedom from everything that would threaten or compromise it,” he had said.

In response to the news of the visit with the sisters, Archbishop Joseph Kurtz of Louisville, president of the U.S. Bishops Conference, said that he was “so pleased” to hear of the visit.

“As you know the last thing the Little Sisters of the Poor want to do is sue somebody. They don’t want to sue in court,” he insisted. “They simply want to serve people who are poor and elderly, and they want to do it in a way that doesn’t conflict with their beliefs.”



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Sep 24, 2015

“The Next Justices” on the Dan Caplis Show

Earlier this week I was a guest on the Dan Caplis Show on 710 KNUS in Denver, and discussed the article I co-authored with Randy Barnett about appointing the next Justices. You can listen here:

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Sep 23, 2015

Prop2 Class 11 – Nuisance and Remedies

The lecture notes are here.

We will use this resource about the Coase Theorem in class (courtesy of Professor Frank Buckley at George Mason Law). Alas, Ronald Coase passed away in September 2013 at the age of 102.

To illustrate the Coase Theorem, we will utilize the classic example of the Fountainbleau Hotel in Miami.



Or this related case from Dallas:

The Nasher contends that the developers of the $200 million tower, completed in January, have been intransigent in refusing to modify its reflective glass skin; the Nasher has proposed louvers for the facade.

Museum officials say the garden has had to be resodded twice because of the higher temperatures created by sunlight bouncing off the glass; that some trees have burned; and that light-blocking panels were needed for the roof during a recent Ken Price sculpture retrospective.


And the owners have suggested building screens to block the sun!

Gizmodo has a great writeup of the case:

They also hired a group of designers to study the feasibility of installing a gigantic shading system to block the rays, rather than fixing the problem at the source.

This month, the architects behind the project—a New York firm called REX, which built the (fantastic) Wyly Theater near the Nasher—presented their final proposal, dubbed Surya.

It looks complex, but the concept is actually very simple: The team looked at the annual path of the “death ray” and, based on its coordinates, created a huge shading system to block it as it changes. To lessen the presence of the shade, they also devised a series of umbrella-like devices that only open up when needed. So, for most of the year, these devices look like thin tubes strung up on a massive metal frame—which is better than an opaque surface… I guess?



This is like something Mr. Burns would design.

The “umbrellas” open up during different times of the day so as not to obstruct the views.


And they follow the sun’s path through the year.



Images courtesy of, Wikipedia, and Professor Frank Buckley.

Here are the diagrams of the land from Del Webb.

In 1962:


In 1965:


Here are some articles about the Ashby High Rise.

View Larger Map

There was massive opposition to the site, which will be completed in Spring 2014 at Bissonnet and Ashby, north of Rice University.





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Sep 23, 2015

ConLaw Class 11 – Scope of Federal Powers III

The lecture notes are here.

Scope of Federal Powers III

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

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

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

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

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


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

Steward Machine Company v. Davis (1937)

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


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


Here is their modern-day image.

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

United States v. Butler

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


And some cartoons.




South Dakota v. Dole

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


Printz v. United States

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

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

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

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


Sheriff Richard Mack at the Utah Capitol.


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


More pictures of Sheriff Printz








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Sep 22, 2015

Higher Deductibles Under Obamacare May Make People Forgo Preventive Care

The New York Times reports that since 2010, a “very powerful trend” in the cost of deductibles:

Four of five workers who receive their insurance through an employer now pay a deductible, in which they must pay some of their medical bills before their coverage starts, according to Kaiser.

Those workers have seen their deductibles climb from a yearly average of $900 in 2010 for an individual plan to more than $1,300 this year, while employees working for small businesses have an even higher average of $1,800 a year. One in five workers has a deductible of $2,000 or more.

You need to read down till paragraph eight before there is a mention of the Affordable Care Act, though it is not named, referred to only as “the federal health care law.” (The moniker “affordable” would be particularly inapt here).

While the Kaiser survey examines plans provided by employers, Mr. Altman said many of the insurance policies being sold under the federal health care law through the state exchanges also rely on high deductibles to keep premiums low. Some employers also increased the size of their deductibles to reduce the higher costs associated with the law.

The law may be prompting even more changes by companies, in order to have workers shoulder more of their medical costs.

It is not surprising that when you decrease how much an insurer can charge for premiums, they will recoup the cost with higher deductibles. Indeed, the article references the rapidly-approaching Cadillac Tax. Employers will soon drop benefits, and make deductibles higher to avoid the tax:

The prospect of the so-called Cadillac tax, a new tax created under the law on high-price health plans, is causing more companies to consider changes like increasing the size of their employees’ deductibles. The tax, which is expected to go into effect in 2018 but faces widespread opposition, could change the steady increase in deductibles into a “spurt,” Mr. Altman said.

There is a cost, of course, to all of this–people will “forgo care” if the deductible is too high:

But asking employees to cover more of their medical bills through high deductibles raises questions about whether some workers, especially those with expensive, chronic conditions, are being discouraged from seeking the care they need. …

What concerns policy experts and employers is evidence that higher deductibles are making people forgo care, even when they have serious conditions. …

Forty percent of people with private health insurance whose deductible equaled 5 percent or more of their income said they had decided not to go to the doctor when they were sick or had chosen not to get a test or go to a specialist, according to the survey.

