May 16, 2016

Stevens: Crawford v. Marion County Was “Fairly Unfortunate Decision,” Because He Did Not Conduct “Extensive Internet Research”

In Crawford v. Marion County, Justice Stevens wrote for a 6-3 court, upholding Indiana’s voter identification law. In his dissent, Justice Souter employed his Posnerian research skills to conduct internet research that analyzed the burdens imposed by Voter ID laws. (Ironically, Posner wrote the 7th Circuit’s decision upholding the law–he did not use internet research at the time, but subsequently came to regret it). Justice Stevens responded to Souter’s extra-curricular research.

Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.

In remarks at the 7th Circuit Judicial Conference, Justice Stevens said he was aware of information outside the record, and laments that he did not look at it.

Stevens, who was joined by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, mentioned a dozen times in the opinion that it was based on “the record” in the case.

“I learned a lot of things outside the record that made me very concerned about that statute,” Stevens said in the conversation with Kagan and Wood. “So I had the question: Should I rely on my own research or what’s in the record?”

“And I thought in that case I had a duty to confine myself to what the record did prove, and I thought it did not prove the plaintiffs’ case. And as a result, we ended up with a fairly unfortunate decision.”

Stevens alluded to his quandary in a footnote in the opinion: “Supposition based on extensive Internet research is not an adequate substitute for admissible evidence subject to cross-examination in constitutional adjudication.”

In the conversation, Stevens noted that dissenting justice David H. Souter did not share his reluctance.

“I thought David wrote one of his best opinions, relying partly on material that was outside the record,” Stevens said.

Kagan the justice briefly became Kagan the journalist as she asked the right follow-up question after Stevens explained his approach.

“Would you do it the same way again?” she asked.

“I think I would,” replied Stevens, who turned 96 last month and mentioned that he is writing a new book. “That’s a tough question. I really don’t know for sure.”

Stevens has previously expressed his regrets of the case (see here and here).

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May 16, 2016

Feldman on House of Representatives v. Burwell

Noah Feldman’s piece on House of Representatives v. Burwell has two significant errors.

First, Feldman writes that Raines v. Byrd controls this case, because it held that “congressmen” could not challenge the Line Item Veto Act.

The congressmen who challenged the law claim that there’s no provision in the law specifically appropriating money for this reimbursement. …

First, [Judge Collyer] made new law by ruling that the House of Representatives could sue the executive branch to claim that the president was spending money that Congress hadn’t allocated.

This part should have been easy. Congressmen don’t have standing to challenge the legality of laws, a principle the Supreme Court affirmed in 1997 when it said they didn’t have standing to challenge the line-item veto.

That is correct summary of Raines, but it does not control this case. It is not “congressmen” who are suing, but the House of Representatives, which voted as a body to proceed. Indeed, Justice Stevens’s opinion in Raines “attach[ed] some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit.” That “the plaintiff here is the House of Representatives,” Judge Collyer wrote, “distinguishes this case” from Raines.  This doesn’t mean that the House does or does not have standing, but Raines is not dispositive.

Second, Feldman writes that Judge Collyer’s opinion is self-defeating:

Judge Collyer’s second error was treating the ACA as self-defeating. It makes no sense to interpret the law as though it established a multibillion-dollar subsidy but then didn’t allocate funds for it. The ridiculousness of reading the law this way simply underscores that this was a blatantly political act of judicial overreach.

It is not at all self-defeating, let alone “absurd.” Why couldn’t Congress have intended to require the government to request a new appropriation each year? Indeed, the Obama administration requested $1.4 billion for Section 1402 for its Fiscal Year 2014. After Congress said no, the Obama administration suddenly determined that there was a permanent appropriation all along. It is it really so “self-defeating” and “absurd” that this was how the White House originally interpreted the statute? Indeed, the only reason why there is a shortfall is that Congress decided not to fund it. It is not Judge Collyer’s decision that creates the shortfall, but Congress’s decision itself.

I address this argument in my piece in National Review last week:

Third, HHS warned that blocking payments to insurance companies would “yield absurd economic, fiscal, and healthcare-policy results.” Judge Collyer dispatched this argument, finding that the “results predicted by the [government] flow not from the ACA, but from Congress’ subsequent refusal to appropriate money.” If Congress does not want the government to pay insurance companies for losses suffered because of Obamacare, the court concluded, “that is Congress’s prerogative; the Court cannot override it by rewriting” the ACA. In short, paying the Section 1402 subsidies based on the 1401 appropriation “violates the Constitution. Congress is the only source for such an appropriation, and no public money can be spent without one.”

Feldman’s tell comes in the middle of the piece, where he refers to Section 1402 as a “drafting error[].”

In the real world, there’s little doubt that this was an oversight by the drafters. The law was produced and passed in haste, and drafting errors are to be expected. Courts don’t normally throw out parts of laws over technical mistakes when the purpose of the provision is clear.

Where have we heard before that the ACA included a drafting error, but the purpose was “clear.” The government and amici diligently cling to the Chief Justice’s decision in King v. Burwell to save their case.

Judge Collyer’s decision addresses the relevance of King v. Burwell, and finds that the purpose of this statute is crystal clear.

“If the statutory language is plain, we must enforce it according to its terms.” King v. Burwell, 135 S. Ct. 2480, 2489 (2015). Although the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context,” id., the statutory provisions in this case are clear in isolation and in context. The Affordable Care Act unambiguously appropriates money for Section 1401 premium tax credits but not for Section 1402 reimbursements to insurers. Such an appropriation cannot be inferred. None of Secretaries’ extra-textual arguments—whether based on economics, “unintended” results, or legislative history—is persuasive.

[In King], simply put, the statute could not function if interpreted literally; it had to be saved from itself. The problem the Secretaries have tried to solve here is very different: it is a failure to appropriate, not a failure in drafting. Congress’s subsequent inaction, not the text of the ACA, is what prompts the Secretaries to force the elephant into the mousehole. There are no inherent flaws in the ACA that keep Section 1402 payments from being paid, in advance or otherwise. None of the operative provisions becomes unworkable, as they did in King, when the relevant passage (31 U.S.C. § 1324(b)) is read plainly. . . . There is nothing in the ACA that prevents compliance. The funds simply must be appropriated.

Curiously, Feldman faults Congress for carefully comparing the statute with the Federal Government’s budgetary requests:

What you should know is that, like several of the other challenges before it, the current case arises from ingenious lawyers going over the massively long statute with a fine-toothed comb, trying to find drafting errors or other inconsistencies that would render the law unable to function.

When the executive branch asks for money, Congress says no, and then announces that it never needed the money all along, this is hardly going through it with a “fine-toothed comb” trying to “render the law unable to function.” Comparing statutes and budget requests is what analysts on the House Ways & Means Committee do. In Chapter 23 of Unraveled, I will go through the origin and history of House of Representatives v. Burwell.


