Jul 15, 2015

Top Health-Care Lobby Hires Marilyn Tavenner (Former Obamacare Administrator) As New Chief

The revolving door in Washington keeps spinning. The irony of this revolution is particularly delicious. Recently, Karen Ignani, longtime Chief of America’s Health Insurance Plans (AHIP) stepped down. You may recall that Ignani was instrumental in rounding up support for Obamacare, and perhaps most significantly, persuaded then-candidate Obama to reverse his position and support an individual mandate. Why wouldn’t health insurance companies want a federal mandate to buy their products!  So who will replace her?

None other than Marilyn B. Tavenner. Remember her? She was the top official involved in the rollout of HealthCare.gov. Yes, the person who is largely responsible for the biggest colossal flop in the ACA’s history was hired as the top lobbyist for the health insurance industry! Unbelievable.

NYT reports, charitably:

Ms. Tavenner led federal efforts to carry out the Affordable Care Act, and she was stunned in October 2013 when HealthCare.gov crashed during its initial introduction, frustrating millions of consumers who were trying to buy insurance online.

In the ensuing months, she helped fix the website, after the White House deployed a management expert to supervise the operation, with the assistance of technology experts recruited from Silicon Valley.

“The rollout was far from ideal,” Ms. Tavenner said on Wednesday. “But I spent a month pulling a team together and creating a turnaround. The management challenges seemed insurmountable, but I am proud of what we accomplished.” Millions of people eventually gained insurance, she said.


Perhaps the most delicious irony, is that she was hired to lobby Congress.

She said that, because of federal conflict-of-interest rules, she would not lobby the agency or other parts of the Department of Health and Human Services in the remaining months of the Obama administration. But she said she was free to lobby Congress.


I can’t how many hearings before Congress where Tavenner looked like an absolute fool, totally unable to answer any questions about why HealthCare.gov was such a abysmal failure.

Glenn Reynold’s revolving door tax sounds like a great idea now.

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Jul 14, 2015

Pilon on the Libertarian Perspective of Public Accomodations and SSM

In the WSJ, Roger Pilon offers a libertarian take on businesses that decline to provide services for same-sex weddings.

With nationwide same-sex marriage now in its pocket, the gay-rights movement is turning quickly to the next item on its agenda: outlawing discrimination based on sexual orientation. That is where many libertarians who strongly supported same-sex marriage step back for a more measured approach. It is one thing to prevent government officials from discriminating against same-sex couples—that is what equal protection is all about—quite another to force private individuals and organizations into associations they find offensive.

The public-accommodation cases are closer calls. Because they represent their businesses as open to the public, the Kleins and Giffords shouldn’t be able to deny entrance and normal service to gay customers—and neither has done so. If a same-sex couple had walked into that bakery hand-in-hand and ordered bagels, they would have been served without objection. But it is a step further—and an important one—to force religious business owners to participate in a same-sex wedding, to force them to engage in the creative act of planning the event, baking a special-order cake for it, photographing it, and so on.

No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.



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Jul 14, 2015

Atticus and Jean Louise Talk about #SCOTUS, Brown, and the 10th Amendment in “Go Set A Watchman”

Unless you’ve been living under a rock, by now you should know that Harper Lee’s prior-in-time sequel to “To Kill A Mockingbird” was published today. Perhaps the greatest surprise in “Go Set a Watchman” is that Atticus Finch, the icon, is now portrayed as a bigot.

In one of the more fascinating and surreal scenes, Atticus and Scout (here known as Jean Louise) have an extended conversation about the Supreme Court, Brown v. Board of Education, and the Tenth Amendment.

Her father leaned back in his chair. He said, “Jean Louise, you’ve been reading nothing but New York papers. I’ve no doubt all you see is wild threats and bombings and such. The Maycomb council’s not like the North Alabama and Tennessee kinds. Our council’s composed of and led by our own people. I bet you saw nearly every man in the county yesterday, and you knew nearly every man there.”

“Yes sir, I did. Every man from that snake Willoughby on down.”

“Each man there was probably there for a different reason,” said her father.

No war was ever fought for so many different reasons. Who said that? “Yeah, but they all met for one reason.”

“I can tell you the two reasons I was there. The Federal Government and the NAACP. Jean Louise, what was your first reaction to the Supreme Court decision?

That was a safe question. She would answer him.

“I was furious,” she said.

She was. She had known it was coming, knew what it would be, had thought she was prepared for it, but when she bought a newspaper on the street corner and read it, she stopped at the first bar she came to and drank down a straight bourbon.


“Well sir, there they were, tellin’ us what to do again—”

Her father grinned. “You were merely reacting according to your kind,” he said. “When you started using your head, what did you think?”

“Nothing much, but it scared me. It seemed all backward— they were putting the cart way out in front of the horse.”

“How so?”

He was prodding her. Let him. They were on safe ground. “Well, in trying to satisfy one amendment, it looks like they rubbed out another one. The Tenth. It’s only a small amendment, only one sentence long, but it seemed to be the one that meant the most, somehow.”

“Did you think this out for yourself?”

“Why, yes sir. Atticus, I don’t know anything about the Constitution. . . .”

“You seem to be constitutionally sound so far. Proceed.”

Proceed with what? Tell him she couldn’t look him in the eye? He wanted her views on the Constitution, then he’d have ’em: “Well, it seemed that to meet the real needs of a small portion of the population, the Court set up something horrible that could— that could affect the vast majority of folks. Adversely, that is. Atticus, I don’t know anything about it— all we have is the Constitution between us and anything some smart fellow wants to start, and there went the Court just breezily canceling one whole amendment, it seemed to me. We have a system of checks and balances and things, but when it comes down to it we don’t have much check on the Court, so who’ll bell the cat? Oh dear, I’m soundin’ like the Actors Studio.”


“Nothing. I’m— I’m just trying to say that in trying to do right we’ve left ourselves open for something that could be truly dangerous to our set-up.” She ran her fingers through her hair. She looked at the rows of brown-and-black bound books, law reports, on the wall opposite. She looked at a faded picture of the Nine Old Men on the wall to the left of her. Is [JB: Owen?] Roberts dead? she wondered. She could not remember.

Her father’s voice was patient: “You were saying—?” “Yes sir. I was saying that I— I don’t know much about government and economics and all that, and I don’t want to know much, but I do know that the Federal Government to me, to one small citizen, is mostly dreary hallways and waiting around. The more we have, the longer we wait and the tireder we get. Those old mossbacks on the wall up there knew it— but now, instead of going about it through Congress and the state legislatures like we should, when we tried to do right we just made it easier for them to set up more hallways and more waiting—

Her father sat up and laughed.

“I told you I didn’t know anything about it.”

“Sweet, you’re such a states’ rightist you make me a Roosevelt Liberal by comparison.”

States’ rightist?”

Atticus said, “Now that I’ve adjusted my ear to feminine reasoning, I think we find ourselves believing the very same things.”

She had been half willing to sponge out what she had seen and heard, creep back to New York, and make him a memory. A memory of the three of them, Atticus, Jem, and her, when things were uncomplicated and people did not lie. But she would not have him compound the felony.

She could not let him add hypocrisy to it: “Atticus, if you believe all that, then why don’t you do right? I mean this, that no matter how hateful the Court was, there had to be a beginning—”

“You mean because the Court said it we must take it? No ma’am. I don’t see it that way. If you think I for one citizen am going to take it lying down, you’re quite wrong. As you say, Jean Louise, there’s only one thing higher than the Court in this country, and that’s the Constitution—”

“You are inconsistent,” said her father mildly.

“Why so?”

“You slang the Supreme Court within an inch of its life, then you turn around and talk like the NAACP.”

“Good Lord, I didn’t get mad with the Court because of the Negroes. Negroes slapped the brief on the bench, all right, but that wasn’t what made me furious. I was ravin’ at what they were doing to the Tenth Amendment and all the fuzzy thinking. The Negroes were—”

Earlier in the book, Atticus refers to Brown this way:

“I mean about the Supreme Court’s bid for immortality.”

Wow! I need to digest Atticus talking about the 10th Amendment and federalism.

