Mar 20, 2015

Constitutional Places: The Nebraska Capitol in Marsh v. Chambers

During my trip to Lincoln, Nebraska to speak at the University of Nebraska, I paid a visit to the (unicameral) legislature of the Cornhusker State. This was the site of Marsh v. Chambers, where a chaplain led an invocation prior to sessions. The Court upheld this chaplaincy, and later reaffirmed a similar situation in Town of Greece v. Galloway. Interestingly, the Capitol has two chambers, even though the Legislature is Unicameral. In the other chamber, the Governor was signing proclamations (it is Registered Dietician Awareness Month).

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Mar 19, 2015

Video: “Hobby Lobby, Obamacare, and Religious Liberty” At University of Nebraska Federalist Society Chapter

On Wednesday, March 18, the University of Nebraska Federalist Society Chapter hosted me for a discussion of Hobby Lobby, Obamacare, and Religious Liberty. This chapter earned their Feddie for “Most Improved Chapter.” They have held an event almost every week, and their leadership is top notch. Professor Richard Duncan kindly provided comments on my talk.

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Mar 19, 2015

Video: “What Happens if Data is Speech?” At Northwestern Federalist Society Chapter

On Tuesday, March 17, the Northwestern Federalist Society chapter hosted me for a discussion on “What Happens if Data is Speech?”

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Mar 19, 2015

Audio: “ISIS, Immigration, and Obamacare” at University of Michigan Law School Federalist Society Chapter

On Monday, March 16, the University of Michigan Federalist Society Chapter hosted me for a discussion on executive power following Noel Canning, with a focus on ISIS, Immigration, and Obamacare.

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Mar 19, 2015

New in National Review: “The President Cannot Bypass the Courts”

National Review published my response to Will Baude’s now-famous editorial, asserting that the Obama Administration can sidestep an adverse ruling in King v. Burwell by claiming the Court only has jurisdiction to resolve the claims of the four Virginians who brought the challenge. While I think Will may be technically correct, the implications of this theory are frightening. And what makes it so frightening, is that the Obama Justice Department has made this exact argument in high profile cases involving Obamacare and litigation–that federal courts only have the power of judicial review over the parties before them, in their district.

In offering this “Get Out of Jail Free” card to the Obama administration, Baude notes that “the Constitution supplies a contingency plan, even if the administration doesn’t know it yet.” Alas, the Obama Justice Department is well aware of this stratagem to bypass the federal courts — it has thrice plotted this procedural putsch. In three high-profile cases, two involving Obamacare and one involving immigration, the Justice Department has openly challenged the power of federal courts to issue nationwide injunctions to halt unlawful executive actions. These desperate efforts to interfere with the courts in order to salvage unprecedented assertions of power have flouted the rule of law.

In three high-profile cases, two involving Obamacare and one involving immigration, the Justice Department has openly challenged the power of federal courts to issue nationwide injunctions to halt unlawful executive actions. These desperate efforts to interfere with the courts in order to salvage unprecedented assertions of power have flouted the rule of law.

First, the government told Judge Vinson that Obamacare was too big to fail, and he could not enjoin its implementation outside the Sunshine State.

The Obama administration doubted that a single federal judge could throw a wrench into the lurching Leviathan. In other words, Obamacare was too big to fail. Judge Vinson was none too pleased with this request, which he saw as a pointless delay. He wrote that, since his opinion was issued, the government had “continued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.” Seemingly insulted, Vinson said that he had not expected that the government “would effectively ignore the order.” Ultimately, he put his ruling on hold, but he reaffirmed that his equitable power of crafting an injunction was not limited to the Sunshine State.

Second, in King’s sister case, Halbig, the government actually asserted that non-parties had a due process right to be heard before their subsidies were taken away, so it would actually be unconstitutional for the court to invalidate the rule beyond the named plaintiffs!

Second, in March of 2014, the administration repeated its claim that a single federal court could not stop Obamacare. The week before oral arguments were to be held in Halbig v. Burwell in the D.C. Circuit Court of Appeals, the Justice Department submitted a letter informing the judges that they were constitutionally prohibited from denying subsidies to millions of Americans. In short, the government argued that people who were not parties to the suit had a due-process right to be heard before their subsidies were extinguished — as if Obamacare were some sort of constitutionally protected property interest! The plaintiffs shot back, incredulous that the government had an “apparent intention to lawlessly flout this Court’s binding order.” In August, the D.C. Circuit ruled for the plaintiffs, and sent the case back to the lower court with instructions to “vacate the IRS Rule” in its entirety — not merely with respect to the named plaintiffs. Again, the Justice Department had questioned the power of a federal court to put the kibosh on an illegal federal action, and the judges emphatically rejected this executive hubris.

Third, and most recently, the DOJ has told Judge Hanen, that he could only enjoin DAPA in Texas, or alternatively only in the states that were parties to the suit. This relief would effectively be worthless as immigrants can easily move after receiving DAPA.

Third, last month, a federal judge in Brownsville, Texas, found that President Obama’s most recent executive action on immigration (Deferred Action for Parental Accountability) was unlawful. The suit, brought by Texas on behalf of 26 states, sought to halt the implementation of DAPA in its entirety. Judge Andrew Hanen agreed, and issued a nationwide injunction. True to form, the Justice Department asked Judge Hanen to reconsider his ruling and limit it to Texas alone, or, at most, to the 26 states that were parties to the lawsuit. The Justice Department argued that “Nationwide injunctive relief is particularly inappropriate in the context of government programs.” In its brief to the Fifth Circuit Court of Appeals, the DOJ called Judge Hanen’s order “drastically overboard” and “manifestly excessive” as it “enjoined DHS from implementing the Guidance nationwide, barring implementation in States that do not oppose it and in States that support it.” While Judge Hanen has not yet ruled on this motion, it should be denied. If DAPA is unlawful, it makes no sense to allow the government to grant benefits in 24 states. If an immigrant moves from California to Texas after being granted benefits under DAPA, the injuries suffered by Texas cannot be avoided.

Contrary to Will’s hypothetical, we are already living in this age of lawlessness and disrespect for the authority of the courts to enjoin unlawful executive actions that expand the power of the state. And thankfully, these arguments have been soundly rejected by the courts:

In these three significant cases, the government’s strategy has become apparent. In the first case, the Justice Department argued that Obamacare was too big to stop, and that a single federal court in Florida could not put it on hold. In the second case, it openly expressed its desire to flout the court’s ruling, on the grounds that a single federal court could issue relief only to the parties before it. In the third case, it claimed that a single federal judge, having found that the secretary of homeland security was acting unlawfully, was powerless to stop him outside his own state — or at least outside the states that were suing. The response has been emphatic: Federal courts, vested with the power of judicial review, can craft injunctive relief to ensure that the executive branch adheres to the rule of law.

