Oct 11, 2016

Amicus Brief Filed in United Poultry Concerns v. Chabad of Irvine

On Sunday, I blogged about a temporary restraining order issued by the Central District of California against the Chabad of Irvine, California, and Rabbi Alter Tenenbaum. The suit, brought by United Poultry Concerns, sought to enjoin the Jewish ritual of Kaparrot. For reasons I explained in my earlier post, there is no conceivably way the injury they assert under state law qualifies as an injury under Article III. However, a more fundamental defect is that the district court lacks subject matter jurisdiction. Thanks to Attorney Aryeh Kaufman, in less than 36 hours, we managed to prepare and file an amicus brief supporting Chabad–a few hours before the 8:00 a.m. deadline. We also requested permission to participate in oral arguments.

You can download our brief here. Here the crux of our jurisdictional arguments:

First, plaintiffs wildly speculate that over the next decade, if three-hundred chickens are killed annually at a cost of $25 each, the amount in controversy will conveniently exceed $75,000. Complaint at ¶ 7. This argument is laughable, and warrants sanctions under Rule 11. There is no principle of federal jurisprudence under which a plaintiff can arbitrarily aggregate speculative damages over the course of a decade to meet the minimum amount in controversy. Even worse, because the plaintiffs were seeking a temporary restraining order to prohibit the imminent Kapparot ritual in October 2016, it is absurd to look out a decade. And why only ten years? Why not twenty, thirty, or even a century? If this standard is applied, “any plaintiff filing suit would be allowed to show injury.” Hernandez v. Specialized Loan Servicing, LLC, No. 14-CV-9404-GW, 2015 U.S. Dist. LEXIS 8695, at *24-*25, (C.D. Cal. Jan. 22, 2015)(quoting Koller v. W. Bay Acquisitions, LLC, No. 11-CV-117-CRB, 2012 U.S. Dist. LEXIS 49712, at *20-*21 (N.D. Cal. Apr. 9, 2012) (quoting Selby v. Bank of Am., Inc., No. 09-CV-2079-BTM, 2010 U.S. Dist. LEXIS 139966, at *24 (S.D. Cal. Oct. 27, 2010). There is no diversity jurisdiction.

Second, if plaintiffs speculate that if victorious, their attorney’s fees may total more than $75,000. Complaint at ¶ 8. This claim is specious, and flatly contrary to law. As the Court noted in its order to show cause, “attorney’s fees do not satisfy the UCL standing requirement.” Nor do they satisfy the matter in controversy requirement per 28 U.S.C. § 1332(a), which requires the matter to exceed $75,000 “exclusive of interest and costs.” If fees could be aggregated in a fantasy-victory, plaintiffs could always artificially manufacture diversity jurisdiction.

Third, plaintiffs write that a “A California court would have subject matter jurisdiction over the claims.” Complaint at ¶ 9. This is legally irrelevant. California courts are courts of general jurisdiction. Federal courts are courts of limited subject matter jurisdiction empowered to exercise the judicial power of the United States only when authorized to do so by Congress. (For a preview of future briefs-to-come if this case is not dismissed, citations to state-court decisions are not sufficient to demonstrate an Article III injury).

Fourth, plaintiffs write that “this case requires resolution of a substantial question of federal law” because the defendants will “contend their actions are protected by the Free Exercise clause of the First Amendment.” Complaint at ¶ 10. This is an elemental error of federal pleading. Under the Mottley rule, a well-pleaded complaint must raise the federal questions on the face of the complaint–it is not enough to speculate about what federal questions the defendant may raise in response. Louisville & Nashville Railroad Company v. Mottley, 211 U.S. 149 (1908). Nothing in Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., (2005) 545 U.S. 308, which defendants inexplicable cite, is to the contrary. Indeed, Grable does not even reference the canonical Mottley rule, which has stood for nearly a century without challenge.

Finally, the Court’s order to show cause seems to conflate subject matter jurisdiction and injury for purpose of Article III. Regardless of whether the plaintiffs have suffered an injury – again, a dubious proposition under Article III even if is permissible in state courts – the threshold inquiry is whether there is federal diversity or federal question subject matter jurisdiction. Under no set of circumstances have plaintiffs established that this court has jurisdiction to proceed.