Also, this scene offers a flashback to a distorted version of the trial of Tom Robinson where he is (gasp!) acquitted because he proved the sex was consensual, and the defendant (who is not even named) had lost his arm in a sawmill accident:

Against Mr. O’Hanlon’s humming harangue, a memory was rising to dispute him: the courtroom shifted imperceptibly, in it she looked down on the same heads. When she looked across the room a jury sat in the box, Judge Taylor was on the bench, his pilot fish sat below in front of him writing steadily; her father was on his feet: he had risen from a table at which she could see the back of a kinky woolly head. . . . Atticus Finch rarely took a criminal case; he had no taste for criminal law. The only reason he took this one was because he knew his client to be innocent of the charge, and he could not for the life of him let the black boy go to prison because of a half-hearted, court-appointed defense. The boy had come to him by way of Calpurnia, told him his story, and had told him the truth. The truth was ugly. Atticus took his career in his hands, made good use of a careless indictment, took his stand before a jury, and accomplished what was never before or afterwards done in Maycomb County: he won an acquittal for a colored boy on a rape charge. The chief witness for the prosecution was a white girl. Atticus had two weighty advantages: although the white girl was fourteen years of age the defendant was not indicted for statutory rape, therefore Atticus could and did prove consent. Consent was easier to prove than under normal conditions— the defendant had only one arm. The other was chopped off in a sawmill accident. Atticus pursued the case to its conclusion with every spark of his ability and with an instinctive distaste so bitter only his knowledge that he could live peacefully with himself was able to wash it away. After the verdict, he walked out of the courtroom in the middle of the day, walked home, and took a steaming bath. He never counted what it cost him; he never looked back. He never knew two pairs of eyes like his own were watching him from the balcony.


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Jul 14, 2015

Now that the Court Challenges Are Over, The Cracks In Obamacare Come Into Focus

Shortly after King v. Burwell was decided, I noted that now that the Chief Justice has effectively put on ice any future challenges to Obamacare, the law will, at last, have to stand on its own two feet–and it would be quite wobbly. Obamacare’s biggest challenge is Obamacare. Two stories from the past week shine a light on these fissuring cracks.

First Slate (of all places) writes of Obamacare’s skyrocketing premiums. It begins:

Now that the Supreme Court has once again saved Obamacare, can we have an honest talk about it?

Yes. While the challenges to the law were pending, supporters dare not say anything negative, lest it get in the way of the Chief’s Justice’s resurrection of the bill no one read. But now, we can have that “honest talk.”

The bill for the health care expansion is coming due, just as the recipients will be heading to the ballot box to vote in the first primaries for the 2016 election. More than a few are likely to be annoyed.

Last week Oregon’s insurance commissioner, Laura Cali, announced that the state had approved a 25 percent premium increase for the largest health insurer on the state’s exchanges. The second largest insurer did even better: It received permission to boost its monthly charge to consumers by 33 percent.

Oregon might be the first health insurance exchange equivalent of a penguin getting shoved off an ice floe, but it won’t be alone in the freezing-cold waters for long. For example, BlueCross BlueShield of Tennessee requested an average 36 percent price increase for the plans it offers—after receiving a 19 percent bump last year. And that sounds like a relative bargain compared with Minnesota and New Mexico, where the BlueCross BlueShield family is looking for increases of more than 50 percent. Even if the final numbers are lower than the asks, it seems quite likely these states will approve substantive premium increases.

The problem is simple. As Trudy Lieberman reported this month in Harper’s, the ACA made a decent stab at solving the problem of Americans lacking insurance. Unfortunately, the bargain struck to get the bill to a point where lobbyists for the hospital, insurance, and pharmaceutical industries to sign on, or at least not fight it, did not adequately address the issue of overall medical costs.

Yes, the ACA was a series of bargains. It was not, as the Chief Justice inaptly reduced it, all about “improving” health care markets. There were many competing interest at stake. One of the biggest compromises was to do little-to-nothing to actually control costs. And now, costs continue to rise. And for those ineligible for subsidies, premiums may rise so high it becomes no longer worth it to buy insurance. Yes, we are not out of the woods.

In the meantime, you shouldn’t need a political consultant to tell you why consumers paying hundreds of dollars—or even more than $1,000 a month—for health insurance they are required to buy and often can’t afford to use might well get angry. Once you name something the Affordable Care Act, people oddly expect the product on offer to be affordable. Who’d have thunk it?

Second, The Hill Reports that Lobbyists are launching a full-frontal assault on the “Cadillac Tax” which goes into effect in 2018.

A coalition of K Street health giants are teaming up to fight the ObamaCare tax on high-cost insurance plans known as the “Cadillac tax.”

The newly launched campaign, called the Alliance to Fight the Forty, includes more than a dozen pharmaceutical companies, insurance plans and unions including Pfizer, Blue Cross Blue Shield and the Laborers International Union.

The group, led by the American Benefits Council, filed a lobbying registration Friday afternoon.Efforts to fight the Cadillac tax have amplified in the wake of a recent Supreme Court ruling affirming the Affordable Care Act late last month. With no major court challenges remaining against the law, lobbyists are redoubling their efforts to peel back particularly unfavorable provisions.

I’ve written at great length about the Cadillac Tax. Long story short, it imposes a 40% excise tax on most generous health insurance plans (including my own). It will result in two-thirds of businesses taking steps to avoid the tax, nearly 90% of employer-sponsored plans being cancelled, and employees being put onto the Obamacare exchanges. Of course businesses want to stop this. But they can’t.

Can’t we just get rid of it? The Obama Administration insists they will veto it for one simple reason. Even with CBO’s voodoo math, the only way to score this behemoth as budget neutral was to account for the billions of dollars the cadillac tax would bring in. If the Cadillac Tax is eliminated, where is that revenue going to come from? The negative economic impact of Obamacare will skyrocket.

This morning the New York Times used this sentence to describe the President’s proposed deal with Iran.

“Mr. Obama will be long out of office before any reasonable assessment can be made as to whether that roll of the dice paid off.”

I think this sentiment describes so much of what has happened since 2009. The benefits can only be judged in the long-term. The President has prematurely taken a victory lap and spiked the football. The real challenges begin as his term winds down.

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Jul 14, 2015

NYT: “Mr. Obama will be long out of office before any reasonable assessment can be made as to whether that roll of the dice paid off.”

What is the Times referring to here: (a) Iran; (b) Obamacare; (c) Executive Power; (d) all of the above.


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Jul 13, 2015

RBG on Confederate Flag Case: “It would have been terrible if the court came out the other way”

Jess Bravin asked Justice Ginsburg about Walker v. Texas Sons of Confederate Veterans. Her response:

“It would have been terrible if the court came out the other way,” Justice Ginsburg said.

Let’s make no mistake what was driving her opinion in that case. It certainly wasn’t the scope of government speech. I can’t imagine a decision about government speech being “terrible” one way or the other, no more than the sign case (Reed v. Gilbert) was terrible. The motivation for this decision by the Texas Department of Motor Vehicles, and the five Justices in the majority, was to stop speech that would offend–the very speech entitled to the greatest protections. Look no further than the Washington Redskins decision from earlier this week, which relied on Walker.

My working thesis is that Justice Scalia lost the majority opinion when Thomas flipped. I can’t fathom why Thomas would assign the majority opinion to Breyer. Couldn’t he, for once, command a 5-4 majority for a First Amendment Opinion?


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Jul 13, 2015

Supreme Court Roundup Today in Denver

Today I will be joining an august panel for a Federalist Society Supreme Court roundup in the Mile High City. The event begins at 11:30 at Maggiano’s at Little Italy, 500 16th Street. Here is the agenda:

Opening Remarks:

  • The Honorable Allison Eid, Colorado Supreme Court


  • Richard Westfall, Hale Westfall LLP, Former Colorado Solicitor General
  • Professor Alan Chen, University of Denver Sturm College of Law, William M. Beaney Memorial Research Chair and Professor
  • Professor Josh Blackman, South Texas College of Law, Founder of The Harlan Institute and FantasySCOTUS.net


  • The Honorable Robert Russell, Former Judge of the Colorado Court of Appeals


You can find registration information here.

See you there!