But why stop with the Supreme Court or DOJ? Why can’t the States make these arguments in the inferior courts (Hint: CJ Moore already has):

While the Justice Department has, to date at least, limited these arguments to the lower federal courts, there is no logical stopping point. As Baude suggests, why not the Supreme Court? And why can’t the states make the same arguments? Imagine if, after Roe v. Wade, Texas had argued that the right to abortion applied only to Norma McCorvey (better known as Jane Roe), and other states continued to enforce their abortion laws. Or if Alabama finds itself unaffected by the Supreme Court’s upcoming same-sex marriage decision, which involves only bans in Michigan, Ohio, Kentucky, and Tennessee. These cases are not class actions, which purport to bind non-parties. They sought relief only for specific plaintiffs in these states against what they claimed were unconstitutional laws. If the Justice Department’s reasoning in the lower courts is taken seriously — and if Baude is correct — then the Supreme Court should be treated no differently. The nine justices, Baude argues, have the “formal power” to “order a remedy only for the” parties before it, not the countless other couples awaiting their nuptials.

This is a scary argument that DOJ should stop making, even if it is technically correct:

The implications of this argument are frightening. The executive branches of the states and the federal government could concoct an infinite number of technicalities to explain why a Supreme Court decision is not binding on them. This breach of the separation of powers would trigger a dangerous race to the bottom, where one state after another would find ways to ignore the jurisdiction of the federal courts. Even if legally correct, this practice should be emphatically rejected, and the Justice Department should cease making this argument. Openly and brazenly flouting the judiciary is a dangerous precedent that should be halted nationwide.

 

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Mar 18, 2015

Floyd Abrams: “The First Amendment Is About Liberty.”

One of the themes I’ve developed over the past few years is a shifting trend in progressive and conservative thought on the First Amendment, and individual liberty more generally. Three important examples illustrate this divide. First, the speech rights of corporations who engage in advocacy once thought the role of individuals. Second, the religious liberty of corporations that exercise faith, once thought only the dogma of believers. Third, the freedom of association of groups, who use their assembly to thwart, rather than advance perceived­ progressive goals. I will be presenting a paper on these issues, titled “Collective Liberty” at the Yale Law School Freedom of Expression Scholars Conference in May (You can download the abstract here and watch a video of my talk here).

Fittingly, the conference is named after none other than Floyd Abrams, who has tirelessly defended the First Amendment for decades. In recent speeches and writings, Abrams has called attention to this troubling shift of views on free speech. Perhaps his most poignant words were delivered in a lecture at Temple Law School, concerning the 2015 “workplan” of the ACLU, which did not list Free Speech among its priorities. Ron Collins graciously offers the transcript here. I will offer some highlights in this post, but I encourage you to read all of it.

Abrams calls attention to the post of Howard Wasserman, who citing an ACLU response, noted that the omission of free speech was a reflection of the fact that “We won. There are no ‘major civil liberties battles’ to be fought or won with respect to the freedom of speech.” (Wasserman comments here).

Abrams replies that the biggest threat to free speech in America is the college campus.

Now, however, pressures on freedom of expression and all too often the actual suppression of free speech comes not from outside the academy but from within it. And much of it seems to come from a minority of students, who strenuously — and, I think it fair to say, contemptuously — disapprove of the views of speakers whose view of the world is different than theirs and who seek to prevent those views from being heard. The amount of students who will not tolerate the expression of views with which they differ is less important than the sad reality that repetitive acts of speech suppression within and by our academic institutions persist and seem to grow in amount. And that is shameful.

Abrams recounts how many speakers (all conservatives) have been heckled, stifled, and even disinvited from speaking at college campuses, including those speaking on “topics as abortion, gay rights, and the ‘war on terror.'” Abrams calls this a “extraordinary perilous moment.”

This sort of thinking makes this an extraordinary perilous moment with respect to free speech on campuses. It sometimes seems as if too many students, even if they are no more than a vocal minority, appear to want to see and hear only views they already hold. Worse still, they want to prevent others from hearing views with which they differ. On one level, this is all perfectly understandable. Justice Oliver Wendell Holmes, to whom I referred earlier, long ago observed in one of his most famous opinions that “[i]f you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.” But natural as that response is, as Holmes later made clear, it is contrary to the core of the First Amendment that “free trade in ideas” be protected. Yet to avoid what the Oxford censors characterized as “unnecessary distress,” we have seen time and again on campuses in our country speech stifled, speech condemned, and speech punished.

Abrams comments on a disturbing event where students banned the flying of national flags at the University of California:

I was struck, in that respect, to read of the dispute on the U.C. Irvine campus earlier this month when the Associated Students of the University of California banned national flags from the lobby and offices of student government on the ground that “[t]he American flag has been flown in instances of colonialism and imperialism” and that they “not only serve as symbols of patriotism or weapons for nationalism, but also construct cultural mythologies and narratives that in turn charge nationalistic sentiments.” “Freedom of speech,” in certain spaces, the statement continued, can be interpreted as “hate speech.” The ban only lasted a few days before it was reversed, but what remains with me is not so much the degree of estrangement of the students involved from their country but that the students that supported it weren’t content with seeking to persuade others of their views but sought to impose their own by banning speech with they disagreed. It reminded me of the people who sought to criminalize the burning of the American flag. The First Amendment side of this issue is straightforward. Don’t ban the flag and don’t jail anyone who chooses to burn his or her own flag. That’s the way people who are devoted to freedom behave.

Abrams next turns to what Collins labels “the ideological left’s drift away from the First Amendment”:

At the same time that a battle rages on campus as to what speech is to be permitted, a similar one rages in academia and on the Supreme Court as to what the First Amendment is all about. And in that conflict, as well as that relating to free speech on campus, it is the ideological Left that seems increasingly less supportive of the First Amendment – or, to put it more fairly, to more speech or speech-like activity being protected by the First Amendment.

First, Abrams defends Citizens United, which has become something of a liberal bogeyman. As I note over and over and over again, the New York Times is a for-profit corporation. The notion that it loses its free speech because it is a corporation is asinine. And for those of who you rely on the Free Press clause, turn to the ACLU or Planned Parenthood or countless other corporations who have brought constitutional challenges. Abrams lists many of the corporations he has defended:

But I would like to revisit one threshold aspect of the case that, to my surprise, still seems controversial even though I find it uncontroversial. It’s whether corporations should receive First Amendment protection at all. I have a special interest in that topic since a good part of my legal work has involved representing corporations in First Amendment cases.

So let me personalize this is a bit. It is true that when I think of clients that I or my Firm have represented in First Amendment cases, I think immediately of some individuals – Judith Miller for one, and more recently, New York Times journalist James Risen, who my Firm represented on a pro bonobasis.