Read More
Oct 10, 2016

Interview on Houston Public Radio about Unraveled

On September 27, 2016, I was a guest on Houston Matters, a public affairs program on Houston Public Radio. For a full 30-minute segment, host Craig Cohen asked me about Unraveled. Pay attention to the numerous Shakespeare references.

Read More
Oct 9, 2016

Federal Court Issues Injunction To Prohibit Temple from Engaging in “Kaparot” Ritual Before Yom Kippur

In the period between Rosh Hashanah and Yom Kippur, certain Jewish sects engage in a ritual known as Kaparot. The New York Times described it in this fashion:

In general, the messages protested the tradition of kaparot — sometimes spelled kapparot or kapparos — in which Orthodox Jews take live chickens, swing them over their heads as a means of symbolically transferring sins to the chickens, and then slaughter them on the eve of Yom Kippur, the Jewish day of atonement.

Sometimes the chicken is used for food, and sometimes it is not. This ritual may sound grisly (I have never participated in it), but no more so than the sacrifices at issue in Church of the Lukumi.

As reported on the Religion Clause blog, on September 28, 2016, United Poultry Concerns (an animal rights group) sought a temporary retraining order in the Central District of California. The suit, brought against Chabad of Irvine and Rabbi Alter Tenenbaum, requested injunctive relief to prohibit the temple’s practice of Kaparot in the period before Yom Kippur.

Plaintiffs charged that because Kaparot amounts to an “’intentional and malicious’” killing of an animal” (in violation of California Penal Code Section 597(a)), it is also an “unlawful” business practice (under California’s Unfair Competition Law (“UCL”), Business & Professions Code (“BPC”) section 17200, et seq).

On October 6, the District Court asked the plaintiffs to show cause why the case should not be dismissed for lack of standing:

Plaintiff(s) are ORDERED to show cause why this case should not be dismissed, for lack of statutory standing under California’s Unfair Competition Law (“UCL”), Business and Professions Code section 17200. Standing under the UCL extends to “a person who has suffered injury in fact and has lost money or property as a result of the unfair competition[.]” Cal. Bus. & Prof. Code § 17204. In order to show standing under the UCL a party must: “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. Superior Court, 51 Cal. 4th 310, 322, (Cal. 2011).

The following day, plaintiffs filed a reply arguing that they have standing “based on its diversion of organizational resources spent addressing Defendants’ unlawful activity and attempting to convince authorities to take action.” Section 17204 provides that a party has standing if he “has suffered injury in fact and has lost money or property as a result of such unfair competition.”

The leading federal court decision on point is Southern California Housing Rights Center v. Los Feliz Towers Homeowners Association, 426 F.Supp.2d 1061, 1069 (C.D.Cal.2005). Here is the primary analysis:

Even if this amendment were retrospectively applied to the present case, the Housing Rights Center has standing because it presents evidence of actual injury based on loss of financial resources in investigating this claim and diversion of staff time from other cases to investigate the allegations here. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (finding that a fair housing organization suffered injury to confer standing to sue under the Fair Housing Act where it devoted significant resources to identifying and counteracting discriminatory policies); El Rescate Legal Services, Inc. v. Executive Office of Immigration Review, 959 F.2d 742 (9th Cir.1991) (holding that “the allegation that the EOIR’s policy frustrates these goals [of helping refugees obtain asylum and withhold deportation] and requires the organizations to expend resources in representing clients they otherwise would spend in other ways is enough to establish standing”); Fair Housing of Marin v. Combs, 285 F.3d 899 (9th Cir.2002)(finding that a fair housing organization has standing to sue under the Fair Housing Act where its resources were diverted to investigating and other efforts to combat defendant’s discrimination).

The precedents cited do not support the district court’s conclusion. First, in Havens Realty, Justice Brennan held for a unanimous Court that so-called “testers” had standing to challenge housing discrimination because “Congress has thus conferred on all ‘persons’ a legal right to truthful information about available housing.” Focusing on “congressional intention,” Brennan noted that the provision “establishes an enforceable right to truthful information concerning the availability of housing” and thus “A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury.”