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Jul 12, 2015

Reflections on my third year of teaching

Following from my posts after my first and second year of teaching, here are the syllabus, examinations, lectures, and evaluations for the four classes I taught this academic year:

Fall 2014

Spring 2015

Overall, I have been very pleased with my improvements in teaching. I’ve noticed a few shifts in the comments. First, During the first, and to a lesser degree second year, many of the comments focused on my substantive skills–that I did not know the material well enough, that I did not explain the material well enough, that I wasn’t effective at answering questions, etc. These remarks killed me, but I knew they were (mostly) accurate–I say mostly because the perception of being “new” creates the not-always-accurate bias that I don’t the content (and I was brand spanking new!). Fortunately, those substantive comments have trickled out. My evaluations from my third year for Property I, Property II, Constitutional Law, and a Federalism Seminar, had very few critiques on the substance. The metrics that seems to be the most useful–answers questions effectively–has steadily increased. My scores for the four classes I taught during the 2014-15 year were 4.23 (Prop I), 3.91 (Prop 2), 4.76 (ConLaw), and 4.67 (Seminar). These were the highest to date. In years past I averaged in the mid-threes. Likewise, my scores for “knowledge of subject matter” were 4.35 (Prop I), 4.6 (Prop 2), 4.98 (ConLaw), and 4.87 (Seminar) were much higher than in the past when I averaged high-threes. It may sound easy to master a subject when taking the exam, but mastering the teaching of a subject frankly isn’t. It can’t be accomplished in one semester, or even one year. I’ve worked hard to learn it so well that I can teach it well. I think I finally hit my stride in the third year.

Second, curiously, now that the substantive comments are fading out, a lot of personal comments have faded in. In particular my remarks during the Fall 2014 semester for Property I and II had a small, but distinctive number of students who simply didn’t like me. They thought I was rude, pretentious, and inconsiderate. I’m hoping these were outliers because I had never seen those before, and they didn’t repeat during the Spring 2015 semester. There is an odd phenomenon, which my colleagues have confirmed, where a few malcontent students promote a perception of professor, which echoes throughout the section on social media (they have section facebook pages, which I deliberately avoid), so much so that many students write almost the exact same comment, verbatim. It’s fascinating to look at the patterns. In any event I take the comments seriously, and I don’t want students to think that way about me. In any event, if they are focusing on me, and not my teaching, then I’ve done what I need to do.

Third, an apparent trend is that my scores in ConLaw have, as could be expected, quickly eclipsed my progress in Property. This is a mixed blessing, as I will explain. I was hired to teach Property alone, and understood that. ConLaw only opened up after a Professor took Emeritus status, and two Professors passed away in the same year, so there had to be some shifts in coverage.  Now, for the foreseeable future, I will likely teach two semesters of Property and two semesters of ConLaw each year. Even so, I take seriously my ability to effectively teach a class, which admittedly, is not my primary area of expertise. Frankly, students don’t care what you like to write about. What exacerbates this problem, for me in particular, is how high profile my constitutional law interests are, in light of my book, blog, speaking, etc. A decent number of my comments in Property says something like “I wish I could take him for ConLaw.” Those aren’t too bad. A smaller number say “He should be teaching ConLaw instead of Property.” Those are not good. In the absence of my ConLaw expertise, those comments would disappear, and my Property evaluations would be buoyed. But in any event, I still strive to bring the same passion I have for ConLaw to all of the classes I teach.

Since I started teaching in 2012, I’ve kept a detailed spreadsheet with all of my scores and comments. I hesitated drawing any patterns or trends prematurely, but with six semesters, and twelve total classes completed, I feel more comfortable in assessing my progress. Also, this year I was promoted from Assistant to Associate Professor, and am grateful for the (literal and figurative) vote of confidence by colleagues. I measure the progress along what I see as the five most important metrics on the evaluation: (1) overall professor evaluation (average of all other scores), (2) knowledge of subject matter, (3) preparation, (4) answered questions effectively, and (5) effective as a professor. The last two are probably the most critical.

I’ve only taught ConLaw twice, but so far I have been extremely pleased with my progress. You can read some of the comments for a sample, but on the whole the students are really, really happy. 98% of the students gave me a 5 for command of subject matter, enthusiasm, and preparation (One refusenik gave me a 4 for each question). ConLaw-Trends

Forty-four of the sixty-four students that filled out evaluations offered written comments, and they were overwhelmingly positive. The written comments matter far more to me than the numerical scores.

Several students wrote that this was their favorite class, and praised my enthusiasm. These remarks bring me more contentment than I can measure:

  • By far my favorite class of the year! Really valued your knowledge and enthusiastic attitude on the subjects! Learned os much!
  • The subject matter itself is difficult. Blackman’s enthusiasm transfers to the students.
  • Professor Blackman is the “model” by which all professors of law should base their class organization, presentation style, knowledge and enthusiasm of the subject matter, and accessibility. Professor Blackman is a TREMENDOUS asset for South Texas College of Law.
  • I really enjoyed the class–always engaging.
  • I enjoyed Professor Blackman’s class and his obvious passion and enthusiasm for the subject
  • No professor cares more about the subject that they teach than Professor Blackman! His passion stimulates learning and encourages people to be engaged on a deeper understanding! Will take Professor Blackman in every course he teaches going forward! Great class!
  • Very enthusiastic. Made it easier to pay attention and stay engaged.
  • You were an amazing professor and I look forward to taking more classes from you in the future.
  • His enthusiasm and general passion for the subject made it easy to learn and appreciate the class.
  • Favorite class this semester. Wonderful time. Thanks!
  • Best professor I have had. Knows the material very well. Engaging, fun and interesting class.
  • Made the subject matter very interesting.
  • I came in here thinking I wouldn’t like this class but it has turned out to be my favorite. You did a great job teaching the material! I’ve probably learned more in this class than any other in law school, thus far!
  • Blackman is impressive in his teaching style, knowledge of material, and effectiveness in commanding the course. I am happy I have taken COnLaw from him and will hopefully take other courses taught by him.
  • Great teacher: very passionate about the subject and knowledgeable about all areas surrounding the dates and times pertaining to the Constitution.
  • Overall one of my favorite classes/professors. Prof. Blackman was an excellent professor who is extremely knowledgeable about this information. He did a wonderful job presenting the material in a way that was easy to learn and understand. I loved the structure of the course and the wide array of topics we covered. Highly recommend Prof. Blackman.

These last three brought tears to my eyes.

  • This has been my best experience in law school thus far. I have grown as a person, as a future lawyer, and most importantly as a contributing citizen of my state and country. Prof Blackman is inspirational and very intelligent. I thoroughly enjoyed this class and will recommend it to my fellow students.
  • There have been few times in my life as a student that I’ve been inspired by a professor. This is one of those times. Prof. Blackman sparked my interest in the Constitution. I looked forward to attending class every day and I never felt bored or disinterested. Prof. Blackman is at the cutting edge of constitutional issues and I am so grateful to have had him as a professor.
  • By God, the man has passion for the constitution. This class made one of the most fascinating subjects even better. I learned something new every day. I’m grateful for this class, I feel lucky.

One student praised me for staying on schedule.

  • The course was very well conducted. I love how he stayed on the schedule. Stimulating discussion. Challenging but interesting.

This is something most students never appreciate, but something I pride myself on. At the beginning of the semester, the syllabus lists what will be covered in each class, and I never fall behind. It hasn’t happened in three years. One of the things that drove me nuts in law school was a professor who never stayed on schedule, and said “read 20 pages from where we finished.” Staying on schedule requires a lot of discipline and planning, and classroom clock management skills. I pay very close attention to the time, and adjust the pace accordingly. Sometimes I slow down, sometimes I speed up. Critically, if we start a case on Thursday, we finish it on Thursday, rather than trying to continue it midstream on Tuesday when no one remembers what we were up to. Cognitively, learning in units is very effective. It pays dividends the students will never even realize.

There were a smattering of negative comments.

Three students commented about the format for my final exam. I give a two question massive fact patterns, with a word limit.

  • Prof. Blackman, you are brilliant. Your command of the material, content and course are inspiring. That said, I fear your exam will be as lethal as the one from Harvard in 1900. Please don’t do that us.
  • Having a two question final does not adequately demonstrate our knowledge of constitutional law. It is a hit or miss final.
  • Like the Prof and Class but the format of the final is ridiculous.

This year the ConLaw exam was probably the toughest exam I’ve ever given, and for the most part, the students rose to the occasion.