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May 16, 2016

Highlights from Justice Thomas’s Commence Address at Hillsdale College

Take 30 minutes and watch Justice Thomas’s commencement address at Hillsdale College. It is truly inspirational. I offer here a few excerpts I typed out, without commentary. These will be used for the final chapter of #Unraveled.

 This has been a most difficult term at the Court. This difficulty is underscored by the sudden and tragic passing of my colleague and friend, Justice Antonin Scalia. I think it is fitting to say a few a few words about him, particularly here. Many will focus on his intellect and legal prowess. I do not demure in either case, there is so much more to the man than that. When I think of Justice Scalia, I think of the good man whom I could instinctively trust during my first days on the court, and those were challenging days. He was in the tradition of the south my youth, a man of his word, a man of character. Over the almost 25 years that were together, I think we made the Court a better place for each other. I certainly know that he made it a better place for me. He was kind to me when it mattered most in those early days. He is and will be sorely missed.

Things that were once considered firm have long since lost their vitality, and much that seemed inconceivable is now firmly or universally established. Hallmarks of my youth such as patriotism and religion seem more like outliers, if not afterthoughts.

Words actually matter, not a current newspeak. I admit to be unapologetically Catholic, unapologetically patriotic, and unapologetically a constitutionalist.

It is as thought freedom and liberty exist, wholly independent of anything we do.

This era is one in which any difference or different treatment is inherently suspect. Apparently we all deserve the same rewards, the same status, notwithstanding the differences in our abilities. It is no wonder that we hear so often what is deserved or to what one is entitled.

It is not often that one hears of our obligations or our duties as citizens, unless of course there’s talk about duty to submit to yet another new policy being suggested or proposed.

If we continue to consume the benefits of a free society, without replenishing or nourishing it, we will eventually deplete it. If we are not making deposits to replenish our liberties, then who is? Re we content to let others do the work, to let a few give the last full measure for liberty while we consume the benefits? If so, perhaps one day, we will run out of other people’s sacrifice and courage, and perhaps we will run out of courageous people willing to make the sacrifice.

This is Hillsdale College, and you are special. Hillsdale is a trustee of the heritage that finds a clear expression in the American experiment of self-government under law. The very existence of Hillsdale connotes independence. It understands that liberty is an antecedent of government, not a benefit from government.

There were the Irish nuns who believed in us and lived in our neighborhood. Small lessons such as these became big lessons for how to live our lives.

Do not hide your faith and your beliefs under a bushel basket especially in this world that seems to have gone made with political correctness.

Hillsdale College, a school that has stood fast on its principles and its traditions at great sacrifice and great cost.

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May 16, 2016

Thomas: Auer Deference on “Last Gasp,” Forces “Judicial Branch” as Agency’s “Co-Conspirator”

Justice Thomas dissented rom denial of certiorari in United Student Aid Funds v. Bryana Bible. Thomas continued to his call to overturn Auer (Seminole Rock) deference. He catalogued all of the Justice’s who have “personally driven pencils through the creature’s heart,” what Thomas refers to as the “metastasized” deference doctrine.

Any reader of this Court’s opinions should think that the doctrine is on its last gasp. Members of this Court have repeatedly called for its reconsideration in an appro- priate case. See Mortgage Bankers, 575 U. S., at ___–___ (ALITO, J., concurring) (slip op., at 1–2); id., at ___ (Scalia, J., concurring in judgment) (slip op., at 5); id., at ___ (THOMAS, J., concurring in judgment) (slip op., at 1–2); Decker, 568 U. S., at ___–___ (ROBERTS, C. J., concurring) (slip op., at 1–2); id., at ___–___ (Scalia, J., concurring in part and dissenting in part) (slip op., at 2–7); Talk America, Inc. v. Michigan Bell Telephone Co., 564 U. S. 50, 68– 69 (2011) (Scalia, J., concurring); see also Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___–___ (2012) (slip op., at 10–14) (refusing to defer under Auer). And rightly so. The doctrine has metastasized, see Knudsen & Wildermuth, Unearthing the Lost History of Seminole Rock, 65 Emory L. J. 47, 54–68 (2015) (discussing Semi- nole Rock’s humble origins), and today “amounts to a transfer of the judge’s exercise of interpretive judgment to the agency,” Mortgage Bankers, supra, at ___ (slip op., at 13) (opinion of THOMAS, J.). “Enough is enough.” Decker, supra, at ___ (opinion of Scalia, J.) (slip op., at 1).

Thomas notes that the application of Auer deference in this case is particularly egregious, because the Department of Education first articulated it in an amicus brief to the 7th Circuit!

This case is emblematic of the failings of Seminole Rock deference. Here, the Court of Appeals for the Seventh Circuit deferred to the Department of Education’s inter- pretation of the regulatory scheme it enforces—an inter- pretation set forth in an amicus brief that the Department filed at the invitation of the Seventh Circuit. For the reasons stated in Judge Manion’s partial dissent, 799 F. 3d 633, 663–676 (2015), the Department’s interpretation is not only at odds with the regulatory scheme but also defies ordinary English. More broadly, by deferring to an agen- cy’s litigating position under the guise of Seminole Rock, courts force regulated entities like petitioner here to “di- vine the agency’s interpretations in advance,” lest they “be held liable when the agency announces its interpretations for the first time” in litigation. Christopher, supra, at ___ (slip op., at 14). By enabling an agency to enact “vague rules” and then to invoke Seminole Rock to “do what it pleases” in later litigation, the agency (with the judicial branch as its co-conspirator) “frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government.” Talk America, Inc., supra, at 69 (Scalia, J., concurring).

Something tells me a Justice Garland would not agree with Justice Scalia on Auer.


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May 15, 2016

Update on Gascho v. Global Fitness Holdings (CA6)

I have blogged in the past about my role as a client in the case of Amber Gascho v. Global Fitness Holdings, LLC (see herehere, here, here, here, and here). In short, I objected to a class-action settlement based on a gym membership I purchased in 2011. On Friday, the 6th Circuit ruled against my appeal in divided 2-1 decision.

Law360 has a summary of the decision:

A split Sixth Circuit panel on Friday approved a consumer class action settlement in a case against Global Fitness Holdings LLC, saying two objections to the district court’s decision did not demonstrate that the settlement was unfair or that legal counsel’s $2.39 million fees were disproportionate to the claims paid.

The 2-1 ruling found that objectors Joshua Blackman and Robert and April Zik failed to show that the settlement contained any provisions suggesting gym members contested counsel’s fee requests or that the settlement unnecessarily required them to take part in an onerous claims process.

“Blackman protests that if a court is allowed to ‘split the baby,’ the parties can game the system by awarding members an inflated benefit then imposing an onerous process to limit claims,” the Sixth Circuit said. “Our job is to determine whether the district court’s actions were an abuse of its discretion. We do not agree with Blackman’s and the dissent’s argument that the district court erred.”