Second, in El Rescate, individuals and legal services organizations challenged a policy of the federal government not to provide full translations of deportation hearings. The court held (correctly) that the legal services group have organizational standing, as the failure to provide translations directly impacts those subject to removal. The panel’s citation for Havens simply bolstered the case for organizational standing, and did not consider whether the organization would have standing by itself. There is no doubt that aliens subject to removal, who do not receive translations, suffer an Article III injury. (That question is separate from whether translations must be provided–not all injuries yield remedies).

Third, in Combs nonprofits sued an apartment complex owner for housing discrimination. Citing Havens, the court held that plaintiff “has direct standing to sue” under the Fair Housing Act “because it showed a drain on its resources from both a diversion of its resources and frustration of its mission.” Nothing new was added here.

The Los Feliz Towers court analogized the Fair Housing Act to the California Unfair Competition Law, but I don’t think this analogy holds up. The text and “congressional intention” of the FHA reveals that “Congress has thus conferred on all ‘persons’ a legal right to truthful information about available housing.” No similar analysis was made about the text and history of the UCL. This disjunction is even greater when there is no suggestion that the relevant unfair business practice–animal cruelty–creates an enforceable right by plaintiffs. This bootstrapped argument stretches Los Feliz Towers (a dubious precedent) beyond its limits.

Frankly, this reasoning seems to allow any party to manufacture standing, merely by investigating something that bothers them. Although this may fly in state court, this seems to extend beyond the bounds of Article III. Without any clear indication that the legislature had intended such suits to be brought, this line of precedent provides a boundless font of jurisdiction.

Nonetheless, Los Feliz Towers, and its progeny, have been cited by several other district courts with no further elaboration, as noted in Animal Legal Defense Fund v. Great Bull Run, LLC, No. 14-cv-01171-MEJ, 2014 WL 2568685 (N.D. Cal. June 6, 2014):

Organizational plaintiffs have standing under the UCL where they divert resources as a result of a defendant’s alleged unlawful business practices. See S. Cal. Hous. Rights Ctr. v. Los Feliz Towers Homeowners Ass’n, 426 F.Supp.2d 1061, 1069 (C.D.Cal.2005) (“the Housing Rights Center has standing because it presents evidence of actual injury based on loss of financial resources in investigating this claim and diversion of staff time from other cases to investigate the allegations here”); Animal Legal Def. Fund v. HVFG LLC, 2013 WL 3242244, at *3 (N.D. Cal. June 25, 2013) (“a public advocacy firm such as ALDF can have standing under [the UCL] to challenge a business practice inimical to its purpose and against which the firm expends its resources, thus reducing the money and property it would otherwise have for other projects”)

Following these precedents, on October 7, the district court issued the TRO barring the practice of Kaparot:

IT IS HEREBY ORDERED that, pending a hearing for determination of an Order to Show Cause Why a Preliminary Injunction Should Not Issue, Defendant Chabad of Irvine and all of its respective agents, employees, or attorneys, shall be and hereby are RESTRAINED AND ENJOINED from killing chickens or other animals in exchange for a fee or donation in violation of California Penal Code section 597(a) until this matter can be heard on regular notice.

A brief in opposition is due on October 11 at 8:00 am (a few hours before the Yom Kippur holiday starts). Oral arguments are set for October 13 a 10:00 am (the morning after Yom Kippur concludes).

The timing of this suit is worth discussing for a moment. According to the TRO, United Poultry Concerns has been investigating the practice of Kaparot at the Chabad of Irvine since 2014. Yet, they only saw fit to seek a TRO five days before Rosh Hashanah. A complaint, or even a motion for a preliminary injunction, filed earlier in the year could have resolved this question without ex parte proceedings. This tradition is performed each year, at the same time, and was entirely foreseeable. Instead, the case was only filed on the eve of the holiday–and at a time when observant Jews have other priorities rather than dealing with a federal law suit. Based on my review of the docket, no notice of appearance was even made by the defendants, as the issue was resolved entirely ex parte. This tardy filing took advantage of the ex parte nature of a TRO–where no response is filed–during a period when Chabad had no time to mount any meaningful defense.