I offer the word limit to ensure that all students have the same canvas to work with, and don’t reward some students who can write thousands of words, hoping to occasion onto the right answer. I used to use a 500 word limit in Property and a 1,000 word limit for ConLaw. After some further deliberation, next year I will use a 1,000 word limit in Property as well. Very few students in ConLaw seemed to complain about that limit, so it will make the students more at ease.

One comment I used to get a lot more, but not as much now, is that I speak too quickly.

  • Excellent class. Only minor comment is that he wants to get so much information out at once that at times it can be incomprehensible. Real motor-mouth. Extremely knowledgeable.

This is something I’ve worked on. Slowing down my New York cadence for Texas sensibilities has been tough, but I’ve gotten better. The trick is to take more pauses. Even if your words don’t come out slower, by giving a break between clauses, the brain can reconstruct what was said. Trust me, it works.

Three out of 64 comments concerned bias.

  • I would appreciate if teachings weren’t so one-sided. I don’t have enough time or space to go into detail. Include the whole truth. Blackman was very knowledgeable but left import details out of his teaching.
  • I love your enthusiasm and passion for the subject. It makes it more interesting and easier to learn. I do feel like there are portions of the class (Obamacare or DAPA/DACA) that felt like there was a political sway, but I understand that is part of what comes with your sincere passion.
  • Knowledge is impressive. I think you did a good job of balancing your perspective. But I think it is uncalled for to suggest that people should restrict their activism to the ballot box. It sounds like you are trying to “keep people in their place.”

This last comment made me chuckle. A point I try to make in class is that democracy, and not the courts, should (in most cases) be a preferred method for social change. This is a concept so foreign to law students, who are nursed on judicial power, and know very little about the legislative process. But if I am faulted for favoring Article I over Article III, guilty as charged. Relatedly, students have a warped view of executive power, due in no small part to the mantra of the current presidency. At one point when talking about immigration, I said what should the President do if Congress refuses to pass a law he wants. The student replied, sincerely, issue an executive order. I cringed.

As readers of this blog are no doubt aware, right of center professors–especially those teaching constitutional law–are quite rare in the legal academy. I can probably count all of the Federalist Society members that teach ConLaw not at George Mason on my fingers and toes. I’ve worked really hard to avoid the appearance of bias, but this is especially difficult because of my reputation–I walk into class bearing a scarlet R. This is especially true in ConLaw, where I often appear on local radio and in the local media talking about the Supreme Court. My strategy has been, thus far, has been to go out of my way to cover in depth the side I disagree with. I always let students who disagree with me speak uninterrupted (even when I would otherwise interrupt a student I agree with who goes off topic). And in a few cases where my views are really well pronounced (Obamacare, DAPA/DACA, etc.), I tell the students my priors. I can’t hide them, so I don’t run from them.

Although a few students also wrote that I allowed both sides to speak, which was reassuring.

  • Obvious command of ConLaw knowledge combined with enthusiasm for applying ConLaw to current issues kept class interesting. He allows students to disagree, which helps examine ideas.
  • Professor Blackman did not evade “hot topics.” His passion for constitution and the liberty it provides allowed class discussions to be honest and productive in light of Constitution. Loved the class!!
  • Excellent professor and you did a fantastic job of being sensitive and respectful during discussion of controversial topics.

It’s true. We discuss topics like abortion, same-sex marriage, sterilization, internment, slavery, and many others. Contrary to what is an unfortunate trend in education, on the first day of class I promise my students I will offend them at some point, and urge them to change sections if they don’t want to be offended. We deal with sensitive topics, and I try to do so in a respectful manner, but I will not shy away because it may make people uncomfortable.

Curiously, what perplexes me is that a few Property students commented I’m biased! These boggle my mind. There is very, very little in Property that is susceptible to ideology. My working hypothesis is that I am generally a formalist–especially in a common law class like Property–and prefer the Restatement (First) to the Restatement (Second) or (gasp!) Restatement (Third). This may be alien to a lot of students who are perhaps otherwise trained to adore whatever the California and New Jersey Supreme Courts write about the common law. (I often tell my students if the book has a case from California, they are about to reverse the common law because fairness).

My evaluations from Property I are generally trending upwards. I (somehow) did really well my first semester, when in truth I felt least prepared. I think the students pitied me, as I cratered the following semester. But since then, I’ve been trending upwards. Property I is the hardest class to teach in my package (future interests!) so I’m pleased the numbers are improving.


My Property II scores are erratic–up, down, up, down, up. This graph perplexes me the most. It’s not a night and day divide either (I indicate night classes with (n) and day classes with (d)). Sometimes the night students like me better, and sometimes the day students like me better. This graph confounds me because I know–at a minimum–I have a much better grasp of the subject matter each semester, yet the red line bounces around with the class averages. One other related problem, that is beyond my control, is that students perceive the topic on the Takings Clause in Property as teaching ConLaw, and get frustrated–teach property they say! That is property, and it is in the curriculum for Property II, so deal with it. In any event, I am teaching Property II this fall, and hope to get the trend upwards. I’m not happy with these inconsistent scores.


Overall, my numbers are trending upward over all of my classes, though it is difficult to compare different course–apples to oranges.

image (4)


I will report back this time next year with my reflections after four years of teaching.

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Jul 11, 2015

To Kill A. Finch

By now, you’ve no doubt read reviews for Harper Lee’s new book, “Go Set A Watchman.” (If you haven’t, stop reading, because there will be spoilers). Two decades after Mockingbird concluded, Atticus Finch, the legend, is a bigot. The New York Times reports that Atticus attended a KKK meeting, opposes integration, and embraces Jim Crow. According to the WSJ review, Finch refers to Brown v. Board of Education as “the Supreme Court’s bid for immortality.” In the first book, a Mockingbird was killed. In the sequel, A. Finch was killed.

My views on this book somewhat resemble my views on post-enactment legislative history, although with a twist. Lee wrote Watchman years before Mockingbird. The “Atticus” she developed in Watchman–though it took place decades after the events in Mockingbird–was written first. The “Atticus” she developed in Mockingbird–thought it took place decades before the events in Watchman–was written second. As far as I am concerned, these are two different characters that bear the same name. Indeed, many of the facts from Watchman don’t match up with Mockingbird. For example, in Mockingbird one of the most pivotal moments was Tom Robinson’s conviction for rape. But in Watchman, Robinson was acquitted. These are BIG differences. The Maycomb of Mockingbird is not the Maycomb of Watchman.

Further, it is unclear if Lee ever wanted Watchman to be released. Had she been capable, perhaps she would have written the Atticus character differently. Or not. This, unfortunately, we may never know. So in short, the Atticus of Mockingbird remains as Gregory Peck famously played him. The Atticus of Watchman (which I haven’t yet read) is someone entirely different.

(I feel like I just wrote a Middle School Book Report–no doubt countless students will have to compare and contrast the two Atticuses (Attici?) for decades to come).

Update: Of late, I’ve noticed that many newspapers have started to cover social media reactions as if they are an actual story. The New York Times often embeds of random man-on-the-tweets to measure the zeitgeist. While reading such a story in the WSJ, I noticed that they embedded the tweet of some guy who included a link to the tweet I wrote about this post. This is news!


If only they included an article link to my blog, rather than a link to the tweet, I may have gotten some traffic out of it. Oh well.

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Jul 9, 2015

Texas v. U.S. Update: DHS Identifies 500 More Three-Year Employment Authorizations That Were Accidentally Mailed After Injunction

This is the case that doesn’t end. On Tuesday, Judge Hanen threatened to drag DHS Secretary Jeh Johnson to Brownsville if the government does not rectify nearly 2,000 three-year employment authorizations issued after the injunction. Today, DHS filed another advisory, indicating that it discovered an additional 500 three-year employment authorizations that were issued after the injunction. You have to read it to believe it.

Finally, as part of its ongoing efforts to keep the Court promptly apprised of developments, Defendants file this Advisory to inform the Court of information that recently came to the attention of counsel for the Government regarding a relatively small number of three-year EADs that were approved and issued by the Department of Homeland Security (DHS) prior to the Court’s entry of its preliminary injunction, were mailed to the intended recipients prior to the injunction, returned by the Postal Service as undeliverable, but which were then re- mailed after the Court’s injunction. Defendants will also update the Court on this issue as part of the July 31, 2015 status report.