As I noted earlier today, regardless of who sits in the White House in 2017, the Affordable Care Act will remain a lingering and pressing issue.


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Sep 22, 2015

Democratic Support for ObamaCare Begins to Fracture: Clinton to Oppose Cadillac Tax

One of the points I am developing in Unraveled is that as we approach 2017, whoever is sitting in the White House will have to make serious decisions about how to alter Obamacare. The law, as it stands now, will be politically and economically unsustainable. One of the key decisions which I’ve chronicled at length focuses on the so-called “Cadillac Tax,” which puts a heavy excise on most generous health insurance plans. This will result in millions of Americans losing their policies, and being thrown onto the Obamacare exchanges. We’ve already seen some cracks forming on the left, as unions and other groups that depend on lavish health insurance plans, are pushing for its repeal. The New York Times has already editorialized in opposition to its repeal, explaining the law would be economically unsustainable without the funding provided by the Cadillac Tax.

Now Democratic-nominee Hillary Clinton has joined the fray.

Hillary Clinton will seek to align herself with ObamaCare’s successes and use it to attack the GOP on Tuesday as she begins to map out her long-awaited healthcare agenda.

The effort could also lead to a public break with the Obama administration on healthcare for the first time.

After months of delivering nothing but praise for ObamaCare, Clinton is expected to weigh in – and oppose – one of the law’s most controversial taxes: the so-called “Cadillac” tax.

If she joins her 2016 Democratic rivals in calling for the repeal of the tax on generous healthcare plans, she will distance herself from most ObamaCare supporters but also unlock key endorsements from unions that staunchly oppose it.

Clinton will drop the first details of her healthcare plan during a campaign event in Iowa on Tuesday, part of a two-day, three-state tour. Her speech will come a few weeks after hinting that she has concerns with the tax earlier this summer.

Clinton hinted earlier this summer that she was weighing a repeal of the excise tax “as currently structured,” which would charge companies if their benefits exceeds $10,200 for an individual or $27,500 for a family.

The controversial tax, which has been repeatedly delayed, is still three years away from implementation. It is increasingly drawing opposition from union groups and Democrats in areas like New England and the West Coast, where health insurance costs are higher.

“I worry that it may create an incentive to substantially lower the value of the benefits package and shift more and more costs to consumers,” Clinton wrote in response to questions from the American Teacher’s Federation this summer.


Bernie Sanders has also supported repealing the Cadillac Tax.

The article explains that Democrats remained hush about the Cadillac Tax years ago, but now that the law is settled, they can come out in opposition.

Four years ago, hardly any Democrats publicly supported repealing the Cadillac tax for fear it would spur on efforts to repeal the entire law. Now, the lobbyist believes the law is more cemented, and Democrats can afford to vocally oppose the most onerous pieces of the law.

“I think the thing that’s different now than it was four years ago is that the future of the [Affordable Care Act] is not in question. This isn’t about repealing the ACA,” she said.

Still, the Obama administration has fiercely opposed the repeal effort, arguing that there is no other way to fill the $87 million budget hole.

Eliminating the Cadillac Tax would pose a far greater funding crisis than the elimination of the individual or employer mandates–the law would lose billions of funding, and render any estimates of CBO budget neutrality an absolute farce.

Update: Fittingly, on Face the Nation, candidate Clinton repeated that the “debate over the Affordable Care Act is over.”

DICKERSON: And you’re going to talk about Obamacare this week, support it.

CLINTON: Yes, I am.

DICKERSON: What is the big new proposal you’re going to offer?

CLINTON: Well, first, let me say that it’s time that we say that the debate over the Affordable Care Act is over. The Supreme Court has twice upheld it, yet the Congress has voted more than 50 times to repeal it.

Let’s get beyond that. Enough is enough. And we need to strengthen it, not scrap it. It is the core of how we’re going to provide health care to Americans going forward, the 16 million.

But there are other benefits to it that people who are not on the exchanges are being able to take advantage of. You know, 158 million American women are no longer charged more for health care because of our gender. Young people can stay on their parents’ policies until they’re 26.

If you have a preexisting condition, insurance companies can’t shut you out. We have a lot of positives. But there are issues that need to be addressed. I’m going to address them this week, starting with how we’re going to try to control the cost of skyrocketing prescription drugs. It’s something that I hear about wherever I go. It’s part of the plan I will be rolling out in the next few days.

It isn’t. Not by a long shot.

Update: Here are the specifics from her speech:

After months of giving ObamaCare policies nothing but praise, Clinton criticized the law for the first time Tuesday, while revealing some details about how she plans to go beyond it.

“The cost of prescription drugs went up by over 12 percent last year. Meanwhile, other out-of-pocket costs are growing to, and insurance companies just keep raising the premiums,” she said. “For a lot of families, it doesn’t feel that healthcare costs are coming under control.”


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