Perhaps the only redeeming quality of this hasty TRO is that it is extremely narrow, and strikingly simple to evade. The order only prevents defendants “from killing chickens or other animals in exchange for a fee or donation.” If the defendants perform the ritual without a cost, they cannot be held in contempt. And in light of Church of the Lukumi, I find it highly unlikely the state would ever enforce this criminal provision against them. But who knows. It’s California!

I will write about the free exercise issues attendant with this case later this week. (And lest you forget, California does not have a RFRA–the so-called “license to discriminate”–so defendants can only raise arguments under Employment Division v. Smith).


Read More
Oct 7, 2016

Debate at Georgia State University on the Election and SCOTUS

On October 5, the Georgia State Federalist Society Chapter hosted me and my buddy Eric Segall for an excellent debate on how the Supreme Court will be affected by the imminent election.





Read More
Oct 7, 2016

Cato Daily Podcast: Unraveled and Executive Power.

Yesterday, I was featured on the Cato Daily Podcast talking about Unraveled and executive power. Enjoy!

Read More
Oct 7, 2016

“Unraveled” at New Jersey Lawyer’s Chapter

On September 28, 2016, the New Jersey Lawyer’s Chapter hosted me for a discussion of Unraveled. Special guest Rich Weinstein, who rocked the ACA litigation with his discovery of the Jonathan Gruber videos, offered his reflections about the case.

Read More
Oct 6, 2016

3D-Printed Guns at Indiana University McKinney School of Law

On September 20, 2016, the Indiana University McKinney School of Law hosted me for a discussion of the 1st Amendment, 2nd Amendment, and 3D-Printed Guns. Professor David Orentlicher was kind enough to offer insightful comments on his talk.






mckinney3 iu-mckinney


Read More
Oct 6, 2016

“Unraveled” at Houston Federalist Society Lawyer’s Chapter

On September 22, 2016, my hometown Federalist Society Chapter in Houston hosted me for a discussion of Unraveled. My thanks to Marcella Burke, Stephen Cox, and Will Peterson for their hospitality.



Read More
Oct 5, 2016

“Unraveled” at Indianapolis Federalist Society Lawyer’s Chapter

On September 21, 2016, the Indianapolis Federalist Society Lawyer’s Chapter hosted me for a discussion of Unraveled. This happened to be my dry run for the book talk. Enjoy!


Read More
Oct 5, 2016

Debate on “Originalism” at Indiana University Mauer Federalist Society Chapter

On September 20, 2016, the Indiana University Mauer School of Law Federalist Society chapter hosted me for a debate on originalism. My good friend Steve Sanders offered a competing vision of originalism and textualism. Enjoy!

iu-mauer-flyer-originalism-event-flyer 1



Read More
Oct 4, 2016

Bill Clinton Rips Obamacare: “It’s the craziest thing in the world” #Unraveled

The 42nd President went off script in describing the signature achievement of the 44th President. Read his remarks, in their entirety:

The next thing is, we’ve got to figure out what to do now about healthcare. Her opponent says just repeal it all, the market will take care of it. That didn’t work out very well for us did it?  On the other hand, the current system works fine if you’re eligible for Medicaid if you’re a lower income working person, if you’re already on Medicare, or if you get enough subsidies on a modest income that you can afford your healthcare. But the people who are getting killed in this deal are the small businesspeople and individuals who make just a little too much to get in on these subsidies. Why? Because they’re not organized, they don’t have any bargaining power with insurance companies, and they’re getting whacked. So you’ve got this crazy system where all of a sudden 25 million more people have healthcare, and they’re out there busting it sometimes 60 hours per week, wind up with their premiums doubled and their coverage cut in half. It is the craziest thing in the world. So here’s the simplest thing: Figure out an affordable rate and let people use that. Something that won’t undermine your quality of life, won’t interfere with your ability to make expenses and save money, and let people buy into Medicare or Medicaid.