According to DHS’s currently available information, a small percentage of three-year EADs approved, issued, and mailed prior to the injunction – approximately 500 of the EADs approved and issued – were then returned as undeliverable and subsequently re-mailed to an updated address after the Court’s entry of its injunction. These were EADs provided to individuals who qualified for 2012 DACA. Government counsel has been advised that these cards were re-mailed pursuant to standard USCIS mail processing procedures by a mailing contractor. Defendants are continuing to examine the circumstances leading to the re-mailings, but are filing this Advisory now to ensure that the Court is promptly apprised of this information. DHS is taking immediate steps to address the issue. DHS is undertaking an expedited process of corrective action for the approximately 500 three-year EADs re-mailed after the injunction. All such three-year EADs will be converted to two-year EADs, and DHS will expeditiously seek the return of the three-year EADs that were re-mailed – as it is doing for the approximately 2,000 individuals addressed in the Government’s May 7, 2015 advisory.

Let me put this in perspective. Before the judge’s injunction, DHS stated on the record that it would not issue any three-year expanded DACA work authorizations. It turns out, DHS actually sent many of these, notwithstanding its representation to the court. After the injunction, DHS was no longer able to send out any three-year authorizations. It turns out that they mailed 2,000 after the injunction. Now, we learn that 500 were mailed before the injunction, they were returned to sender, and re-mailed after the injunction.


And what about the 2,000 outstanding work authorizations? They are waiting for the recipients to mail them back.

The Government recognizes the import of the Court’s concerns regarding the progress of the Government’s efforts relating to the approximately 2,000 post-injunction issuances. In addition to other measures that are underway, the three-year DACA grants and EAD cards have been invalidated for all of these individuals and changed to two years; the SAVE database that states use to verify eligibility for driver’s licenses and other state benefits has been updated to reflect the two-year authorizations for all of these individuals; and USCIS has now sent two rounds of individualized letters demanding the return of the three-year EAD cards and warning recipients that a failure to return the card could affect their deferred action and employment authorization. The Government has already secured return of nearly 1200 of these three-year EADs. We are now executing additional steps to secure return of the remaining three-year EADs.

Hopefully those eight-hundred outstanding licenses are not in sanctuary cities, where federal immigration officials have no authorities.

Judge Hanen may actually blow a gasket here. As I noted earlier this week, I don’t think Judge Hanen’s order to demand Secretary Johnson appear is appropriate, but DHS has shown a serious disregard for the court’s order, and in general gross incompetence. The “too big to fail” or “governmental incompetence” excuse doesn’t fly here.

There is no indication that they are seeking mandamus yet. The parties will file a joint status report on July 31, which will hopefully “rectify” the situation. Don’t count on it.

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Jul 7, 2015

Breaking: Judge Hanen Orders DHS Secretary Jeh Johnson to Brownsville

Three days before the Fifth Circuit hears arguments in Texas v. United States, things are still cooking in Brownsville. Long story short, after Judge Hanen issued his injunction, DHS granted nearly 2,000 applications.

In an order issued today, Judge Hanen expressed his frustration that the government still has not taking action to rectify the situation. As a result, he scheduled a hearing for August 19, 2015. “Each individual Defendant must attend and be prepared to show why he or she should not be held in contempt of Court.” Who are the individual defendants? Secretary of DHS Jeh Johnson, the Commissioner of U.S. Customs and Protection, the Deputy Chief of U.S. Border Patrol, the Director of U.S. Immigration and Customs Enforcement, and the Director of U.S. Citizenship and Immigration Services. Yeah, basically, the entire DHS brass.

Here is the relevant portion of the order:

The Court was first apprised by the Government of the violations of its injunction on May 7, 2015. It admitted that it violated this Court’s injunction on at least 2,000 occasions—violations which have not yet been fixed. This Court has expressed its willingness to believe that these actions were accidental and not done purposefully to violate this Court’s order. Nevertheless, it is shocked and surprised at the cavalier attitude the Government has taken with regard to its “efforts” to rectify this situation. The Government promised this Court on May 7, 2015, that “immediate steps” were being taken to remedy the violations of the injunction. [See Doc. No. 247]. Yet, as of June 23, 2015—some six weeks after making that representation—the situation had not been rectified. With that in mind, the Court hereby sets a hearing for August 19, 2015, at 10:00 a.m. Each individual Defendant must attend and be prepared to show why he or she should not be held in contempt of Court. In addition to the individual Defendants, the Government shall bring all relevant witnesses on this topic as the Court will not continue this matter to a later date. The Government has conceded that it has directly violated this Court’s Order in its May 7, 2015 Advisory, yet, as of today, two months have passed since the Advisory and it has not remediated its own violative behavior. That is unacceptable and, as far as the Government’s attorneys are concerned, completely unprofessional. To be clear, this Court expects the Government to be in full compliance with this Court’s injunction. Compliance as to just those aliens living in the Plaintiff States is not full compliance.

If the government can remedy the situation, the hearing will be cancelled.

If the Government remedies this situation and comes into compliance with this Court’s injunction by July 31, 2015, it shall include a summary of that situation in the July 31, 2015 report to the Court. If the Court is satisfied with the Government’s representations, it will cancel the August 19, 2015 hearing. Otherwise, the Court intends to utilize all available powers to compel compliance.

Either way, expect sanctions.

This Court began its last hearing by explaining its reluctance to sanction any party or attorney. If nothing else, sanctions bog both the parties and the Court down on side issues that detract their attention from the real focus: the merits and resolution of the case. Nevertheless, no reasonable person could possibly consider a direct violation of an injunction a side issue. Furthermore, at some point, when a non-compliant party refuses to bring its conduct into compliance, one must conclude that the conduct is not accidental, but deliberate. If these violations have not been corrected by the end of this month, absent very compelling evidence, which this Court will be glad to consider, the only logical conclusion is that the Government needs a stronger motivation to comply with lawful court orders. Neither side should interpret this Court’s personal preference to not sanction lawyers or parties as an indication that it will merely acquiesce to a party’s unlawful conduct.


[Disclosure: I filed a brief before Judge Hanen back in January. I could not have fathomed the twists and turns this case has taken since then].

Update: Apparently, there is some precedent here. In an 11th Circuit case from 2010 styled In re: U.S. Environmental Protection Agency, the court granted the EPA’s writ of mandamus “to substitute the appearance of the Assistant Administrator for Water of the Agency, Peter Silva, for the appearance of the Administrator of the Agency, Lisa Jackson, at a hearing about compliance by the Agency with orders entered by the district court that concern pollution of the Everglades.”

Judge Pryor, writing for the 11th Circuit granted the writ of mandamus, finding there are possible separation of powers problems with the district court’s refusal to allow the substitution.

The district court denied the motion for substitution and ordered the appearance of the Administrator who is a high-ranking official of the executive branch. See 5 U.S.C. § 5313. The Agency argues that compelling a high executive official to appear in a judicial proceeding encroaches on the separation of powers and, absent exigent circumstances, the judicial branch must respect the discretion of the executive branch to designate which high-ranking official should represent the Agency in a judicial proceeding. The record establishes no special need for compelling the appearance of the Administrator; the Assistant Administrator is an adequate substitute. Because the district court abused its discretion by compelling the appearance of the Administrator, and there is no other adequate remedy available, we GRANT the petition for a writ of mandamus and direct the district court to allow the substitution.

This order, though conditional on DHS failing to rectify the situation, is quite serious, and inappropriate. Unfortunately, it distracts from the serious rule of law issues attending DHS’s behavior by demanding the Secretary trek down to Brownsville. I suspect DOJ will find a way to resolve this situation before it gets to mandamus.

H/T @BrianWToth

Update 2: In a related case, the Federal Circuit granted the government’s petition for a writ of mandamus, blocking a deposition for Fed Chairman Ben Bernanke.

In pursuit of its claims, the investor seeks to depose Ben S. Bernanke, Chairman of the Board of Governors of the Federal Reserve. Before this court is the government’s petition for a writ of mandamus seeking to direct the Claims Court to issue a protective order. For the following reasons, we grant the petition.

H/T @InvCondemnation

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Jul 6, 2015

Attorney General Holder on Solicitor General Verrilli

In his interview with Tony Mauro, Eric Holder offers this praise for Solicitor General Donald Verrilli in response to a question about the government’s brief in the same-sex marriage case:

Did you have a significant role writing the government’s brief in that case?