But I also think of corporations. Not just enormous media corporations but ones like Barnes & Noble, that I represented some years ago with respect to a subpoena issued by the Office of Special Prosecutor Kenneth Starr in an effort to learn what book Monica Lewinsky had purchased as a gift for President Clinton. And of the Brooklyn Museum, which then New York City Mayor Rudolph Giuliani fought to close down because he disapproved of some of its art. And of a motion picture company that sought advice from us as to whether a scene in a much honored film it had made which contained a scene, filmed abroad,  showing the 17 year old star of the film sexually entangled with an older female star could be said to have violated American child pornography laws. And of a number of liberal arts colleges around the country that weighed in in the Supreme Court, in briefs we wrote for them, on the First Amendment impact on educational institutions if affirmative action was ruled unconstitutional. And of a tobacco company I represented in a challenge to the Food and Drug Administration seeking to require them to place on 50% of each of their packs grotesque pictures of dead or dying people who had smoked. And I think of the fact that until last month, when a case I had been actively involved in settled, I devoted a great deal of my time representing a credit rating agency and arguing that when the Department of Justice commenced a civil action against it and only it  arising out of ratings all but identical with those of other rating agencies and my client was the only one that had downgraded the debt of the United States, that the Government had violated the First Amendment because it is not permitted under the First Amendment to retaliate against its critics by using the law in a selective fashion.

You may agree or disagree with the positions we took or the clients for whom we took them. But one thing is common to all of the examples I have just cited to you. No one in any of these matters — not any opponent, not any judge, no one — said anything to the effect that since our client was a corporation that it had no First Amendment rights and should not be heard to say that those rights had been violated. I do not exaggerate when I say that if anyone had said that in court, he or she would have been laughed out of it.

Abrams cites Justice Stevens, Elizabeth Warren, and Burt Neuborne who have all repeated the trope that corporations have no soles, so they cannot have constitutional rights. Rubbish!

The opinion for the Court, written by Justice Anthony Kennedy, cited 25 cases, including ones involving for-profit non-media corporations, in which First Amendment protection had been afforded to corporations. Even Justice John Paul Stevens’ dissenting opinion said that “[w]e have long since held that corporations are covered by the First Amendment.” Yet listen to a different part of Justice Stevens’ opinion in which he states that “corporations have no consciences, no beliefs, no feelings, no thoughts, no desires” – as if that wiped out all those First Amendment cases.  Or to Senator Elizabeth Warren, instructing us that “corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die.” All true and yet all unresponsive to why the First Amendment, as it has so often been held to do, should not be held to protect the speech of corporations as well as “real” people. Or of New York University Law Professor Burt Neuborne writing that unlike corporations, human beings “die, do not enjoy economic advantages like limited liability, and, most important, have a conscience that sometimes transcends crude economic self-interest.” These differences, Professor Neuborne argued, “raise a threshold question . . . about whether corporations are even in the First Amendment ballpark.”

Next, Abrams turns to Justice Breyer’s troubling opinion in McCutcheon v. FEC, where he speaks of a “collective” First Amendment right:

In Justice Stephen Breyer’s dissenting opinion from the ruling of the Court, he offered the following view of the First Amendment: “[T]he First Amendment advances not only the individual’s right to engage in political speech, but also the public interest in preserving a democratic order in which collective speech matters.” The First Amendment, he maintains, must be understood as promoting a government where the laws reflect “the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

That view is consistent with the views previously voiced by Justice Breyer in his book Active Liberty: Interpreting Our Democratic Constitution (2005). In that book he argued that the primary purpose of the First Amendment is one that “goes beyond” protecting the individual from government restriction of information “about matters that the Constitution commits to individual, not collective, decision making” (emphasis added). That purpose, Justice Breyer argued, was “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”

Abrams replies that the Breyer gets it entirely backwards–First Amendment exists to protect individuals from the government, not the collective.

On one level, it is difficult to disagree entirely with Justice Breyer’s views since it is undeniable that by restricting the power of the government to control, let alone limit, speech, the First Amendment surely assists in protecting “democratic order.” But the core First Amendment interest is that of protecting freedom of expression from the government. Relegating that to a subsidiary position behind permitting the government, in the name of advancing democracy, to limit the amount of speech about who to vote for, risks much that the First Amendment was adopted to protect. As for Justice Breyer’s disturbing reference to “collective speech,” my view was put far better than I could by Chief Justice John Roberts’ observation that any such notion is contrary to “the whole point of the First Amendment.”

Alas, Breyer does not stand alone. His thought has permeated modern-day liberal thought in a way that was unimaginable decades ago. Abrams cites an essay by Lincoln Caplan, who writes that “However sacred the idea of free speech remains for us today, we should recognize that its most fervent champions are not standing up for mistrusted outsiders . . . or for the dispossessed and powerless.”

Abrams replies that while this may be true as a factual matter, it is entirely irrelevant to the constitutional inquiry:

There is truth in the proposition that a number of recent First Amendment victories in recent years have been on behalf of the “haves” – some of them corporations, some individuals. But that is no basis for concluding that the decisions were wrongly analyzed or wrongly decided.

What Mr. Caplan, who I am sure celebrates First Amendment victories for enormous and enormously powerful press corporations, seems to believe is that if other corporations are protected by the First Amendment, democracy itself will be imperiled. But his notion of democracy and mine are very different. I think the First Amendment protects democracy by protecting speech and that when we suppress speech we imperil democracy. Period.

We must never forget that Citizens United was, at its heart, an attempt to tell a group of conservatives that they could not distribute a move critical of Presidential Candidate Hillary Clinton. Recall Deputy SG Malcolm Stewart told Justice Alito that the government could ban a book! Never, ever forget this history when you study the outcome in Citizens United.

So for me, when Citizens United produced and sought to put a nearly hour-long documentary-style denunciation of Hillary Clinton on pay-for-view when she was (or seemed to be) the leading Democratic candidate for President, it was obvious that it should be protected by the First Amendment. And to him and four members of the Supreme Court, because the money that was spent preparing the documentary came, in part, from corporate grants, that speech can be deemed criminal.

Abrams cuts to the heart of this ideological drift–liberals are conflating the First Amendment with views of social justice (I allude to this in my piece on “Collective Liberty.”)

Let me put it another way. I think Mr. Caplan is conflating what the First Amendment protects with his other societal views as to how to create a more just society. There are lots of paths we might choose to walk to do the latter. Certain types of inequality might be dealt with by greater enforcement of – or significant amendments to – our civil rights laws. Other more economically rooted forms of inequality might be dealt with by raising taxes, enacting stricter antitrust laws, limiting the size of certain corporations – choose your own new world. But what the First Amendment forbids the government from doing is abridging speech.

Abrams closes with a powerful quote from Isaiah Berlin:

The great English philosopher Isaiah Berlin put it this way: “Everything is what it is; liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” To which I add: the First Amendment is about liberty. We may and should take all appropriate steps to effectuate and protect other human values. But let’s not rewrite the First Amendment in doing so.

My First Amendment leads me to favor more speech, not less, on campus. And more speech, not less, in our elections. And more speech, not less, by corporations. And unions. And individuals. To me, then, the issue is not who benefits from reading the First Amendment broadly. It is that we all lose by reading it narrowly.

I wish there were more on the left who would have the audacity to say what should be an uncontroversial truth.