However, Circuit Judge Eric L. Clay wrote that panel Judges Damon J. Keith and Jane B. Stranch mistakenly focused on theoretical policy considerations when the more important issue was a protracted proceeding that resulted in class counsel’s requested $2.39 million fee award.

“What the majority misses in its survey of the case law and academic literature is that the court … abused its discretion in approving a class action settlement which fails to adequately protect the interests of class members and unduly enriches class counsel at the expense of their own clients,” Clay wrote.

My attorney Adam E. Shulman of the Center for Class Action Fairness offered this statement:

“We are disappointed by the majority opinion but enthused by Judge Clay’s compelling dissent,” Schulman said in an email. “We are contemplating our next steps, whether that is a petition for Sixth Circuit en banc review or a certiorari petition to the Supreme Court.”

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May 13, 2016

Judge Collyer’s Dig Against Congressional Brief Explaining What “Everyone” Understood in 2010

One of my long-standing pet peeves is the so-called congressional brief that try to persuade a court of what Congress really meant. I expressed these concerns when Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama (see herehere, and here), and when Senator McConnell intervened in the recess appointment case (here). I noted similar objections when 6 Democratic members of Congress, who were involved in steering the Affordable Care Act through the legislative gauntlet in 2009 and 2010, filed a brief in Halbig v. Sebelius.

In that case, Democratic members of Congress, their staffers, and other people involved in the process submitted briefs insisting that Congress really didn’t mean to limit subsidies to state exchanges. I am highly skeptical of these briefs, as they represent post-enactment legislative history advanced as a form of advocacy for a court case. If they were so sure what Congress intended, they should have written the statute differently–you know like “established by the state or federal government.” More to the point, as I will discuss in Unraveled, no one in Congress paid any attention to this issue at all, so their johnny-come-lately statements are not helpful. The Supreme Court’s decision in King didn’t even wade into legislative history.

In Judge Collyer’s decision in House of Representatives v. Burwell, ruling that the President was illegally spending money that was never appropriated, she took a well-deserved dig to a brief filed on behalf of eleven Democratic members of Congress. Amici argue in at least 8 tell us what “everyone” understood.

In short, the law reflects what everyone understood at the time: the premium tax credits and the cost-sharing reductions are both integrally connected and critical to the effective operation of the law.

Subsequent actions by Congress only confirm what everyone understood at the time the law was enacted.

Likewise, plaintiff’s interpretation conflicts with subsequent congressional action that confirms what everyone understood at the time: the ACA provides that the premium tax credits and cost-sharing reductions are commonly funded by the permanent appropriation in 31 U.S.C. § 1324.

Plaintiff’s argument to the contrary is wrong, and it is inconsistent with the way everyone in Congress understood the law to operate at the time it was enacted.

That Congress did not do so only underscores that everyone involved in the drafting of the ACA understood that such future appropriations would be unnecessary because those payments would be made out of the permanent appropriation provided in 31 U.S.C. § 1324.

Finally, another provision of the ACA also confirms what everyone at the time understood.

As everyone understood at the time the law was enacted and as the law itself makes clear, those payments were funded out of the permanent appropriation provided in 31 U.S.C. § 1324.

In sum, the text and structure of the ACA confirm what everyone in Congress understood at the time the law was enacted and in the years since: the cost-sharing reductions, like the premium tax credits, are critical to the effective operation of the ACA, and under the legislative plan established by the ACA, both were to be paid out of the same permanent appropriation, 31 U.S.C. § 1324.

I appreciate the rhetorical point, but eleven members of Congress–from Nancy Pelosi to Sander Levin–does not tell us what “everyone” understood when the ACA was being developed. What tell us what “everyone” understood–and voted on–is the text of the statute.

Judge Collyer agreed:

The Court thanks amici Members of Congress for their brief. See Br. Amici Curiae Members of Congress [Dkt. 63]. However, their recollections as to what “everyone at the time understood,” id. at 22, are anecdotal and not evidentiary.

Pelosi, in particular, has some chutzpah in telling us what “everyone understood,” as she famously said we have to pass the bill to find out what’s in it. Now that a judge has looked at it, we know what’s in it.

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May 13, 2016

New in National Review: “The House Stands Up to Unconstitutional Obamacare Payments”

National Review has published my piece on House of Representative v. Burwell. The bulk of the piece focuses on the Court’s meticulous analysis of the underlying statutory issue. Simply stated, the government does not have a leg to stand on because there is no appropriation for 1402 subsidies. Here, I’d like to flag my discussion of standing, and perhaps suggest to others that conservative’s long-standing preference for rigorous standing rules may warrant a second look for separation-of-powers challenges.

Here are the highlights:

Time and again, the Obama administration has modified, delayed, and suspended the law through unprecedented executive actions. The government’s most frequent defense is denial: Because no one is injured by their actions, no one has “standing” to challenge the actions in federal court. However, once forced to defend its policies, the government’s specious arguments quickly crumble.

In 2014, the House of Representatives filed a lawsuit alleging that the executive branch spent money without a congressional appropriation. The government’s first line of defense was to argue that the House lacked standing, because it was not injured. But the administration steadfastly refused to address how HHS was spending money that Congress chose not to appropriate. During a hearing last year, Judge Rosemary Collyer expressed her frustration with the government’s unwillingness to justify its actions. She chided the Justice Department lawyer, “You can’t just shake your head and say no, no, I don’t have to answer that question.” When he bobbed and weaved, Collyer charged: “This is the problem I have with your brief: It’s not direct. It’s just not direct. You have to address the argument that [the House] makes and you haven’t.”

In September 2015, the court found that the House was injured, and had standing to sue. Judge Collyer wrote that the “constitutional trespass alleged in this case would inflict a concrete, particular harm upon the House for which it has standing to seek redress in this Court.”

Conservatives have long advocated for a rigorous standing doctrine as a means to prevent “activist” courts from interfering with the democratic process. Indeed, Justice Antonin Scalia viewed standing as “a crucial and inseparable element of the separation of powers.” He wrote that making it harder for plaintiffs to bring constitutional challenges in federal court would reduce the “overjudicialization of the processes of self-governance.” The late justice’s approach is sound in theory, but risky in fact. In recent years, rather than protecting the separation of powers, the standing doctrine has served to insulate ambitious presidents as they run amok across what James Madison referred to as “parchment barriers.”