No. I certainly talked to [Solicitor General] Don Verrilli, and we would meet every week and then more frequently when it came to particular positions in cases, and I saw the briefs before they got submitted. Solicitors general are extremely guarded in their independence within the department, but he’s not necessarily that guy. He’s a very collaborative person and he’d say, ‘This is the way I think we want to go with this argument.’ He kind of just bounces things off of people, and he and I have a good relationship. I think he is going to be seen as an extremely consequential SG, I think one of our greatest SGs.

Holder made a similar comment about Verrilli during the ACS Convention in June.

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Jul 6, 2015

Obamacare’s Biggest Challenge Is Still Obamacare

The first act of the Affordable Care Act from 2009-2012 was dominated by the enactment of the law, and the Supreme Court’s decision in NFIB v. Sebelius, upholding the mandate My first book, Unprecedented, told the story of Act 1. The second act stretched from 2013 till about last week, including the Presidential election and King v. Burwell. The ACA survived both of these hurdles.Unraveled, what will be my second book, tells the story of Act 2.  The third act is what happens now that the law is left to stand on its own two feet. What the legal challenges to Obamacare have always obscured is how unstable the law is all by itself.

The benefits of the ACA, which the President is fond of touting, are frontloaded. People can no longer be denied treatment for pre-existing conditions. (Although this only affected roughly 1.5 million Americans, a fairly small share compared to the 150 million number the Administration campaigned on). Twenty-six year olds can remain on their parents’ policies. Thanks to the payment of subsidies, which the Supreme Court blessed, nearly 13 million people have signed up for a qualified health plan. However, the number of Americans who benefit from this law is quite limited.

In a detailed analysis by Robert Laszewski (WonkBlog called him the “pundit of the year”) we see why the future of the ACA is far from “settled.” Consider this graphic.



For those eligible for Obamacare, an impressive 76% of those earning between 100% and 150% of the federal poverty level have signed up. [Note: the eligible up to 400% of the federal poverty level includes only those eligible for Obamacare’s insurance subsidies and does not include those in or eligible for employer-based plans.] But after that income level the percentage of those eligible who have signed up drops like a rock. The proportion of the population that is signing up for Obamacare is concentrated in the very lowest income categories while Obamacare is obviously unattractive to everyone else. It’s no secret that wealthier consumers who make more than 400% of the federal poverty level, and therefore don’t get an Obamacare subsidy, have seen their individual health insurance rates increase substantially because of the new law and haven’t been happy about it. So, this picture tells the story. Obamacare is unpopular because only the poorest have literally embraced it by buying it.

Obamacare remains unpopular among people who don’t stand to benefit. And this has had a serious impact on the cost of insurance.

After all of this and two complete open enrollments, only 40% of those who are eligible for Obamacare have signed up—far below the proportion of the market insurers have historically needed to assure a sustainable risk pool. ….  Apparently, many of these families have concluded that they are better off staying uninsured and paying for their health care costs out-of-pocket. … Of course if someone in the family is really sick even premiums and deductibles this high can be a great deal.

As a result, while short of a death spiral, the markets are much older than sicker than planned.

Because, the very poor aside, the people who most often see value from Obamacare’s high priced policies and big deductibles are those who know they will use it and take more money out of the system then they will put into it.

That the Obamacare exchange population is a lot sicker than the off-exchange population has been clearly demonstrated by a recent research brief,“Understanding the Exchange Population: A Statistical Snapshot,” from Truven Health Analytics.

And thus not sustainable in its current form.

To be financially sustainable Obamacare is going to have to attract a lot more people. This program, with its high after subsidy premiums and huge deductibles, simply isn’t attractive to most consumers—unless a person is really sick. So, far the only people attracted to Obamacare are the poorest—whose premiums and out-of-pocket costs are very attractive.

What will exacerbate the skewing of the markets is that premiums continue to climb, resulting in more people foregoing insurance. The New York Times reports that insurers are seeking increases of 20-40%.

Health insurance companies around the country are seeking rate increases of 20 percent to 40 percent or more, saying their new customers under the Affordable Care Act turned out to be sicker than expected. Federal officials say they are determined to see that the requests are scaled back.

Blue Cross and Blue Shield plans — market leaders in many states — are seeking rate increases that average 23 percent in Illinois, 25 percent in North Carolina, 31 percent in Oklahoma, 36 percent in Tennessee and 54 percent in Minnesota, according to documents posted online by the federal government and state insurance commissioners and interviews with insurance executives.

The Oregon insurance commissioner, Laura N. Cali, has just approved 2016 rate increases for companies that cover more than 220,000 people. Moda Health Plan, which has the largest enrollment in the state, received a 25 percent increase, and the second-largest plan, LifeWise, received a 33 percent increase.

Jesse Ellis O’Brien, a health advocate at the Oregon State Public Interest Research Group, said: “Rate increases will be bigger in 2016 than they have been for years and years and will have a profound effect on consumers here. Some may start wondering if insurance is affordable or if it’s worth the money.”

(This story was buried on July 3, along with some other important news about the President’s new abdication of immigration law).

People who switch plans will see higher premiums, and smaller networks.

A study of 11 cities in different states by the Kaiser Family Foundationfound that consumers would see relatively modest increases in premiums if they were willing to switch plans. But if they switch plans, consumers would have no guarantee that they can keep their doctors. And to get low premiums, they sometimes need to accept a more limited choice of doctors and hospitals.

Yes, an increase in 20-40% will result in more Americans deciding to simply pay the individual mandate. What is the government doing about it? The President wants to put pressure on insurers to lower prices.

President Obama, on a trip to Tennessee this week, said that consumers should put pressure on state insurance regulators to scrutinize the proposed rate increases. If commissioners do their job and actively review rates, he said, “my expectation is that they’ll come in significantly lower than what’s being requested.”

Yeah, this doesn’t work. The insurers are already seeing the law is more expected than they planned.

Insurers with decades of experience and brand-new plans underestimated claims costs.

“Our enrollees generated 24 percent more claims than we thought they would when we set our 2014 rates,” said Nathan T. Johns, the chief financial officer of Arches Health Plan, which covers about one-fourth of the people who bought insurance through the federal exchange in Utah. As a result, the company said, it collected premiums of $39.7 million and had claims of $56.3 million in 2014. It has requested rate increases averaging 45 percent for 2016.

What about the President’s promise that insurers will spend 80% of premiums on medical care? It hasn’t been enough.

Federal officials have often highlighted a provision of the Affordable Care Act that caps insurers’ profits and requires them to spend at least 80 percent of premiums on medical care and related activities. “Because of the Affordable Care Act,” Mr. Obama told supporters in 2013, “insurance companies have to spend at least 80 percent of every dollar that you pay in premiums on your health care — not on overhead, not on profits, but on you.”

In financial statements filed with the government in the last two months, some insurers said that their claims payments totaled not just 80 percent, but more than 100 percent of premiums. And that, they said, is unsustainable.

The insurers simply underestimated the costs of Obamacare.

At Blue Cross and Blue Shield of Minnesota, for example, the ratio of claims paid to premium revenues was more than 115 percent, and the company said it lost more than $135 million on its individual insurance business in 2014. “Based on first-quarter results,” it said, “the year-end deficit for 2015 individual business is expected to be significantly higher.”

BlueCross BlueShield of Tennessee, the largest insurer in the state’s individual market, said its proposed increase of 36 percent could affect more than 209,000 consumers.

“There’s not a lot of mystery to it,” said Roy Vaughn, a vice president of the Tennessee Blue Cross plan. “We lost a significant amount of money in the marketplace, $141 million, because we were not very accurate in predicting the utilization of health care.”

And make no mistake. The Administration’s decision to exempt millions from the mandates due to the so-called “hardship” exemption further skewed these risk pools. All of the executive action that saved the law in 2013 has set it on a shaky trajectory going forward.

Things do not get better for insurers anytime soon.

Reinsurance subsidies disappear after 2016, causing premiums to go even higher.