White House Press Secretary, Josh Earnest, was not amused:

“I think what I would say is the president is quite proud of the accomplishment of the Affordable Care Act,” White House press secretary Josh Earnest told reporters, in response to Clinton calling the program “the craziest thing in the world.”

“The American people benefit from the way the law has been implemented,” Earnest said.

He rattled off a list of achievements under the law, such as 20 million newly insured Americans, increased competition and consumer protections that block companies from refusing to insure people with pre-existing illnesses.

Asked whether the White House hoped that Clinton would have used different words to describe the law, Earnest responded, “Of course.”

But he declined to attack Clinton, the husband of Democratic presidential nominee Hillary Clinton, for comments that were widely seen as a direct challenge to Obama.

“For the point that President Clinton was trying to make, I guess I would refer you to his team,” Earnest said. “You’ll have to talk to President Clinton directly about what message he was trying to send.”

This is not the first time WJC has been critical of the ACA. During the cancellation wave in the fall of 2013, he faulted the President for breaking his promise that people can keep the plans they like. As I discuss in Unraveled:

Even the forty-second president joined the fray, urging the forty-fourth president to take action. Former-President Bill Clinton said that people should be allowed to keep their policies: “I personally believe, even if it takes a change in the law, that the president should honor the commitment the federal government made to those people and let them keep what they’ve got.”63 Obama had once called Clinton the “Secretary of Explaining Things,” and the former president understood the risk of canceled policies all too well.64 It was Harry and Louise’s fear that they would have to change their coverage that doomed HillaryCare in 1994. House Speaker John Boehner relished in Clinton’s critique: “These comments signify a growing recognition that Americans were misled when they were promised that they could keep their coverage under President Obama’s health care law. The entire health care law is a train wreck that needs to go.”65

Hillary Clinton said nothing about the canceled policies.66 In contrast with her husband’s loquaciousness, the former Secretary of State’s silence was deafening. On the campaign trail six years earlier, candidate Clinton’s health care plan featured an individual mandate, which would have also resulted in the cancellation of inadequate plans. To assuage the fears that derailed her health care reform two decades earlier, during a 2007 event in Iowa, Clinton made an all-too-familiar promise: “You can keep the doctors you know and trust. You keep the insurance you have. If you have private insurance you like, nothing changes – you can keep that insurance.”67

Update: President Clinton has walked back his statement:

“I want to say this one thing about the healthcare law, because that’s another thing they’ve been trying to tangle in — I supported the Affordable Care Act. I support it today,” he said while campaigning for his wife in Steubenville, Ohio on Tuesday.

“It did a great job in ensuring 25 million more people, and it did something for 100 percent of the people, it says you cannot deny anybody health insurance because of a pre-existing condition,” he continued.

“All of that is important,” he acknowledged, before going on to offer measured criticism of the law, saying, “There is a big problem with it that needs to be fixed, that everybody who knows admits it. If you’re just above the line to qualify for the Medicaid expansion, or just above the line to qualify for the subsidies for small businesses and workers, the likelihood is that your premiums have gone up, your coverage has gone down.”

Update 2: Secretary Clinton offered a response:

When asked by another reporter to clarify her husband’s comments, Clinton briefly responded, “I think he made it clear what he was saying.”

Read More
Oct 4, 2016

Cato Book Forum – “Unraveled: Obamacare, Religious Liberty, and Executive Power”

On Tuesday, September 27, 2016, the Cato Institute hosted a book forum for Unraveled. Ilya Shapiro moderated a discussion with me, Robert Barnes (Washington Post) and Phillip A. Klein (Washington Examiner). I am grateful for the discussion of the book, and the opportunity to sign some books for avid readers after the book.

Enjoy the video and audio from the event:






Read More
Oct 4, 2016

Upcoming Events at Georgia State and Mercer

I have to upcoming lectures in the Peach State. On Wednesday, 10/5 at noon, I am debating my good friend and legal pugilist Eric Segall on how the upcoming election will impact the Supreme Court and its precedents.  On Thursday 10/5 at 2:30, I will be discussing 3D-Printed Guns at the Mercer University School of Law. Both events are hosted by the Federalist Society, and are open to the public.