Judge Collyer’s decision to grant the House of Representatives standing has exposed an illegal expenditure of billions of dollars, without even the pretense of an appropriation. Relatedly, the Fifth Circuit’s decision to grant the state of Texas standing to challenge President Obama’s immigration actions has shined a light on an unprecedented act of executive lawmaking. Cramped standing doctrines would allow these abuses of presidential power continue without any scrutiny. Government lawyers can simply walk into court, and shake their heads no. When the president is willing to spend money without Congress’s permission, or rewrite laws when Congress refuses to, the traditional political process has collapsed. The courts must force the executive branch to explain its actions, and abide within its broad — but constrained — sphere of power.

Later in his tenure, Justice Scalia may have started to reconsider his once-strict views on standing doctrine as it relates to the separation of powers. In National Labor Relations Board v. Noel Canning, the Court unanimously invalidated President Obama’s illegal recess appointments. Justice Scalia concurred in judgment, but his opinion read more like a dissent. He lamented that the Court squandered a rare opportunity where parties had standing to raise a separation-of-powers challenge. “It is not every day,” Scalia wrote, “that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions.” He urged the Court to “take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment.” Judges should think twice about looking askance at abuses of the rule of law before sticking their head in the sands of standing doctrine.

I think this case, as well as U.S. v. Texas, should offer a moment of pause where we can reconsider our standing doctrine.

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May 12, 2016

Alexander Hamilton on the Election of 1800: “If we must have an enemy at the head of the Government, let it be one whom we can oppose”

When I wrote the article in National Review arguing that Donald Trump is utterly unqualified to take the constitutional oath of office, I fully expected to receive a torrent of comments to the effect of “If you don’t vote for Trump, or vote for a third party, you are voting for Hillary Clinton, and she would be even worse on the Constitution and the Suprem eCourt.”

I’m reminded of a letter Alexander Hamilton wrote to Theodore Sedgwick concerning the election of 1800 between Thomas Jefferson and John Adams. Hamilton loathed Jefferson, but he could not bring himself to vote for Adams.

“For my individual part my mind is made up. I will never more be responsible for him [Adams] by my direct support—even though the consequence should be the election of Jefferson. If we must have an enemy at the head of the Government, let it be one whom we can oppose & for whom we are not responsible, who will not involve our party in the disgrace of his foolish and bad measures. Under Adams as under Jefferson the government will sink. The party in the hands of whose chief it shall sink will sink with it and the advantage will all be on the side of his adversaries.”

I think these words are particularly apt for our present situation.

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May 12, 2016

10 Tweets why Donald Trump cannot be trusted to “preserve, protect and defend the Constitution of the United States.”

To promote my National Review article, Donald Trump’s Constitution of One, I summarized in ten tweets why he is utterly unqualified to take the Constitutional oath.

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May 12, 2016

New in National Review: Donald Trump has Proven Himself Unqualified to “Preserve, Protect, and Defend the Constitution.”

National Review has published my essay explaining, in great detail, why Donald Trump’s constitutionalism poses a critical threat to the rule of law. He has already promised us he will violate the Constitution and domestic law. He shows absolutely no awareness of what the separation of powers are, and how that could stop him from accomplishing terrific things. Throughout his entire career, he has repeatedly used the courts to silence dissent, seize property, and evade creditors–all for his personal gain. I also address one of the most potent rejoinders: that we need Trump for the Supreme Court. As I explain in the article, even if Trump actually believes what he is saying now (who knows?), there is no guarantee he will actually listens to outside advice. Here is the introduction:

On January 20, 2017, Chief Justice John Roberts will administer the oath of office to the 45th president: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Donald Trump is utterly unqualified to keep this solemn pledge to our most fundamental law. We know this because in winning the nomination, Trump has already promised that he will knowingly break the law and violate the Constitution. ‘

Free speech? He will “open up the libel laws” to allow public officials to sue the media, and use the Federal Communications Commission to fine critics. Private property? To Trump, eminent domain is a “wonderful thing” and is not actually “taking property” because the owner can move “two blocks away.” Faithfully executing the law? His harebrained scheme to make Mexico pay for the border wall ignores the clear text of a statute and unilaterally prohibits foreign commerce. Serving as commander in chief? Trump has already pledged that he would violate international treaties and domestic law. The military “won’t refuse” his illegal orders. “Believe me,” he promised. Protecting our national security? Trump has lauded FDR’s internment of Japanese Americans, one of the darkest hours in the history of our Republic.

And what about the Supreme Court? Assuming he keeps his promise to appoint conservative jurists — and that this promise is not merely a negotiating tactic — Trump’s approach would likely mirror that of George W. Bush: appoint justices who will defer to bold assertions of federal power. Judicial minimalist, thy name is John Roberts. These are the unconstitutional things Trump has told us he will do. I shudder to think of the trump cards the boardwalk emperor is holding close to his vest. For Trump, courts are merely a venue to silence critics, seize property, and evade creditors through bankruptcy protections. At every juncture, Trump uses and abuses the legal process to aggrandize his own personal power, bragging that “on four occasions I have taken advantage of the [bankruptcy] laws of the country.” Taking advantage of the laws aptly summarizes his approach to the law. Perhaps this makes him a shrewd businessman, but this ethos — and his promises to continue such egregious behavior — renders him ineligible to “preserve, protect and defend the Constitution of the United States.”

I tried as best as I could to keep this argument grounded in legal principles, and only focused on the most egregious, clear-cut statements Trump has made that reflect a stunning ignorance of the law. There are many, many others that I did not include.

For purposes of full disclosure, as I note in the piece, I previously supported the campaigns of Senators Rand Paul and Ted Cruz.

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May 10, 2016

Clinton Supports Public Option

Throughout the debates over the Affordable Care Act, one of President Obama’s largest setbacks was the defeat of the public option. That is, people could effectively buy into Medicaid before the age of 65. Republicans opposed the public option, because they argued that the government could underprice all of the insurance companies, squeeze them out of the market, and put us on the road to singlepayer. Democrats, though they would never say it aloud, wanted the public option for that precise reason. The public option is merely a layover on the way to singlepayer.

Now, with the nomination in hand, Secretary Hillary Clinton has announced her support for the public option. The Times reports:

For months during the Democratic nominating contest, Hillary Clinton has resisted calls from Senator Bernie Sanders to back a single-payer health system, arguing that the fight for government-run health care was a wrenching legislative battle that has already been lost.

But as she tries to clinch the nomination, Mrs. Clinton is lurching to the left on health care and this week took a significant step in her opponent’s direction, suggesting that she would like to give people the option to buy into Medicare.

“I’m also in favor of what’s called the public option, so that people can buy into Medicare at a certain age,” Mrs. Clinton said at a campaign event in Virginia on Monday.

Mr. Sanders calls his single-payer health care plan “Medicare for all.” What Mrs. Clinton proposed was a sort of Medicare for more.

If elected, Clinton push for this in 2017. The presumptive Republican nominee used to support single payer, so who knows.