How much support does it provide? If you use the data from the2016 draft actuarial value calculator produced by CMS, you can compute that the subsidy will still be about 3% of premiums for 2016.  It was higher in 2014 and 2015. How will the ACA continue when prices increase at least 3% more just due to the elimination of this single subsidy.  The naive might think that 3% is not all that much.  And, without taking adverse selection into account, I would expect the market to shrink only by about an equal percentage.  But if history and economics tells us anything — and it does — because of adverse selection, the actual price increase will be greater and the resulting decline in enrollment will be greater.

And the risk corridors also end after 2016.

Insurers may not have to wait until 2017 for Risk Corridors to disappear.  They are already in grave trouble.  Congress also never appropriated any money for Risk Corridors. And this wasn’t an accident. The statute, as written, depends on assessments on insurers based on a formula to magically equal payments out to insurers based on a formula over the 3-year span of the program.  We are already seeing, as many predicted, however that such an assumption was unwarranted.  Due perhaps to loss leader pricing and the predictable propensity of consumers to pick precisely those plans that were charging too little relative to actuarial risk, it appears that, on balance, at least after what I would hope would be clever but lawful accounting, that few insurers are making enough money under Obamacare policies to provide any funding to the many insurers who gained volume at the expense of profitability.

This week, Aetna acquired Humana. Expect to see more and more insurers consolidate, creating an oligopoly of providers that can weather the ACA storm.

For most Americans, the cost of Obamacare has and will continue to exceed the benefits of the law. And those costs will continue to kick in. The Cadillac Tax–a 40% excise tax on generous policies people law (including my own)–will go into effect in 2018. This will result in two-thirds of businesses taking steps to avoid the tax, and nearly 90% of employer-sponsored plans being cancelled, and employees being put onto the Obamacare exchanges.

The President has prematurely taken a victory lap and spiked the football. The real challenges begin as his term winds down.

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Jul 5, 2015

When Rand Paul Met Eric Holder

In Tony Mauro’s interview of Eric Holder, the former Attorney General relays a meeting with Senator Rand Paul. According to Holder, Paul told Holder about his NSA lawsuit as the meeting concluded.

It has been interesting to see [Republican Sen.] Rand Paul at the forefront.

Yeah. He and I had lunch. It was breathtaking to see the amount of agreement that we had on this subject. As he left he said, ‘But I’m suing you.’ I said, ‘OK, fine.’ I don’t know what he’s suing me for, but he was suing me for something else.

Rand Paul has a very different account of the meeting in his memoir Taking a Stand.  According to Paul, it was Holder who brought up the topic at the outset of the meeting.

The attorney general greeted me in a conference room decorated with elaborate murals and included a portrait of Bobby Kennedy. He laughed as we shook hands. “I understand you’re suing me,” he said.

Paul also relayed this anecdote from Holder that the Administration’s view towards the NSA was not “monolithic.”

Again, I was struck by the irony, and as I left I continued to express my disbelief to Holder. “How could our first African American president condone pervasive spying on Americans?” I asked.

“Let’s just say the administration’s position on the NSA is not monolithic,” he said.

He left it at that, which only left me with more questions. Did the attorney general mean he was against the spying? If so, why was his voice falling on deaf ears? As I walked away, I had an uneasy feeling and less faith than ever in the way the administration and the NSA were carrying out their surveillance program.

Holder said Paul brought it up as the meeting was concluding. Paul said Holder brought it up as the meeting began.

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Jul 3, 2015

No “Motor Vehicle Campers” in the Park

A West Jefferson, Ohio law provides:

It shall be unlawful for any person … to park … upon any street … in the Village, any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle for a continued period of twenty-four hours.

Andrew Cammeleri was given a citation for parking her pickup truck for longer than 24 hours. Does a pickup truck fall within this statute? No she argued. A pickup truck is not a “motor vehicle camper,” a “farm implement,” or a “non-motorized vehicle.” The trial court found that the legislature omitted the comma, and thought the intent clearly captured the pickup truck.

{¶5} The trial court held that when reading the ordinance in context, it unambiguously applied to motor vehicles and “anybody reading [the ordinance] would understand that it is just missing a comma.” The trial court then found Cammelleri guilty of violating West Jefferson Codified Ordinances 351.16(a) and ordered her to pay court costs. …

Judge Hendrickson of the Court of Appeals for the Twelfth Appellate District of Ohio reversed. As drafted, the defendant did not have a “motor vehicle camper.”

{¶ 15} In this instance, the intent of the ordinance is plain from the grammar andlanguage used in West Jefferson Codified Ordinances 351.16(a). According to ordinary grammar rules, items in a series are normally separated by commas. Chicago Manual of Style 312 (16th Ed.2010). The items included in the series of motor vehicle camper, trailer, and farm implement are separated by commas. In order to interpret the ordinance in the way the village suggests, prohibiting parking either a motor vehicle or a camper upon a street in the village for over 24 hours, a comma must be inserted between the phrase “motor vehicle” and the word “camper.” However, no such comma exists. According to the rules of grammar, “motor vehicle camper” is one item. See Karder Mach. Co. v. Liberty Mut. Ins. Co., 9th Dist. Summit No. 14486, 1990 WL 177199, *3 (Nov. 7, 1990).

{¶ 18} By utilizing rules of grammar and employing the common meaning of terms, “motor vehicle camper” has a clear definition that does not produce an absurd result. If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase “motor vehicle” and the word “camper.” As written, however, legislative intent is clear from looking at the language used in the ordinance itself.

Chief Justice Roberts was unavailable to add a comma to rewrite the statute as the legislature obviously wanted it to read.

H/T Joe H.


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Jul 3, 2015

Stunning WaPo Report on Immigration – DHS “taken steps to ensure that the majority of the United States’ 11.3 million undocumented immigrants can stay in this country”

Throughout the entire litigation over DAPA, the Administration has insisted over and over and over again that this administration is deporting more Americans than ever, and Texas can’t possibly claim an abdication of authority because DHS is deporting more people than ever. Now, The Washington Post reports that new DHS policies will decrease the number of deportations for aliens that are not “convicted criminals, terrorism threats or those who recently crossed the border,” and instead focus on “integrating” these preferred aliens.

The Obama administration has begun a profound shift in its enforcement of the nation’s immigration laws, aiming to hasten the integration of long-term illegal immigrants into society rather than targeting them for deportation, according to documents and federal officials.

In recent months, the Department of Homeland Security has taken steps to ensure that the majority of the United States’ 11.3 million undocumented immigrants can stay in this country, with agents narrowing enforcement efforts to three groups of illegal migrants: convicted criminals, terrorism threats or those who recently crossed the border.

While public attention has been focused on the court fight over President Obama’s highly publicized executive action on immigration, DHS has with little fanfare been training thousands of immigration agents nationwide to carry out new policies on everyday enforcement.

While this policy lacks the hallmark of DAPA and DACA–providing work authorization–it is a much wider ranging abdication of enforcement of the immigration laws. Only aliens who fit into the class of dangerous aliens are not presumptively deportable.

But the shift in DHS’s enforcement priorities, which are separate from the DAPA program and have not been challenged in court, could prove even more far-reaching.

The new policies direct agents to focus on the three priority groups and leave virtually everyone else alone. Demographic data shows that the typical undocumented immigrant has lived in the United States for a decade or more and has established strong community ties.

Although the new measures do not grant illegal immigrants a path to citizenship, their day-to-day lives could be changed in countless ways. Now, for instance, undocumented migrants say they are so afraid to interact with police, for fear of being deported, that they won’t report crimes and often limit their driving to avoid possible traffic stops. The new policies, if carried out on the ground, could dispel such fears, advocates for immigrants say.

This is remarkable. It goes far beyond the argument that DHS lacks the resources to deport everyone here illegally. But now, they are moving the goal posts even further, so that removal isn’t even a priority at all!

In describing the initiatives, Homeland Security Secretary Jeh Johnson has echoed the language often used by advocates of comprehensive immigration reform, which remains stalled on Capitol Hill.

“We are making it clear that we should not expend our limited resources on deporting those who have been here for years, have committed no serious crimes, and have, in effect, become integrated members of our society,” Johnson said in a recent speech in Houston. He added, “These people are here, they live among us, and they are not going away.”

In other words, even if we had the resources, we wouldn’t deport them. This is a very, very different argument than the government has made in the past.

Since the new policies took effect in January, Johnson’s instructions have been conveyed to agents throughout the department. “We decided we’re going to draw a clear line between individuals who now have significant equities in the country versus those who are recent entrants,” said one department official, who spoke on the condition of anonymity to describe internal deliberations.