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Mar 17, 2015

The Supreme Court on Nationwide Injunctions

In an earlier post, I responded to Will Baude’s argument that the Supreme Court could limit the relief to the named plaintiff in King v. Burwell. I noted that under the D.C. Circuit’s precedents, when a court sets aside a rule under the APA, the decision applies nationwide. However, as Will noted in an email, the Supreme Court has not adopted this rationale. The closest the Court came to addressing this issue (recently at least) was in Summers v. Earthland Institute. The fourth question presented, which was not addressed, was whether the district court had the power to issue a “nationwide injunction.” Justice Scalia wrote for the 5-4 decision:

We likewise do not reach the question whether, if respondents prevailed, a nationwide injunction would be appropriate.

However, SG Clement argued in the government brief that APA does not even permit nationwide injunctions, totally apart from the question of whether it was appropriate.

If the court finds that a regulation on which the agency relied in rendering that decision is unlawful (and that its application was not harmless er- ror, see National Ass’n of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518, 2530 (2007)), the proper relief is for the court to hold the site-specific decision unlawful (i.e., to “hold unlawful” the reviewable “agency action”) because it rests on the regulation the court found to be invalid, not to go beyond the confines of the case and invalidate the regulation in all of its potential applications to other site-specific decisions. If the court of appeals in this case had correctly identified the Burnt Ridge Project as the only “final agency action” properly subject to challenge, the appropriate relief (even if the case had remained live) could have extended no further than a declaratory judgment that the decision approving that project was unlawful or an injunction prohibiting petitioners from carrying out that project until the For- est Service had satisfied the requirements the court of appeals found to be imposed by the ARA.  … Absent clear statutory text compelling that asymmetrical result—and the text of 5 U.S.C. 706 contains nothing remotely so requiring—the court of appeals plainly erred in approv- ing a nationwide injunction.

The SG also makes something of an equitable argument, explaining that nationwide injunctions impede the ordinary route of review through the Circuits:

Construing the APA to require a nationwide in- junction in cases like this one would also impede the usual process by which disputed legal issues are consid- ered by different circuits before (if necessary) being resolved by this Court . . . The Court has thus recognized that, as a general matter, recurring legal issues involving the federal government should be subject to relitigation in different circuits.

The SG notes that seeking the nationwide injunction forces the government to pursue an appeal in the Supreme Court, rather than allowing the issue to simmer:

The Ninth Circuit’s affir- mance of the nationwide injunction forced the govern- ment either to forgo implementation of 36 C.F.R. 215.4(a) and 215.12(f ) altogether, or to seek this Court’s review of the first court of appeals decision that had ad- dressed the validity of those regulations.17

In a footnote, the SG stresses how this practice allows one Circuit Court to stop other courts nationwide from addressing the issue:

Indeed, if this Court had not granted certiorari to review the Ninth Circuit’s decision in this case, that ruling would have prevented any other court of appeals from considering the question.

Clement makes clear that the government should not be forced into this posture:

Except where Congress has specifically authorized a single lower court to vacate a regulation and resolve such ques- tions on a nationwide basis, this Court’s precedents make clear that the government should not be put to that choice (with the attendant distortion of this Court’s normal ability to defer review, absent relatively unusual factors, until more than one court of appeals has ad- dressed the question). 

I stress the last sentence, because in many respects, the challenges to the individual mandate by 26 states, the challenge to DAPA by 26 states, and the challenge in King v. Burwell, are quite unique. They represent significant challenges to programs with nationwide effects. Allowing the program to go into effect for non-party states, or even the millions not named in the case, creates significant irreparable damages, and renders future equitable relief very difficult. You can’t put the toothpaste back in the tube, as Judge Hanen explained, if DAPA goes into effect in 24 states.

We are witnessing this fact now with King. Recall that Halbig was initially a motion for a preliminary injunction, seeking to enjoin the ACA subsidies before the law went into effect. The district court sat on the case for far too long, rendering that injunction  impossible. As a result, any decision by the Court would result in people who previously received subsidies, on longer being eligible. That is a significant equitable factor that (no doubt) is weighing on the Justice’s.

Will is correct the Court has never adopted the D.C. Circuit’s reasoning on nationwide injunctions. Although, in light of the SG’s own representation, I suspect the Court would find here “relatively unusual factors” concerning the ACA that would counsel in favor of giving relief nationwide.

 

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Mar 17, 2015

Tribe on “Fair Weather Federalism” and King v. Burwell

In his testimony opposing new EPA regulations, Professor Laurence Tribe weighs in (indirectly) on King v. Burwell. He analogizes the coercive nature of the EPA rules with the concerns Justice Kennedy raised during oral arguments. Starting on page 3:

Alternatively, if a State plan does not meet with EPA’s approval, EPA claims the power to impose severe sanctions, including the loss of highway and Clean Air Act funds, as well as the imposition of a centrally planned and administered federal scheme that could harm not simply the State but also its citizens and economy. As noted by Jody Freeman, the former senior counselor for energy policy in the White House, the prospect of a federal plan “would put states at a huge disadvantage if they choose not to file a plan,” because “EPA may not have the best plan for each state.”8  That admission essentially concedes that EPA’s proposal puts a gun to every State’s head.

In this respect, the federalism principles at issue here are strikingly similar to those that arose in the Affordable Care Act case of King v. Burwell, argued in the Supreme Court on March 4. There, Justice Kennedy, among others, noted the “serious constitutional problem” that would result if a federal statute were interpreted as threatening the citizens of a State with significant injury unless the State agreed to follow federal policies.9

Tribe compares the EPA proposal to the ACA, noting the coercive effects of both, and lack of clear notice.

This case involves the same pressures on States to knuckle under to the Federal Government, and the same lack of clear notice.

If Tribe thinks the EPA regulations are coercive, under this reading of NFIB, so too would be the subsidies regime.

The Supreme Court has explained that the “legitimacy of Congress’s exercise of the spending power” “rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”10 “Respecting this limitation is critical to ensuring that Spending Clause legislation does not undermine the status of the States as independent sovereigns in our federal system.”11

EPA’s plan spectacularly fails that test, and the rule of law commands us to be consistent.

In a not-too-veiled jab at some ACA supporters, Tribe faults “fair weather” federalists who only look to federalism to uphold policies they like.

Some people seem to practice “fair weather” federalism, rediscovering States’ rights when it allows them to sustain a federal policy they favor, but abandoning the same principles when it suits them. The Constitution demands more than that.

Unlike many who support the challenge in King v. Burwell, I’ve thought for some time that the subsidies regime is quite coercive, and as I’ve argued, a decision invalidating the IRS rule sets the stage for a subsequent legal challenge to the entire regime. Tribe argues persuasively that the coercion doctrine is alive and well, and may snare Obamacare yet again.

By the way, Tribe’s prose is beautiful. I love the environmental-imagery he creates with sentences like these:

The obscure section of the Clean Air Act that EPA invokes to support its breathtaking exercise of power in fact authorizes only regulating individual plants and, far from giving EPA the green light it claims, actually forbids what it seeks to do.

Burning the Constitution should not become part of our national energy policy.

H/T The eagle-eyed Adam White, who misses nothing.