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May 10, 2016

Notes from Judge Garland’s Questionnaire

Today, Chief Judge Garland submitted a questionnaire to the Senate Judiciary Committee. Note, that the Committee didn’t ask him to complete one. As best as I can tell, he simply completed the same questionnaire used by Justice Kagan. In any event, there are a few interesting bits of information.

First, he sketches out (in some detail) the process that led to his nomination after Justice Scalia’s passing on February 16:

On February 29, 2016, I was called by Neil Eggleston, White House Counsel, and Brian Deese, Senior Advisor to the President, to ask whether I was willing to be considered for nomination as an Associate Justice of the Supreme Court. Later that day, I was called by Michael Bosworth, Deputy Counsel to the President; Sarah Baker, Associate Counsel to the President; and Janet Kim, Deputy Associate Counsel to the President. Between that day and the day of my nomination, I had frequent contact with those individuals, as well as occasional contact with Eric Schultz, Principal Deputy Press Secretary; Jacek Pruski, Principal Deputy Associate Counsel to the President; Rakesh Kilaru, Associate Counsel to the President; and Zealan Hoover, Special Assistant to the Senior Advisor to the President. On March 4, I met with Mr. Eggleston, Mr. Deese, and Mr. Bosworth. Later that day, I also met with Ms. Kim and Mr. Pruski. I was interviewed by the President on March 9. On March 14, 2016, the President called to say that he intended to nominate me to the Supreme Court.

Second, Judge Garland “outs” his unsigned Harvard Law Review notes (these were probably in his Circuit-court questionnaire):

 Commercial Speech, Supreme Court, 1975 Term, 90 Harv. L. Rev. 142 (1976) (collaborative student note).

State Action Exemption and Antitrust Enforcement Under the Federal Trade Commission Act, 89 Harv. L. Rev. 715 (1976) (collaborative student note).

Third, he was a research assistant to Charles Nesson from 1975-77, although there he does not list any publications from Nesson that he contributed to. That does not surprise me. He does list several pieces he edited as a research assistant for Phillip Areeda, as well as note that he worked on Justice Brennan’s famous article about state constitutional law.

Fourth, for the last few years, he has hosted the Yale and Harvard Chapters of the American Constitution Society at the D.C. Circuit to answer questions. He does not include any notes or remarks from those visits.

Fifth, he has done a number of events with the Federalist Society, including a panel at the National Lawyers Conventions in 2012, 20082007, and 2005.

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May 8, 2016

CJ Roberts: Marshall’s Decision in Marbury v. Madison “was the epitome of restraint.” Huh?

Robert Barnes reports on the Chief Justice’s recent speech in Arkansas, where he offered a flawed recounting of one of the most misunderstood Supreme Court decision of all time: Marbury v. Madison.

That separation, Roberts said, is also the lesson to be learned from former chief justices John Marshall — “the greatest hero of our profession” — and Roger B. Taney — “the greatest failure.”

Marshall’s 1803 opinion in Marbury v. Madison established that it is the judiciary’s exclusive province to “say what the law is.” But the genius of Marshall’s opinion, Roberts said, was its finding that the court lacked the power to grant William Marbury’s commission as a justice of the peace.

The decision “was the epitome of restraint,” Roberts said. Marshall said “this is up to Congress to resolve.” He diffused the conflict “by staying out of it.”

Marshall’s decision in Marbury was the “epitome of restraint”? Let me tick off at least five reasons why that statement is flawed.

First, the fact that Marshall even participated in Marbury was perhaps one of the greatest breaches of judicial ethics until Abe Fortas warmed a seat. Marshall should have recused because he was the person who failed to delivery Marbury’s commission on time! Marshall later recused in Martin v. Hunter’s Lessee– because he owned land in Northern Virginia–so he was familiar with the principles of recusal.

Second, if indeed Congress could not expand the original jurisdiction of the Supreme Court, the Court should have issued a one sentence opinion dismissing the case for lack of jurisdiction. How in the world is it “the epitome of restraint” to write a lengthy opinion articulating a constitutional theory of judicial review, when the Court lacked jurisdiction. (Marshall did not create judicial review–read Federalist 78 for starters). This ought to help you understand the Chief Justice’s decision to spend 30 pages writing about the commerce clause in NFIB, only to turn around and rewrite the penalty as a tax.

Third, Marshall (most likely) misread Article III, Section 2, which provides:

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Nothing in the text of the Constitution limits the Court’s original jurisdiction to those heads (ambassadors, public ministers, states as a party, etc.). The Vesting Clause of Article III vests the entire judicial power in the Supreme Court:

The judicial Power of the United States, shall be vested in one supreme Court.

I read the Exceptions Clause to suggest that Congress could remove cases from the Court’s original jurisdiction, which implies that Congress could have added to it in the first place. I admit this is not a clear cut issue, but if we are talking about “restraint,” certainly the Court could have interpreted the Constitution in a more flexible way so as not to unnecessarily invalidate the statute.

Fourth, recall that the Judiciary Act of 1789 was one of the first statutes enacted by the first Congress–many of those Representatives and Senators participated in the drafting and ratification of the Constitution. You would think, out of an act of “restraint,” such an august group would be entitled to a due measure of deference when the text of the Constitution does not compel the holding in Marbury.

Fifth, I’m not even convinced that Section 13 of the Judiciary Act of 1789 even purports to expand the Court’s original jurisdiction. Here is the relevant section:

The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.

I think the best way to read this provision is that in cases where the Supreme Court already had jurisdiction, it could issue writs of mandamus. The statute did not attempt to expand the Court’s original jurisdiction. Now, this wouldn’t have helped William Marbury–his appeal would still be dismissed–but the Court didn’t need to invalidate an act of the First Congress, if the text did not so clearly compel that result.

Tell me how on earth this is the “epitome of restraint”: a Justice who should have recused misreads the text of the statute and the Constitution, to invalidate an act of the First Congress, in a case that should have been dismissed for a lack of jurisdiction. These “twistifications” are enough to make your head spin. But this is whom law students venerate? Count me out.

If Marbury v. Madison was truly the epitome of restraint, it should have looked something like this:

Per curiam. Due to a lack of jurisdiction, the writ is dismissed.

Marshall, C.J., recused.


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May 5, 2016

Stevens: Rehnquist and I proposed allowing retired Justices to serve during #SCOTUS Vacancy

Justice Stevens–who has neither officially retired, nor hears cases on the Circuit Court–continues to offer his opinion. During a discussion with Marcia Coyle in New York–after excoriating the Senate for not holding a hearing for Judge Garland–JPS drops this chestnut which I hadn’t heard before.

Asked if there was anything Chief Justice Roberts could do now to fill the vacancy temporarily, perhaps by calling him or another justice out of retirement while the Senate gets its act together, Stevens said he wasn’t sure if there was a legal mechanism available. (Retired justices do sometimes fill in on lower federal courts.) But he recalled a time that he and the late Chief Justice Rehnquist proposed a rule to do just that in the event of an unforeseen Supreme Court vacancy.