Read More
Oct 4, 2016

Georgetown Federalist Society – “Supreme Court Advocacy in the Obamacare Cases”

On September 27, 2016, the Georgetown Federalist Society chapter hosted an engaging discussion on “Supreme Court Advocacy in the Obamacare Case.” This was a followup to a similar discussion held at Georgetown in 2013 on my first book, Unprecedented. This event focused on Hobby LobbyKing v. Burwell, and Little Sisters of the Poor. Adam Liptak moderated a discussion, that included me, Mike Carvin (who argued King v. Burwell), Erin Murphy (who worked on Hobby Lobby and Little Sisters), and Marty Lederman (who has briefed and blogged about these cases). Adam tried (as best as he could) to keep the attorneys talking about advocacy, without devolving into what “established by the state” means. I offered a preview on the Volokh Conspiracy from Unraveled about Carvin’s advocacy in the tax subsidies litigation, which is worth a study.








Read More
Oct 4, 2016

Government’s MTD in Risk Corridor Suits

On Friday, the Justice Department filed a motion to dismiss the risk corridor suits brought by Moda Health Plans and Blue Cross Blue Shield of North Carolina. To grossly summarize, Congress passed a statute that required the risk corridors to be budget neutral. Because there was far less paid into the fund than expected, insurers were not paid as much as they expected. The government argued (as expected) that the claims are not yet ripe and there are no claims for “presently due money damages” under the Tucker Act.

However, the government goes on to argue that the pro-rata payments “are rational” and HHS has no contractual obligation to make additional payments. These arguments are somewhat surprising in light of recent reports that the Obama administration is looking to settle these cases using the judgment fund. Why is the government offering such a full-throated defense if they are planning on settling the cases anyway?

Perhaps the institutional constraints within the Justice Department are leery of assuming away that a contractual obligation has been made. Such a decision could open the floodgates to many more claims from other government contractors. In this case, once a court refuses to dump the case and holds that there is a contract, that paves the way for a settlement from the judgment fund. Although, things get quirky if the court dismisses the case. If the government loses, could it still offer a settlement?

I frankly don’t understand this strategy, but there are a lot of moving parts here.

Read More
Oct 3, 2016

NY Times on Unraveling ACA: “Ailing Obama Health Care Act May Have to Change to Survive”

Today’s New York Times has a revealing, and bleak profile of the ACA exchanges in year three:

The fierce struggle to enact and carry out the Affordable Care Act was supposed to put an end to 75 years of fighting for a health care system to insure all Americans. Instead, the law’s troubles could make it just a way station on the road to another, more stable health care system, the shape of which could be determined on Election Day.

At every single book event I’ve done, I have been asked the same question: “Was the ACA designed to fail?” My answer: “Not this quickly.” Jonathan Gruber has stated on several occasions that the ACA was merely a weigh-station to national health care, but I don’t think the smartest guys in the room anticipated the pit stop would be quite this short. The fatal conceit of central planning has once again, taken the central planners by complete surprise.

Remarkably, in less than three years, Obamacare has unraveled the individual health insurance marketplace.

In such divergent proposals lies an emerging truth: Mr. Obama’s signature domestic achievement will almost certainly have to change to survive. . . .

“Employer markets are fairly stable, but the individual insurance market does not feel stable at all,” said Janet S. Trautwein, the chief executive of the National Association of Health Underwriters, which represents more than 100,000 agents and brokers who specialize inhealth insurance. “In many states, the individual market is in a shambles.”

Another question I am often asked is whether I feel bad for the insurance companies that are struggling. My answer: “Schadenfreude.” Karen Ignani and her cronies made a faustian pact with the government. They were ecstatic that the government would mandate that people buy their products, and subsidize the marketplaces. How did that work out? Not so well. Now insurance companies are fleeing the marketplaces in droves, after losing hundreds of millions of dollars.

So what is the solution from the central planners? More central planning!

But that does not mean the act will heal on its own, said Sara Rosenbaum, a professor of health law and policy at George Washington University.

“Even the most ardent proponents of the law would say that it has structural and technical problems that need to be addressed,” she said. “The subsidies were not generous enough. The penalties for not getting insurance were not stiff enough. And we don’t have enough young healthy people in the exchanges.”