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Mar 17, 2015

Could the Court Limit Relief to Named Plaintiffs in King v. Burwell?

In his new column in the New York Times, Will Baude explains that the Court can limit any relief afforded in King v. Burwell to the named plaintiffs:

But luckily the Constitution supplies a contingency plan, even if the administration doesn’t know it yet: If the administration loses in King, it can announce that it is complying with the Supreme Court’s judgment — but only with respect to the four plaintiffs who brought the suit.

This announcement would not defy a Supreme Court order, since the court has the formal power to order a remedy only for the four people actually before it. The administration would simply be refusing to extend the Supreme Court’s reasoning to the millions of people who, like the plaintiffs, may be eligible for tax credits but, unlike the plaintiffs, did not sue.

Will seems to suggest that lower courts have held that they have the authority to invalidate regulations beyond the parties at court, but he then promptly brushes aside these concerns:

There are legal wrinkles, of course. Lower courts have sometimes claimed legal authority to invalidate a regulation (which is at issue in this case) even for parties who aren’t before the court. And some employers might be able to bring lawsuits that would call their employees’ subsidies into question. But the administration has already raised legal defenses to those potential problems in other lawsuits and could press those defenses here, too.

With all respect, this is not correct. This exact same issue has already played out in the Halbig litigation as I discussed in this post last March.  The D.C. Circuit has consistently held that striking down a regulation has a “nationwide” effect, and DOJ was not able to marshall any persuasive precedents to the contrary. I will quote from that post at length.

In a 28(J) letter submitted in the Halbig litigation a week before oral argument, the government has taken the position that because the case is not a class action, only the “named plaintiffs” can receive  relief. In other words, even if the court finds that the government acted improperly in awarding subsidies outside the scope of the law, the court lacks jurisdiction to strike down the rule as applied to everyone. Stated simply, under the government’s theory, the court can’t strike down the rule at issue. Too many people benefit from Obamacare. Even if the government is acting illegally, those policies should remain in place. Read the 28(j) for yourself:

We respectfully submit a supplemental authority that bears on plaintiffs’ assertion, made for the first time in reply, that “[i]t does not matter that this ‘is not a class action’” and that the Court could extinguish the tax-credit claims of individuals who live in “states like Texas.” Pl. Reply 26. In Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), and prior decisions, the Supreme Court held that the protections for non-parties are grounded in Due Process. Even when (unlike here) a suit is a class action, “before an absent class member’s right of action [is] extinguishable due process require[s] that the member ‘receive notice plus an opportunity to be heard and participate in the litigation’” and “‘an opportunity to remove himself from the class.’” Id. at 848 (quoting Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985)). Moreover, there is a “constitutional requirement” that a “‘named plaintiff at all times adequately represent the interests of the absent class members.’” Id. at 848 n.24 (quoting Shutts, 472 U.S. at 812). Plaintiffs did not seek to represent a class, and their suit could not satisfy these constitutional requirements. For millions of people across the country, premium tax credits are not burdens to be avoided but federal benefits that they need to afford health insurance.

Counsel for Halbig shot back with a motion to strike, rejecting this surreal approach to standing, raised only for the first time only one week before oral arguments! A ruling that a regulation is invalid must apply “nationwide” for “plaintiffs and non-parties alike.”

This Court plainly can and should invalidate regulations that affect non- parties, without implicating Due Process concerns. The APA directs this Court to “set aside” unlawful agency action. 5 U.S.C. § 706(2)(A). See also Comcast Corp. v. FCC, 579 F.3d 1, 10 (D.C. Cir. 2009) (Randolph, J., concurring). And this Court has made clear that when it invalidates a regulation under the APA, such a ruling has “nationwide” effect, for “plaintiffs and non-parties alike.” Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408-10 (D.C. Cir. 1998); see also Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”).

Further, Halbig was very, very skeptical that the government only just now discovered this “stale” precedent from 1999. They argue, outright, that the government is prepared to ignore the ruling, if the court were to find that the IRS rule is invalid.

Since it is inconceivable that the Government submitted this stale, irrelevant “supplemental” authority to shore up its argument about the justiciability of the employer plaintiffs’ claims (particularly given plaintiff Klemencic’s clear standing), the Government appears to be laying the groundwork to openly flout any decision by this Court invalidating the IRS Rule. Its view, apparently, is that even if this Court vacates the IRS Rule as contrary to the ACA, the Government may nonetheless freely continue to subsidize coverage for the “millions of people across the country” not parties to this litigation. (Notice at 1.) Indeed, because the Government contends that the Due Process Clause would be violated if non-parties were deprived of subsidies, it may believe that it is constitutionally required to continue to offer subsidies in the face of this Court’s invalidation of the IRS Rule.

Consequently, it is incumbent on the Government to now inform the Court and Appellants whether it will abide by this Court’s decision or, for the first time in history, continue to pursue an agency policy after this Court has ruled that the policy is unlawful and set it aside as ultra vires. Indeed, unless the Government affirmatively disavows its apparent intention to lawlessly flout this Court’s binding order invalidating the IRS Rule, the ordinary remedy of vacatur will not suffice, and injunctive relief will be required to enjoin the IRS from making available the subsidies ruled unlawful.

You get it? Even if the court finds that the government acted illegally, they will continue to act illegally.  And the government seems to imply (but doesn’t say outright) that it would violate due process (!?) to suspend the subsidies to those receiving it!

Contrary to the Government’s last-minute contention, this standard APA practice obviously does not violate the Due Process Clause. If this Court vacates the IRS Rule as contrary to the ACA’s text, that eliminates the only legal basis for the IRS to distribute U.S. Treasury funds to subsidize those who purchase coverage on federally established Exchanges. Thus, vacating the IRS Rule precludes the Government from committing the ultra vires act of distributing Treasury funds that have not been authorized by Congress. So precluding lawless subsidies to those purchasing coverage on federal Exchanges obviously means those people cannot receive those subsidies, but it does not in any way bind them or deny them Due Process rights. Were it otherwise, the APA’s requirement to set aside regulations would be unconstitutional every time the rule affects non-parties (which is almost always true).

First, if the Government inexplicably believes that it has the authority (or, more absurdly, a constitutional duty) to continue to disburse subsidies for federal Exchanges in the face of this Court’s order vacating the IRS Rule, this means that invalidating the IRS Rule will not disable the Government from making subsidies available to anybody, including even Klemencic. Thus, mere vacatur of the IRS Rule would not remedy Klemencic’s injury, because so long as a subsidy is “allowable” to Klemencic, he is not exempt from the individual mandate penalty. 26 U.S.C. § 5000A(e)(1)(B)(ii). (See App. Br. 9-11.) An injunction clearly forbidding the Government from subsidizing coverage on HHS-established Exchanges would therefore be necessary to remedy Klemencic’s injury.

The due process clause immunizes the government from acting illegally? Is this some sort of Golderg v. Kelley-esque argument? They may want to check Matthews v. Edridge.