“We both were in favor of it, but nobody else on the court was,” Stevens said, to laughter from the audience.

That’s news to me. To be precise, Stevens does not mean Justices who engaged in a full retirement–that is stepped down from their Article III commission pursuant to 28 U.S.C. 371(a). Rather, he means “retired” for purposes of 28 U.S.C. 371(b), which allows Judges to hear a reduced case load under so-called “senior-status.” Query how Stevens, who has never heard a case by designation, but maintains chambers at the Court, and has a law clerk, is in senior status? The short answer–from what I have gathered–is that the Chief Justice approved this arrangement under 28 U.S.C. 371(e)(1).

In any event, JPS is not interested in serving, and DHS has already headed for the hills:

Some have argued that the Supreme Court is required by law to have nine active justices. But even if Roberts interpreted that to mean he could call on a retired justice to serve, Stevens might not be so amenable to the idea.

“I would say no,” the 96-year-old demurred. “I’d reserve the right to say no.”

The third living retired justice, David Souter, remains active as an occasional circuit judge but shuns the public spotlight. He is unlikely to step forward with any comment about the Supreme Court’s current troubles.

“From what I know of Justice Souter, he’d probably have a backpack packed and be headed for the White Mountains,” Coyle said.

By the way, I apologize for the blogging slow down the past few days. This past few days have been, well, interesting. In addition to finalizing edits on the book, I have also written a few longer pieces relevant to current events, which you should see shortly.

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May 2, 2016

Walsh Reviews “The Process of Marriage Equality” on Jotwell

At Jotwell, Kevin Walsh reviews my co-authored article with Howard Wasserman, The Process of Marriage Equality. I am grateful to Kevin for his thoughtful analysis in Process Failure on the Road to Obergefell.

Here is the introduction:

In The Process of Marriage Equality, Josh Blackman andHoward Wasserman provide a chronicle and critical assessment of the judicial decisions about procedure, jurisdiction, and remedies through which the federal courts moved from United States v. Windsor to Obergefell v. Hodges. It is an essential article for understanding how the process unfolded.

The picture painted by the authors is not a pretty one. Some of the procedural decisions come out looking somewhat shabby, and the judges who made them possibly partial. Blackman and Wasserman do not always say so squarely, but the best explanation for some of the procedural misadventures they chronicle is likely found in partial judicial strategery: Procedural monkeying made the underlying substantive right more likely to stick, which is what the judges wanted because they were partial to the plaintiffs (and similarly situated couples) seeking it.

And the conclusion:

All of us now are still too close to the process of this particular constitutional change to have the perspective that comes with the distance of many years. But the chronicle that Blackman and Wasserman provide will remain valuable for future observers who possess such a perspective. Whether those observers viewObergefell more like Brown or more like Roe, the record of the process that led toObergefell will remain. As one who largely agrees with Blackman and Wasserman’s critical assessments—if anything, I would be more critical—I suspect that this record is not likely to look any better with age.

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May 1, 2016

A Sensible Measure from the Brady Campaign to Reduce Mass Shootings: The Media Should Stop Naming The Killers

One of the most under-discussed aspect of mass shootings is the so-called “copycat effect.” The deranged individuals who seek to inflict such mass carnage often worship and idolize those homicidal maniacs who came before them. One solution to clamp down on these killings is one our sensationalistic media is least interested in: stop broadcasting the name and photograph of the killers!

For example, Sun News–dubbed the Fox News of Canada–exhibited great self-restraint in reporting on a violent shootout up north.

After a shooter murdered three Royal Canadian Mounted Police officers and left two others in critical condition in New Brunswick, the Canadian network refused to show his name or picture. The network ran an editorial Friday to give the reasoning behind the decision.

“It’s easy to report on the life of the killer, to scour his deranged Facebook page, to speculate about motive, but doing so could actually encourage the perception that his heinous acts are somehow justified,” the editorial reads. “We will not help give this killer his blaze of glory.”

Many shooters express a desire for attention or fame before their killings; the two Columbine shooters hoped Steven Spielberg or Quentin Tarantino would make a film about them. In the wake of mass shootings, media outlets descend on a community and seem to barrage the airwaves with details about the perpetrators — what they said on social media, how they dressed and what video games they played.

“With the unwitting cooperation of 24/7 media, he will become a national villain,” Vox‘s Ezra Klein wrote about the UCSB shooter two weeks ago. “And other sick young men will see him get the renown in death that they have have never been able to receive in life.”

This is exactly the right approach, but as I’ve discussed here and here, the American media has no interest in exhibiting such self-restraint. Indeed, the nonstop wall-to-wall coverage of mass shootings–with a focus on who the killer is, what his social media profiles say, and how his manifesto reads–helps to enable the next generation of shooters.

In a rare instance of agreement, the Brady Campaign has come out against this media sensationalism:

Researchers studying the phenomenon of mass shootings are increasingly convinced that these events can be explained through the metaphor of viruses — someone sneezes, the germs spread, others get infected, and so on.

Mass shooters intensely study their forbears. They often reference each other in their online ramblings and attempt to honor — or surpass — them in their own rampages. In this metaphor, social media and news organizations are spreading the germs.

A common trait among mass murderers is the desire to achieve immortality. Deranged individuals who plan mass shootings often glamorize previous massacres, and seek to emulate those murders. The murderer at Newtown maintained a “score sheet” of previous mass murders. The Columbine shooters hoped that Quentin Tarantino would make a movie about them. The shooters at Virginia Tech and Columbine, in their manifestos, made explicit references to earlier shootings, and sought to inspire other mass-murders.

Brady urges the media to reconsider their breathless coverage of these tragedies:

Until the news media agrees to stop naming mass shooters, their notoriety will continue to spread, particularly to disturbed people susceptible to those images.

To that end, the Brady Campaign’s effort includes a PSA and an online petitionto encourage media outlets to stop using the names and images of shooters.

“The media also has a role to refrain from memorializing monsters by splashing the names and faces of shooters all over television, newspapers, and the Internet,” Gross said.

I couldn’t agree more. Studies show that when the media deliberately decreases coverage of suicides, the rate of suicides drop. Likewise, media coverage of celebrity suicides increase suicides. NIH has published guidelines about media coverage of suicides.

This is a conversation the media should take up, considering how serious they are about stopping and prevent mass shootings. Gun control is not the only avenue.

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Apr 29, 2016

Holder: Covington Hired Me, Knowing They Would Lose A Big Bank Client. Cf. Paul Clement and King & Spalding

Former-Attorney General Holder spoke at Georgetown about his return to private practice at Covington & Burling. Tony Mauro reports that a “big bank” told Covington that they would have to drop the firm if Holder was hired. The firm didn’t care, and hired Holder anyway.