Read More
Oct 3, 2016

Obama Interview with Jonathan Chait

Jonathan Chait interviewed President Obama in NY Magazine, and several of this comments focused on the ACA.

First, he discussed the difficulties of keeping together his fragile caucus, and how Republicans were not interested in supporting his reform.

Same thing with the public option[for health-care reform]. Even though we had very solid majorities in the House, the ceiling for what we could do was our decent, but, with the filibuster, constantly threatened majority in the Senate. That was complicated by the fact that, if you’ll recall, [Al] Franken hadn’t been seated yet, so that gave us even less room to maneuver. …

During the health-care debate, you know, there was a point in time where, after having had multiple negotiations with [Iowa senator Chuck] Grassley, who was the ranking member alongside my current Chinese ambassador, [Max] Baucus, in exasperation I finally just said to Grassley, “Is there any form of health-care reform that you can support?” and he shrugged and looked a little sheepish and said, “Probably not.”

The pivotal decision came after the election of Scott Brown. Obama relayed how he worked with Pelosi and Reid to push forward.

The most important phone call I made after that was to Nancy Pelosi, because the question I posed to her and to Harry Reid was, “Are you guys still game? Because if you guys are still game, we’ll find a way. But I can’t do it unless Democrats are willing to take what are going to be some tough votes.” Now, part of my argument to them was, you’ve already paid the price politically, it’s not as if a failed health-care effort would be helpful in midterm elections, it’s better to go ahead and push through and then show that we had gotten something done that was really important to the American people. I give Nancy and Harry and a whole lot of Democrats enormous credit. It was one of those moments where a lot of people did the right thing even though the politics of it were bad. And I’ve said to the Democratic caucus when I’ve met with them in subsequent years that their willingness to go ahead and walk the plank to get the Affordable Care Act done is one of the reasons that I continue to be proud of the Democratic Party. For all its warts and all the mistakes that any political party makes — catering to the interest groups that help get people elected — the truth is that the ACA vote showed that when push came to shove and people had to do something they thought was right, even if it was not going to be helpful to their reelection, the majority of Democrats were willing to do it. And certainly Nancy and Harry were willing to do it. We saw that again later on some tough budget votes, and the Iran deal, and I give them enormous credit for that. So once Nancy said, “I’m game,” then it was really just, at that point, a set of tactical questions: What legislative mechanisms could we use to advance legislation that was 90 to 95 percent done but still had 5 percent of stuff that if we had gone through a regular process could have been cleaned up but that ultimately was still going to deliver real help to millions of people across the country?

Obama also admitted that he began researching the reconciliation process before the Brown election, when it looked like Martha Coakley was not doing too well.

The truth is that once we knew that the Massachusetts election might be difficult, and that was probably a couple weeks ahead of time, then we started doing some contingency planning. That was something that I had to learn fairly early on in the process, although we had learned it to some degree in the campaign: You have to have a plan B. You always have to be very quiet about your plan B, because you don’t want it to sabotage your plan A — and sometimes people are looking for an out and want plan B. But we had begun to look at what other paths might be possible, and this one presented itself. It still required really deft work by Nancy and Harry and our legislative teams, but we knew at that point that it was possible, and once we had that path, then it was really just a matter of working Congress. It’s interesting, in 2011, when the left had really gotten irritated with me because of the budget negotiations, there was always this contrast between Obama and LBJ, who really worked Congress. But I tell you, those two weeks, that was full LBJ. I think [White House photographer] Pete Souzahas a picture series of every meeting and phone call that I was making during the course of that, which is actually pretty fun to see. Basically, every day for the following two weeks, we were working Democrats, because at that point there was no prospect of us getting any Republicans. Although I devoted an enormous amount of time with Olympia Snowe, the one person who, to her credit, took a tough vote to get ACA out of committee before then deciding that she couldn’t support the broader effort.