In short, this argument is contrary to a lot of precedent, and even the government could only must a last-ditch due process argument about why non-named plaintiffs are exempt. During argument, the D.C. Circuit Judges seemed hostile to this idea, with good reason. It is contrary to their caselaw.

In any event, while the government continued to raise this argument in its petition for rehearing en banc, it (thankfully) did not raise it in its Supreme Court brief, in much the same way the government is not contesting standing. (The D.C. Circuit deferred ruling on it). The government, and the plaintiffs, want the Court to resolve the issue before it. Kicking the can down the road will only delay the inevitable.

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Mar 15, 2015

Upcoming Talks at the University of Michigan, Northwestern, University of Nebraska, and Creighton University

I have four events scheduled this week. On Monday at noon I will be speaking at the University of Michigan on Executive Power after Noel Canning. On Tuesday at noon I will be speaking Northwestern University on “What Happens if Data is Speech?” On Wednesday at noon I will be speaking at the University of Nebraska, Lincoln, on Hobby Lobby and Religious Liberty. I will be speaking on the same topic on Thursday at noon at Creighton University. All events are at the school’s Federalist Society Chapter, and are open to the public.

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Mar 15, 2015

The Economist: “Houston is not pretty, but it thrives”

houston-nozoningMy new hometown of Houston continues to draw interest of how its lack of a zoning code has invigorated economic development. The latest piece is from the Economist sums up the city well: “Houston is not pretty, but it thrives.” I couldn’t agree more. Despite the slowdown from dropping oil prices, Houston’s regulatory vacuum will help the city continue to grow:

Paradoxically, perhaps the city’s biggest strength is its sprawl. Unlike most other big cities in America, Houston has no zoning code, so it is quick to respond to demand for housing and office space. Last year authorities in the Houston metropolitan area, with a population of 6.2m, issued permits to build 64,000 homes. The entire state of California, with a population of 39m, issued just 83,000. Houston’s reliance on the car and air-conditioning is environmentally destructive and unattractive to well-off singletons. But for families on moderate incomes, it is a place to live well cheaply. …

If disaster is avoided, it will be because Houston has reached a critical mass where employers keep moving in because others are already there. Joel Kotkin of Chapman University in California argues that thanks to cars, even over its vast size, Houston creates the same possibilities for people to meet and share ideas that generate wealth in denser cities such as New York. Sprawl may not be pretty—but it seems to work.

All too often, government is seen as the only force that can slow an economic downturn, when it reality transferring wealth to non-producers prolongs and deepens inequality. Houston provides a metric of how less government can allow people of all classes to thrive, even in down times.

Tyler Cowen puts the point well.

If we think about, what are the best cities in the United States, particularly for the poor, it’s places like Houston, which have no zoning and which have very easy regulatory systems in which you can build. You can get a permit to build within a matter of days, compared to New York where you’ve got to go through a dozen different permitting processes and you have to hire specialized people whose only job is really to stand in line to help you get through the process….So, people of modest means can still buy a house in Houston. And they can’t do that in many other places in the United States because of zoning and not-in-my-backyard rules, a kind of secession of the rich, not in terms of gated communities but in terms of adding on rules and restrictions on how large your lot has to be in order to build a house, how many people can live in the house etc. All of these things have made it extremely expensive to buy in any of these cities, which use more top down planning.

 

 

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Mar 12, 2015

Audio: ISIS, Immigration, and Obamacare at Tulane Law School

On 3/11/15, I gave a talk to the Tulane Law School Federalist Society about executive power. Towards the end, I offer some thoughts on the current situation with Iran, as well as why we should not fear government shutdowns.

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Mar 12, 2015

Audio: ISIS, Immigration, and Obamacare at Loyola University New Orleans College of Law

On March 11, 2015, I gave a lecture at the Loyola University, New Orleans College of Law Federalist Society Chapter on executive power. Here is the audio.

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Mar 12, 2015

DOJ Explains Why It Granted 100,000 Expanded DACA Applications

Last week, I noted that Judge Hanen ordered DOJ to appear for a March 19 hearing to explain why it granted over 100,000 Expanded DACA Applications, when it had told the court that the November 24 memorandum would not go into effect, at the earliest, on February 19 (prior to Judge Hanen’s ruling). Today, in a supplemental filing, DOJ announced they would be seeking a stay today (which I covered here), and also offered an explanation for why it did not inform the court about these expanded DACA grants.

First, DOJ argues that the November 24 memorandum indicated that the three-year periods would go into effect immediately.

The November 24, 2014 effective date of the three-year period, including for individuals applying for DACA under the 2012 guidelines, is set forth in the Secretary’s Deferred Action Guidance, which states on page 3 that the change from two- to three-year grants would be “effective November 24, 2014.”

In other words, it is the court’s fault for not noticing this, and accepting the DOJ’s incomplete representation that they weren’t implementing the law till February. Again, here is the relevant colloquy from DAAG Hartnett:

MS. HARTNETT: In that document [Defendants’ January 14 motion for extension of time] we reiterated that no applica- tions for the revised DACA — this is not even DAPA — revised DACA would be accepted until the 18th of Feb- ruary, and that no action would be taken on any of those ap- plications until March the 4th. …

THE COURT: But as far as you know, nothing is going to happen in the next three weeks?

MS. HARTNETT: No, Your Honor.

THE COURT: Okay. On either.

MS. HARTNETT: In terms of accepting applications or granting any up or down applications.

THE COURT: Okay.
MS. HARTNETT: For revised DACA, just to be totally clear.

Wouldn’t it have been appropriate to explain that the three-year grants had already being granted. Why does the “abundance of caution” only arise after the court’s decision? Even her proviso at the end, “for revised DACA” is incomplete, because as DOJ notes, the 2012 policy was for 2 years, and 2014 policy was for 3 years. It was under the expanded DACA that relief was being afforded. I don’t think this argument will fly.

Here, DOJ parses words. They explain that expanded DACA applies to the expanded class of individuals under the 2014 memorandum. Individuals who classified under the 2012 guidance would receive relief, but now at the three year mark.

Defendants also informed the Court that USCIS “does not intend to entertain requests for deferred action under the challenged policy until February 18, 2015, and even after it starts accepting requests, it will not be in a position to make any final decisions on those requests at least until March 4, 2015.” Mot. for Extension at 3 [ECF No. 90] (emphasis in original). These and similar statements reflected that USCIS would not consider or grant DACA to the expanded class of individuals eligible under the challenged 2014 Deferred Action Guidance (hereinafter, “2014 DACA”) before these dates. The claims of irreparable harm in this case pertained to the expansion of deferred action to individuals newly eligible under 2014 DACA. Defendants’ statements thus addressed the effective dates for 2014 DACA – i.e., when a larger group of individuals would be eligible to apply for and receive DACA – not the effective date for the change in duration of deferred action grants pursuant to the unchallenged 2012 DACA, an issue that was not the subject of Defendants’ focus at the time those statements were made.

DOJ makes this fine distinction late in the game. I don’t think this is how Judge Hanen, or Texas, understood the scope of relief.