He also revealed that Covington may have lost a client because the firm hired him back.

“Big banks are not beating down my door” for him to represent them, Holder said. “One big bank went to Covington and said, ‘If you hire this guy, that is going to put at risk the relationship between this firm and this bank.’ ”

Holder went on to say that the firm’s chairman, Timothy Hester, to his credit, said, “I guess we’re not going to have a relationship anymore, because he’s coming back to Covington.”

Compare this with how King & Spalding treated Paul Clement when he was retained to represent the House of Representatives in United States v. Windsor.

Instead of standing by Clement, who at the time was already one of the top Supreme Court advocates, and who had already retained a client, the firm withdrew from the matter. Clement promptly left the firm, writing that he resigned “out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters . . . When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.” Clement then began his illustrious service at Bancroft.

Dahlia Lithwick wrote at the time:

Human Rights Campaign, the gay rights advocacy group that had been agitating against Clement’s defense of the law, is happy to claim responsibility for pressuring the firm to abandon its representation. The group indicated that while it did not pressure other clients to leave the firm, it did “contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.” Fred Sainz, a spokesman for the Human Rights Campaign, explained: “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.”

Tony Mauro reported:

Pressure from within King & Spalding — as well as from some of its clients — were said to be factors in Clement’s exit.

One firm dropped a major bank as a client, rather than refuse to hire the former Attorney General, who had not engaged in any attorney-client relationships yet. Another firm dropped a lawyer–the former Solicitor General–after he had already engaged in an attorney-client relationship. One firm was willing to lose a client to hire an attorney. Another firm would rather withdraw from a matter, and let an attorney go, to avoid alienating clients. Go figure.

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Apr 29, 2016

Chief Justice Roberts Makes Appearance in Anti-Trump Super PAC Ad

In the spot, Hillary Clinton goes the full William Henry Harrison, and takes the oath without an overcoat. Let’s hope this time the Chief gets the oath right!


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Apr 29, 2016

Instant Analysis: Association of American Railroads v. U.S. Department of Transportation (CADC)

Last March, the Supreme Court decided Department of Transportation v. Association of American Railroads. The case raised all sorts of constitutional challenges to how Amtrak can set “metrics and standards” that affect its competitors. Writing for eight Justices, Justice Kennedy found that Amtrak was a governmental entity, and remanded to the D.C. Circuit whether the “metrics and standards” violate the separation of powers and the appointments clause. Justice Alito issued a vigorous opinion raising several other constitutional questions, including whether there is an appointments clause violation, the non-delegation doctrine, and other admin-law abuses.  Justice Thomas’s concurring opinion went the full Hamburger, and would have voted to reconsider the development of administration law since the Pope annulled Magna Carta.

On remand from the Supreme Court, a D.C. Circuit panel of Judges Brown, Sentelle, and Williams ruled against Amtrak–in an absolutely fascinating opinion. The Court finds not only a violation of the appointments clause–following Justice Alito’s lead–but also finds a due process violation under the precedent of Carter v. Carter Coal. Judge Brown’s opinion–which is almost certainly going to be subject to an en banc petition–is worthy of a careful study.

Here is the introduction of her opinion:

For the freight operators who challenged PRIIA, however, that decision left three questions unanswered. Conceding Amtrak’s governmental status, the operators— represented by the Association of American Railroads—ask: Does it violate due process for an entity to make law when, economically speaking, it has skin in the game? Does it violate the Appointments Clause for Congress to vest appointment power of a principal officer in the Surface Transportation Board? And is a government corporation whose board is only partially comprised of members appointed by the President constitutionally eligible to exercise regulatory power? We decline to reach the latter question, but we side with the freight operators on the former two. We conclude PRIIA violates the Fifth Amendment’s Due Process Clause by authorizing an economically self-interested actor to regulate its competitors1 and violates the Appointments Clause for delegating regulatory power to an improperly appointed arbitrator.

Judge Brown’s opinion begins with a tribute to Magna Carta, and its influence on our Due Process Clause:

No clause in our nation’s Constitution has as ancient a pedigree as the guarantee that “[n]o person . . . shall be deprived of life, liberty, or property without due process of law.” U.S. CONST. amend. V. Its lineage reaches back to 1215 A.D.’s Magna Carta, which ensured that “[n]o freeman shall be . . . disseised of his . . . liberties, or . . . otherwise destroyed . . . but by lawful judgment of his peers, or by the law of the land.” Magna Carta, ch. 29, in 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). …

Curbing the misuse of public power was the aim of the Magna Carta, and the Supreme Court has consistently concluded the delegation of coercive power to private parties can raise similar due process concerns.

To resolve this case, Judge Brown turns back to a pre-1937 precedent, Carter v. Carter Coal.

The abstract legal question at the heart of this case is whether it violates due process for Congress to give a self- interested entity rulemaking authority over its competitors. The Supreme Court has confronted the question only once. See Carter v. Carter Coal Co., 298 U.S 238 (1936).

In case you were wondering, the due-process component of Carter v. Carter Coal was never overturned by the Supreme Court. As we learned in NFIB v. Sebelius, Bailey v. Drexel Furniture and other pre-switch-in-time cases–no matter what the professoriate may say– are still on the books. (I actually researched Carter v. Carter Coal for the proposition of shareholder derivative standing, so was familiar of its ongoing validity).

In a sentence that must make the blood boil of all post-New Dealers, Judge Brown writes:

We conclude, as did the Supreme Court in 1936, that the due process of law is violated when a self-interested entity is “intrusted with the power to regulate the business . . . of a competitor.” Carter Coal, 298 U.S. at 311.

During oral arguments, Justice Breyer charged counsel for respondents with going “back to Lochner.”

JUSTICE BREYER: Going back to Carter v. Carter Coal.


JUSTICE BREYER: We could go back to Lochner.

Brown reads Carter v. Carter Coal as standing for the proposition that Congress cannot delegate power to self-interested firms that use that power to nakedly promote their self-interest.

The power to self-interestedly regulate the business of a competitor is, according to Carter Coal, anathema to “the very nature of things,” or rather, to the very nature of governmental function. Delegating legislative authority to official bodies is inoffensive because we presume those bodies are disinterested, that their loyalties lie with the public good, not their private gain. But here, the majority producers “may be and often are adverse to the interests of others in the same business.” Id. That naked self-interest compromised their neutrality and worked “an intolerable and unconstitutional interference with personal liberty and private property.” Id. Accordingly, the Court invalidated the Act as “so clearly a denial of rights safeguarded by the due process clause of the Fifth Amendment.”

Note that this is not a reversal of the normal rational-basis standard for substantive due process cases, but rather a species of the non-delegation doctrine as applied through the due process clause. But you can be sure that is how the government will characterize it.