“If people are not an enforcement priority,” the official said, “. . . bottom line, the secretary has said don’t go after them.”

An unnamed administration official has said, very clearly, that DHS will not pursue certain aliens. This is an even more unequivocal abdication than DAPA, which clung to the pretense that DAPA status could be revoke–even though there was a roughly 99% renewal rate.

As a result, deportations are plummeting:

Deportations, for example, are dropping. The Obama administration is on pace to remove 229,000 people from the country this year, a 27 percent fall from last year and nearly 50 percent less than the all-time high in 2012.

Fewer people are also in the pipeline for deportation. The number of occupied beds at immigration detention facilities, which house people arrested for immigration violations, has dropped nearly 20 percent this year.

And on Johnson’s orders, officials are reviewing the entire immigrant detainee population — and each of the 400,000 cases in the nation’s clogged immigration courts — to weed out those who don’t meet the new priorities. About 3,000 people have been released from custody or had their immigration cases dropped, DHS officials said.

There is little pretense for executive discretion anymore when a class of 11 million is systematically exempted from the immigration laws.

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Jul 3, 2015

#SCOTUS Book Royalties

The Justices recently released their financial disclosures. Last year Justice Breyer made $60,000 and Justice Scalia made $30,000 on book royalties.

How did the Justices with books make out with royalties?

  • Justice Scalia made $33,798 from West Services.
  • Justice Breyer made $7,214 from Random House and $126 from Kopf.
  • Like in 2013, Justice Sotomayor received “no ‘noninvestment income’ in 2014″ from her book. But she wrote that the “Knopf Double Day Group, publisher of my memoir “My Beloved World,” disbursed $25,990.00 during 2014 to promote the sale of the memoir.” In 2012, she disclosed a $1,000,000 advance and a separate $925,000 advance. As I speculated last year, she is still paying off the advance, and has not earned any royalties beyond the $2,000,000 paid up front.
  • Justice Thomas did not list any royalties for “My Grandfather’s Son.”

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Jul 2, 2015

Supplemental Briefing in Texas v. U.S. on standing post Arizona Legislature

After reading the Court’s decision in the Arizona Legislature case (I still haven’t made up my mind on the merits, but I’m inclined to agree with the Chief’s dissent), I noted that Justice Ginsburg’s standing analysis was very good news for the House of Representative’s challenge to Obamacare, and Texas’s challenge to executive action on immigration. On cue, Jonathan Turley, representing the House, filed notices of supplemental authority discussing the Arizona case. In response to a call for briefing from the 5th Circuit, the Texas SG has also filed a supplemental notice.

Perhaps most significantly, the Court distinguished Mass. v. Mellon, which the government has relied on extensively.

Arizona State Legislature bolstered Plaintiffs’ independent parens patriae standing theory by distinguishing Massachusetts v. Mellon, 262 U.S. 447 (1923), a case Defendants have cited in attacking that theory. See Appellants’ (DOJ) Br. 32; DOJ Reply Br. 11.

The Supreme Court emphasized that States’ standing to sue the federal government as parens patriae depends on “the kind of claim that the state advances.” Ariz. State Leg., 2015 WL 2473452, at *10 n.10. In illustrating this point, the Supreme Court approvingly cited its decision finding standing in Massachusetts v. EPA, 549 U.S. 497 (2007). And, as Plaintiffs have explained, Massachusetts distinguishes between States suing to enforce federal law and suing to block federal law. See id. at 520 n.17 (explaining that a State can sue the federal government under a parens patriae theory when it is asserting “rights under federal law” rather than seeking to “protect her citizens from the operation of federal statutes”).

In Mellon, the Court found no standing where Massachusetts sued the federal government to block the operation of federal statutes. Ariz. State Leg., 2015 WL 2473452, at *10 n.10; Massachusetts v. EPA, 549 U.S. at 520 n.17. Here, in contrast, Plaintiffs seek to enforce federal statutes. In other words, this lawsuit is analogous to Massachusetts’s later suit against the EPA, where the Supreme Court found standing.

And reaffirms Mass. v. EPA’s discussion of “special solicitude,” in the context of the “institutional injury.”

Arizona State Legislature confirms that States are “entitled to special solicitude in [a court’s] standing analysis.” Ariz. State Leg., 2015 WL 2473452, at *10 n.10 (quoting Massachusetts, 549 U.S. at 520). In Arizona State Legislature, standing was premised on the fact that the Arizona Legislature’s redistricting powers were “strip[ped]” and “nullif[ied].” 2015 WL 2473452, at *8, *10. The Court recognized that was an “institutional injury.” Id. at *10.

Similarly, the States suffer institutional injuries when federal agencies fail to abide by congressional enactments that preempt state prerogatives. “When a State enters the Union, it surrenders certain sovereign prerogatives” that become “lodged in the Federal Government.” Massachusetts, 549 U.S. at 519. A State’s agreement to have its authority preempted on such sovereign matters—for instance, determining the lawful presence of individuals within its borders—is premised on the understanding that Congress’s enactments serve to “protect” the States. Id.

When the Executive Branch “has abdicated its responsibility under [federal statutes],” Massachusetts, 549 U.S. at 505, it negates the basis on which the States agreed to allow federal preemption of their sovereign prerogatives. See ROA.4432-43 (district court’s opinion); Amicus Br. of Prof. Ernest A. Young 15-20. For this reason, States are accorded “special solicitude” in demonstrating their standing to sue the federal Executive. Ariz. State Leg., 2015 WL 2473452, at *10 n.10 (quoting Massachusetts, 549 U.S. at 520).

Texas also distinguishes Justice Scalia’s remarks as inapplicable here:

Justice Scalia’s dissent in Arizona State Legislature suggested that plaintiffs should not have standing when they ask courts to “resolve direct disputes between two political branches of the same government.” 2015 WL 2473452, at *40 (emphasis added). Of course, the majority of the Court did not adopt this view. Regardless, Justice Scalia’s reasoning is inapplicable here. Plaintiffs are not suing other branches within their own governments; they are suing another government. Such lawsuits pose no difficulty, as exemplified by the scores of original cases in the Supreme Court involving one State suing another. See, e.g., States Br. 32 (citing Wyoming v. Oklahoma, 502 U.S. 437, 447-48 (1992), and Maryland v. Louisiana, 451 U.S. 725, 736-37 (1981)).

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Jul 2, 2015

POTUS Takes “Victory Lap” after King v. Burwell

The Hill Reports:

President Obama is taking a victory lap on his landmark healthcare legislation less than a week after the Supreme Court delivered a key decision in favor of the administration.

“I’m feeling pretty good about how healthcare’s going,” Obama said to applause from an audience in Nashville, Tenn.

In his first public remarks devoted to healthcare since the court’s 6-3 decision, Obama vowed to make the law “even better.”

“I think it’s important to remember that everybody who has health insurance benefited and continues to benefit from this law even though a lot of folks don’t know it,” Obama said during the town hall meeting.

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Jul 2, 2015

Robot Grabs, Crushes Man. “Prosecutors Were Considering Whether to Bring Charges, and if so, Against Whom.”

In a bizarre story from Germany, a robot at a VW plan, that was programmed to grab and manipulate auto parts, grabbed a human and crushed him.

A robot has killed a contractor at one of Volkswagen’s production plants inGermany, the automaker said Wednesday.

The man died Monday at the plant in Baunatal, about 100 kilometers (62 miles) north of Frankfurt, VW spokesman Heiko Hillwig said.

The 22-year-old was part of a team that was setting up the stationary robot when it grabbed and crushed him against a metal plate, Hillwig said.

He said initial conclusions indicate that human error was to blame, rather than a problem with the robot, which can be programmed to perform various tasks in the assembly process. He said it normally operates within a confined area at the plant, grabbing auto parts and manipulating them.

Obviously this robot didn’t get past the first rule. In a reference to the questions of liability for torts committed by robots, the article closes:

German news agency dpa reported that prosecutors were considering whether to bring charges, and if so, against whom.

Against whom, or what?

This reminds me of an Onion story last year about Ohio replacing the lethal injection with the “humane new head-ripping-off-machine” that will automatically rip off the head of anyone that sits in the chair.

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