Defendants filed the March 3 Advisory to ensure that prior filings had not created inadvertent confusion about the three-year grants to 2012 DACA recipients and so that the facts were abundantly clear to the Court, as well as to provide the approximate number of three-year grants issued before the injunction.

The filing also cites the USCIS FAQs explain that all grants under the 2012 DACA would be for three years.

In addition, the “frequently asked questions” (FAQs) on USCIS’s public website regarding the 2012 DACA program stated that grants of deferred action under 2012 DACA would be issued for a term of three years following issuance of the November Guidance. See Ex. B to Neufeld Decl. at 2 (“If USCIS renews its exercise of discretion under [2012] DACA for your case, you will receive deferred action for another three years.”).

Well, if the web site said it… I should note that a federal court has rebuked the Obama administration from changing Obamacare policy in its FAQ. This is not a wise argument.

Remarkably, DOJ suggests that because they are only in year 1 of 3, a court can later revoke the additional year.

Those individuals also are only in the first year of the deferred action period; it will be nearly two years before the third year of the grant period is even implicated.

At the end, we get a partial apology, but the government will appeal:

Defendants assure the Court that they will be ready to address fully the Court’s Order regarding the March 3 Advisory and Plaintiffs’ motion for discovery at the hearing on March 19. Defendants in no way intended to obscure the fact that DHS already was implementing the three- year duration of deferred action for individuals applying under 2012 DACA, pursuant to the Secretary’s Guidance, and submitted the March 3 Advisory to the Court to ensure clarity on that point. Defendants regret any confusion that may have resulted from their focus on the February 18, 2015 and March 4, 2015 dates in their statements to the Court. Nevertheless, because any further delay in reaching a final resolution of their stay request will compromise the significant government interests set forth in Defendants’ stay papers, including Defendants’ efforts to protect national security, public safety, and the integrity of the border, Defendants have concluded that they must now seek emergency relief in the Fifth Circuit to protect those interests.

Stay tuned.

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Mar 12, 2015

Breaking: DOJ To Seek Stay in 5th Circuit Today

In a filing, DOJ announced that today they will seek a stay in the 5th Circuit from Judge Hanen’s ruling.

Defendants file this supplement to their Emergency Expedited Motion to Stay the Court’s February 16, 2015 Order Pending Appeal (“stay motion”) [ECF No. 150], to inform the Court that today they will seek a stay of this Court’s preliminary injunction before the Fifth Circuit in light of the urgent circumstances and critical federal interests at issue, including Defendants’ need to protect national security, public safety, and the integrity of the border. Defendants also wish to assure the Court that they take very seriously the Court’s March 9, 2015 Order and will be prepared to address fully the issues identified therein at the hearing scheduled for March 19, 2015.

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Mar 12, 2015

ConLaw Class 17 – Equal Protection and Desegregation

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

Equal Protection and Desegregation

  • Cumming v. Board of Education (1346-1349).
  • Giles v. Harris (1349-1352).
  • Berea College v. Kentucky (1352-1359).
  • Desegregation Cases (1359-1360).
  • Board v. Board of Education (I) (1360-1363).
  • Bolling v. Sharpe (1363-1364).
  • Brown v. Board of Education (II) (1364-1365).
  • Notes (1365-1370).

Brown v. Board of Education

This is Linda Brown, the third-grader who challenged the Topeka, KS law requiring her to enroll in a segregate school.

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Here is Brown’s family.

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(Linda Brown of Topeka (left), with her parents, Leola and Oliver, and younger sister Terry. ) Here are all of the plaintiffs from the various companion cases to Brown v. Board, and their parents.

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Front row: Vicki Henderson, Donald Henderson, Linda Brown, James Emanuel, Nancy Todd, Katherine Carper Back row: Zelma Henderson, Oliver Brown, Sadie Emanuel, Lucinda Todd, Lena Carper. Here is an other photograph of all of the students.

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This is Monroe Elementary School at issue in Brown v. Topeka Board of Education. Linda Brown, third grade, was forced to enroll in this all-black school. It was 21 blocks from where she lived.

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Here are photographs from inside Monroe Elementary.

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The white-Sumner Elementary School was much closer to where Linda lived.

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The path to the Supreme Court’s decision in Brown was long and arduous, and quite complicated. Here is a memo from Chief Justice Warren, dated May 7, 1954, querying whether it would be appropriate to have the state Attorneys General provide argument on the case as well.

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Here is the oral argument sheet from decision day.scotus-arguments-brownHere is Chief Justice Warren’s draft of the final opinion.warren-copy-brownHere is a memo Justice Felix Frankfurter wrote to Chief Justice Earl Warren on decision day. It reads:

This is a day that will live in glory. It is also a great day in the history of the Court, and not in the least for the course of deliberation which brought about the results. I congratulate you. Felix Frankfurter.”

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This iconic photograph is of George E.C. Hayes, Thurgood Marshall, and James Nabrit congratulating each other afther the Court announced the decision in Brown, on may 17, 1954.  court-photo-marshallHere is the entire NAACP Legal Defense Fund legal team:

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Another iconic photograph of Linda Brown sitting on the Courthouse steps, with a newspaper blaring the headline,”High Court bans Segregation.”

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This newspaper headline, however, belies the greatest limitation of Brown. Desegregation was only ordered with “All deliberate speed.”

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Bolling v. Sharpe This is Spottswood Thomas Bolling, Jr., twelve years old. He was not allowed to attend a new junior high school in Washington, D.C. reserved for for whites.Bolling

Aftermath of Brown

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Rather than desegregate a swimming pool, the city of Jackson, Mississippi filled it with cement.

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In 1957, President Eisenhower mobilized the 101st Airborne to force Governor Orval Faubus from blocking entry to Little Rock Central High School. The “Little Rock 9″ were escorted to school by military protection. As a result of efforts to oppose integration, the Supreme Court held in Cooper v. Aaron that the decisions of the Supreme law of the land, and that the states were required to comply.

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In 1963, Alabama Governor George Wallace stood in the schoolhouse door at the University of Alabama. President Kennedy ordered the General of the Alabama National Guard to confront him.

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Mar 11, 2015

Video: 1st Amendment, 2nd Amendment, and 3D-Printed Guns at University of Arizona

On March 2, 2015, the University of Arizona Federalist Society and American Constitution Society Chapters co-hosted an event that focuses on the 1st Amendment, 2nd Amendment, and 3D-Printed Guns. Joining me on the panel were Professors Jane Bambauer and Hank Shea. Here are video, audio, and photos of the event.

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Mar 11, 2015

My Advice to Incoming Articles Editors From 2009

After submitting an article on Expresso, I had the strangest feeling of deja vu. I received a rejection email from the George Mason Law Review. It was an email I had personally sent out more times than I could count, from an email account I used to check hourly. For a lark, I emailed the editor back and thanked her for her consideration, and explained that I sat in her seat 6 years earlier. She replied, and told me that an essay I wrote, “My Life as an Articles Editors,” is *still* in the Law Review Handbook. I had absolutely no recollection of writing this essay, so she kindly sent me a copy.