Obama also related the difficulty of Democrats supporting the ACA after the Brown election:

I would say 80 percent moral case, because the numbers weren’t with us. Look, Scott Brown had just won, poll numbers were rotten, people were angry. The folks who I will always consider the real heroes of the ACA were the legislators, mostly younger and in swing districts, who had been from either the ’06 wave or the ’08 wave. They had tough races and were just a great bunch of guys. With them it was an entirely moral case: What’s the point of being here if not this?

Plus, he referenced Bart Stupak’s “iron-clad” executive order.

Yeah, because then it was transactional, then it was “I’d like this, I need that.” And one of the things that’s changed from the Johnson era obviously is I don’t have a postmaster job. Shoot, not just Johnson’s age — Lincoln’s age. Good-government reforms have hamstrung an administration, which I think is for the most part for the best. But it means that what you’re really saying to them is, “This is the right thing to do and I’ll come to your fund-raiser in Podunk and I will make sure that I’ve got your back.” In some cases there were some substantive issues that we had to work really hard on. [Former congressman] Bart Stupak was a very sincere, pro-life legislator and a Democrat, a really good man who worked really hard with me to try to get to yes and ended up getting there, working along with Sister Carol [Keehan], the head of the Catholic hospitals, despite strong opposition from the Catholic bishops. So in some cases there really were legitimate difficulties, substantive issues that had to be worked through.

This paragraph discusses, more broadly, how the President viewed the gridlock in Washington as justifying his executive actions.

I’m talking about across the board. In my mind the [Affordable Care Act] has been a huge success, but it’s got real problems. They’re eminently fixable problems in terms of strengthening the marketplace, improving the subsidies so more folks can get it, making sure everybody has Medicaid who was qualified under the original legislation, doing more on the cost containment. But you hit a point where if Congress just is not willing to make any constructive modifications and it’s all political football, then you’re getting a suboptimal solution. I can work really hard — and we have — in striking the right balance around NSA issues and how we balance privacy versus the need to collect intelligence and engage in counterterrorism. But it was really helpful when, in a rare moment of bipartisanship, we got the USA Freedom Act done. That embedded certain reforms and reflected a strong consensus. And so I have ended up taking a lot of executive actions that I’m very proud of, because they are solving real problems and were well within my legal authority to do. But I haven’t lost my preference for good old-fashioned debate, bills, and the democratic process. If there’s one wish that I have for future presidents, it’s not an imperial presidency, it is a functional, sensible majority-and-opposition being able to make decisions based on facts and policy and compromise. That would have been my preference for the majority of my presidency. It was an option that wasn’t always available. But I hope the American people continue to understand that that’s how the system should work.

I’ll close with the President’s cognitive dissonance that people do not believe him:

Here’s one thing that I am always surprised by: the degree to which people don’t just take me at my word. If you go back and you read speeches I made when I was running for the U.S. Senate in 2003, or if you go back further and you look at statements I made when I was on the Harvard Law Review, my worldview is pretty consistent. And I generally try to do what I say I’m gonna do.

Read More
Oct 3, 2016

Update on Unraveled

Due to the vagaries of supply-chains and SAP, Unraveled has been available since 9/27, but will not ship from Amazon until 10/10. The Kindle version will ship on 10/15. Thank you to everyone who has ordered it–you will get it soon.

Read More
Oct 3, 2016

NYU Federalist Society: “The 9th Justice: Which Precedents Will Be Overruled in 2017 and Beyond”

On September 29, 2016, the NYU Federalist Society Chapter hosted me and Prof. Sam Estreicher for a discussion on the future of the Supreme Court. My goal was to discuss the impact of Justice Scalia’s passing on last term and this term, and to pivot to what will likely happen to the Court’s precedents after the upcoming election. Please read David Lat’s thorough writeup for more details.






Read More
Oct 3, 2016

Oyez, Oyez, Oyez! The OT 2016 Term of FantasySCOTUS is Now Open

It’s hard to believe but today marks the opening of the 8th season of FantasySCOTUS. I first launched it during the October 2009 term while I was still clerking in the Western District of Pennsylvania, and it feels like a lifetime ago. This feeling is at once familiar but so uncertain, in light of the vacancies on the Supreme Court. Sign up and see if you can predict the unpredictable term!


Read More