The court takes a deep dive into the Framer’s views of rationally-self interested government officials, who would use the power of the state to aggrandize their own authority.

In fact, our Constitution’s ingenious system of checks and balances assumes government officials will act self-interestedly. “Happy will it be if our choice should be directed by a judicious estimate of our true interests, unperplexed and unbiased by considerations not connected with the public good,” the very first installment of the Federalist Papers opined. The Federalist No. 1, at 33 (C. Rossiter ed., 1961) (Hamilton). “But it is a thing more ardently to be wished than seriously to be expected.” Id. And as Alexander Hamilton observed elsewhere: “We may preach till we are tired of the theme, the necessity of disinterestedness in republics, without making a single proselyte.” Alexander Hamilton, The Continentalist No. IV, in 3 The Papers of Alexander Hamilton 99, 103 (Harold C. Syrett ed., 1962). Self-interested lawmaking was not some shocking aberration; it was an unwelcomed expectation, one our Constitution endeavored to channel and check. See The Federalist No. 51, at 321–22 (Madison) (C. Rossiter ed., 1961) (“Ambition must be made to counteract ambition.”).

Ambition must be made to counteract ambition. I couldn’t have said it better than myself.

With this framework, Judge Brown finds that Amtrak is self-interested:

 Amtrak’s self-interest is readily apparent when viewed, by contrast, alongside more traditional governmental entities that are decidedly not self-interested. The government of the United States is not a business that aims to increase its bottom line to achieve maximum profitability. Unlike for-profit corporations, government strives—at least in theory—for an equilibrium of revenues and expenditures, where the revenue obtained is no more and no less than the operating costs of the services provided. Amtrak’s charter stands in stark contrast. Its economic self-interest as it concerns other market participants is undeniable.

Under Carter Coal, such a delegation cannot stand:

Armed with coercive regulatory power, Amtrak wields a weapon of considerable advantage in its competitive battle for scarce track. And while the Constitution may grudgingly accept the reality of self-interestedness, it does not endorse it as an unmitigated good.

Congress delegated its legislative power to an entity that it designed to be the opposite of “presumptively disinterested.” Carter Coal, 298 U.S. at 311. Like coal competitors, whose “diversity of view[s]” concerning the challenges of the industry “[arose] from their conflicting and even antagonistic interests,” id., the antagonistic interests of freight operators and Amtrak transform the development of new performance metrics and standards into an unfair game of zero sums.

Judge Brown, joined by Sentelle, previously issued a concurring opinion in Hettinga v. United States that cast serious doubt on the Court’s post-1937 jurisprudence.

The court also finds a violation of the appointments clause, which I will try to address in a later post.

As the foregoing analysis suggests, among the Framers’ chief concerns at the constitutional convention were questions of who should be permitted to exercise the awesome and coercive power of the government. Tyrannous abuse of that power precipitated revolution against Great Britain. Overly restrictive access to it crippled our young nation under the Articles of Confederation. The novel equipoise the Constitution struck was to vest the legislative, executive, and judicial powers in independent branches of government and then empower each to check the others.

One last note. In the event that this case goes en banc, the math is funny because there were two senior judges (Sentelle and Williams) on the panels. The two senior judges don’t get to vote for the case to go en banc, but they do get to sit on the en banc court. If it goes en banc, there would be six judges appointed by Republican Presidents (Brown, Sentelle, Williams, plus Henderson, Griffith, and Kavanaugh). With Garland recused, there would be six judges appointed by Democratic presidents (Rogers, Tatel, Srinivasan, Millett, Pillard, and Wilkins).

As Sean Marotta pointed out on twitter, per D.C. Circuit Rule 35(d), a 6-6 en banc vote affirms “the decision under review.”

If the en banc court divides evenly, a new judgment affirming the decision under review will be issued.

But this case was on direct remand from the Supreme Court. The panel decision today addressed issues that were not addressed by the District Court, and that were decidedly left open by the Supreme Court’s decision. I think this would have the effect of “affirming” the judgment for the government, without endorsing any of the reasons why they win. This lineup could ensure that the issue makes a repeat trip to SCOTUS.

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Apr 29, 2016

Mental Health and Mass Shooters

After a mass shooting, the response is fairly predictable (even cyclical). Those who favor gun control advocate for stricter gun control  measures. Those who oppose gun control advocate for keeping guns out the hands out of people with mental health problems. However, in light of the nature of mass shooters, neither approach is designed to eliminate these high-profile, but extremely rare, mass killings. (It is worth stressing that attempting to reduce the number of single-person gun homicides differs wildly from reducing suicides or mass shootings, where four or more people are killed in a single incident).

The New York Times–in a piece that does not even mention gun control–discusses how difficult it is to predict the psychological profile of a mass killer.

These lone killers usually don’t fit into an existing category of mental illness, and there’s usually little evidence that early treatment would have helped . . . .

In fact, the sort of young, troubled males who seem to psychiatrists most likely to open fire in a school — identified because they have made credible threats — often don’t fit any diagnosis, experts say. They might have elements of paranoia, deep resentment or narcissism that are noticeable but don’t add up to a specific disorder, according to strict criteria. And there’s no good evidence that mental health treatment would have made a meaningful difference.

It is really easy to use 20/20 hindsight goggles, but making these diagnoses in advance is tougher than the media would let on.

The college student who killed six people before shooting himself in Isla Vista, Calif., in May 2014 saw multiple therapists; they disagreed whether he had emotional problems or high-functioning autism. TheSandy Hook shooter, who killed 26 people in an elementary school in Newtown, Conn. in 2012, had seen numerous psychiatrists and psychologists for years before his mass murder, including therapists at Yale’s renowned Child Study Center. After details of the young man’s childhood and home life emerged, some experts saw evidence of earlypsychosis or obsessive compulsive tendencies. But the only official diagnosis Adam Lanza, the shooter, had received was Asperger’s syndrome, a mild form of autism that by itself does not dispose people to violent acts.

It is simply not the case that these sick individuals–even with proper screening–can be identified in advance for heightened gun control with any degree of accuracy.

Intervening early to address the resentments and fantasies of this group — an approach called threat assessment — is thought to reduce the risk that the boys will act out. But spree killings are rare enough that it has been difficult to know how well such preventive measures work.

The consequence of these findings is that most gun-control laws premised on “mental health” conditions–as a means to halt mass shootings–will primarily generate false positives. Such a regime assumes people with depression, or other similar condition, are dangerous, so the state denies them the right to acquire an arm–even though their condition is unlikely to drive them to commit such horrific crimes.

I’ve written before how doctors in New York have explained that the state’s new mental-health registry may actually be counterproductive because it chills patients from seeking treatment, out of a fear of losing a constitutional right. This is compelled by New York’s imposition of liability on doctors who fail to report patients who go on to do bad things.This creates a perverse incentive to further increase the number of false negatives.

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