Here it is, in its entirety. (I would be well-served to take my own advice for writing!)

Josh Blackman, Articles Editor 2008-2009

My Life as an Articles Editor

The duties of an articles editor are significant, the commitment is perpetual, but the rewards are immeasurable.

Duties:

  • First Review of Article

o   When the Senior AE first assigns you an article, it may or not be in your area of expertise.

o   If it is in your area of expertise, you have an advantage. Read the cover letter, CV, and introduction. By that point, you should get a feel if the idea is novel or hackneyed. If you think it’s an overwritten topic, read on, but don’t spend too much time on it.

o   If it is not in your area of expertise, it’s a little harder. You will need to read the argument much more carefully, and maybe, if you have time, run a brief preemption check. Often you won’t have time for this, but if it seems like a really unique topic, just enter a few keywords into Westlaw Journal and Law Review search.

o   My process for reviewing an article is as follows:

  • Before I do anything, run a word count. The text above the line:text below the line ratio should be about 2:1. Anything shorter than 10,000 words above the line is probably too short. More than 30,000 is really long.
  • Read the introduction. Take note of what the author suggests he’ll discuss. Keep an eye out for BS, and lofty assertions that cannot be supported.
  • Second skim through the fact and background section, just making sure there are adequate number of footnotes.
  • Third, go through the argument section. Read the roadmap paragraph, and skim the Roman numerals. Quickly match this up with what the author wrote in his Introduction. If they don’t match, likely the argument is BS. IF they match, go through the argument in some detail. Check to see if it makes some sense, and whether it addresses any obvious criticisms you can think of

o   Based on these steps you have to decide whether or not you want to publish it. When making the recommendation keep the following factors in mind

  • Citeability- is this something another journal/court/brief will cite. No one ever reads an entire law review cover to cover. It’s a fiction. In reality, some lawyer will go to westlaw, type in a few keywords, and hopefully west brings up your article. The lawyer will find a single proposition/paragraph/section he likes, and cite to it. So even if the article you are reviewing has a weak background section, but a few really good paragraphs of analysis that have never been written before, that weighs heavily for citeability
  • Quality of writing- if it is poorly written or has poor footnotes this creates a lot of work for the AE, and the RE, so consider this. But, in my experiences, I would rather fix up a brilliant piece of scholarship that have an easy editing job on a mediocre piece of scholarship.
  • Timeliness- it has to be timely. If the author writes a fascinating article about an old precedent, its likely irrelevant. Who cares?
  • Second Review of Article

o   For the second round, I am highly deferential. Kind of like a clear and erroneous standard of review. Unless I see something I really don’t like, I will generally agree with the first reviewer. This confidence comes with time as the AE team develops a good symbiotic relationship. But this saves so much time and effort.

  • Working with Fellow Articles Editor

o   Try hard to develop a good working relationship with your fellow AE. You will work so closely with them, that it makes sense to get to know them well enough. You begin to understand what they look for in an article. If you want to sell an article, you can custom tailor your review. For example, if an AE is a stickler for footnotes, and an article might have less than perfect footnotes, make a comment how this can easily be fixed, and show where the author did this well.

  • Making Initial Author Contact

o   At first contact, be overly formal. A phone call may be helpful, but depends if the author is interested.

o   As you develop, if you sense the author is acting more friendly, emulate him. It makes for a more relaxed environment, especially if something goes wrong.

o   If the author screws up (he will), do whatever it takes to fix it, and don’t cast blame on him.

o   If you, or anyone else on law review screws up, take the blame. He only knows who you are, and if you blame, say a RE, it is irrelevant. Man up to it, and do whatever it takes to make it right.

  • First Round Edits

o   This is where you review the article with a fine tooth comb. Go word by word, line by line. Don’t be afraid to make substantial changes. For example, if you want to rearrange paragraphs, move sentences around, add sentences, or even add an entire section that you feel is lacking, do so. But, do it respectfully. Insert comments into the document, and explain, in detail, why you are doing what you are doing. The author may or may not be receptive. Ultimately, it is his article, and he can just reject any changes. But if you don’t make them here, they will be harder to make down the line.

  • Second Round Edits

o   When you receive the article back from the author, go through his changes. Try to see what he accepted/rejected. Ultimately, you will accept all of his changes and send it to the Research Editor.

o   When you get the spaded article back from the RE, go through it one more time, and send it the Author. Make sure you indicate that this is the last chance the author will have to make any substantive changes.

  • Keeping Communication with Author during Process

o   After the author sends the article back, and you forward it to EIC/EE for final review, keep in contact with the author, and let him know what is going on. When it is published, when it goes on the website, when the print copies come out. Always be in contact, as I’m sure he is anxious.

o   After the final issue is shipped, send a thank you note. It will leave a good GMU taste in his mouth, and helps build our reputation.

 

Commitment

  • If you are an AE, and you think you have some free time, odds are you aren’t working hard enough.
  • You should try to review between 5-10 articles a week, every week. Don’t slack off and let articles linger in your review folder, because authors will get offers elsewhere, and not tell us. If you review an article that was already accepted you waste everyone’s time. Just keep reading.
  • When there is an expedite, take care of it right away. Whether or not another journal accepting an article is an indication of the article’s quality, an expedite means you have a good shot at losing the article. If you are the second round reviewer on an expedite, take care of that before anything else you are working on, as you only have a short window.
  • If there is a mistake, and you need to rearrange your schedule, you just have to do it. When you miss deadlines, you push back the entire process, and everyone else suffers. Like Atlas, put the globe on your back, and carry forward. Just shrug.

 

Rewards

  • You will learn so much by taking this position seriously. You learn about cutting edge scholarship in every area of the law. You will learn how to write effectively, and what makes a good law review article. You will learn how to structure a logical argument persuasively. You will learn how to deal with professionals of all types, and how to deal with people in academic settings. You will learn how to work closely with your fellow law review editors, skills which will serve you will in any collaborative enterprise. You will learn a lot about yourself.

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Mar 10, 2015

Talks in New Orleans at Tulane and Loyola

On Wednesday, 3/11 I will be giving talks at Tulane Law School and Loyola Law School in New Orleans on the constitutionality of President Obama’s executive actions. The Tulane event will be at noon, and the Loyola talk will be at 5:00 p.m. I hope to see you there!

 

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Mar 10, 2015

Phoenix Lawyers Chapter: From My Cold, 3D-Printed Hands

On March 2, 2015, the Phoenix Lawyers Federalist Society Chapter hosted me for a very unique event at the University of Advancing Technology (UAT). In a somewhat unconventional, but fun talk, I spoke about the constitutionality of bans on 3D guns to an audience of primarily engineers. Commenting on my talk were Dr. David Bolman, provost of UAT, and FBI Special Agent Martin Hellmer. This was a cool mash-up event, where I preached the liberty gospel to many people who knew very little, if anything, about the 1st or 2nd Amendments. As a special prop, I held a massive 3D-printed (non-functional) gun over my head, in homage to Charlton Heston. Turn to 2:05 for the fun stuff.

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