Dec 11, 2014

Arizona Brief to SCOTUS Cites President’s Statement: “I Just took an action to change the law.”

I previously remarked that the President’s comment that he “just took an action to change the law,” would become one of his most famous candid malapropisms, alongside “If you like your plan, you can keep your plan,” and that Obamacare was “not a tax.” In an emergency appeal to Circuit Justice Kennedy, Arizona cited that statement.

Like Secretary Napolitano’s DACA Program, Secretary Johnson’s expanded deferred action program is contrary to law. Simply put, the Secretary of DHS does not have the authority to unilaterally create, change or violate federal immigration law.3

3 Indeed, the President himself has stated that he “just took an action to change the law.” Eric Bradner, Obama to immigration hecklers: ‘I just took an action to change the law,’ CNN (Nov. 26, 2014),

This isn’t the first time the President has admitted he changed the law. In August, he admitted that he made a “temporary modification” to Obamacare:

One of the main objections that’s the basis of this suit is us making a temporary modification to the health care law that they said needed to be modified.  (Laughter.)  So they criticized a provision; we modify it to make it easier for business to transition; and that’s the basis for their suit.  Now, you could say that, all right, this is a harmless political stunt — except it wastes America’s time.  You guys are all paying for it as taxpayers.  It’s not very productive.  But it’s not going to stop me from doing what I think needs to be done in order to help families all across this country.  (Applause.)

I would add that another recent quotation from the President should be added to the “irreparable harm” inquiry:

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely, politically, that they reverse everything we’ve done.”

He even used the word “damaging.” In other words, once this program begins, it cannot be undone, by another President.


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Dec 11, 2014

Constitutional Faces: Alfred Leo Smith (1919-2014)

al-smithGarrett Epps notes the death of Alfred Leo Smith, the eponymous plaintiff of Employment Division v. Smith.

The Roseburg program hired Smith to help provide culturally relevant treatment, like the sweat lodge, to Native clients. He wasn’t looking for a landmark case; he had a wife and a new baby. He was swept into a constitutional controversy because a non-Native colleague, Galen Black, attended a peyote ceremony and told colleagues at the agency that he thought it would be a means of treating alcoholism and addiction. His bosses fired him on the spot. To the white people who ran the agency, peyote was not a religious exercise—it was an “illegal drug,” and Black was no longer fit to counsel recovering clients.

Then the bosses called Smith in and brusquely warned him that if he went to a ceremony and ingested peyote he would lose his job too. Not long after, Smith was invited to a ceremony. He had been warned, but the tone of disrespect to an Ancient Native faith rankled. He later recalled his immediate response: “You can’t tell me that I can’t go to church!”

Smith was not one to be intimidated. He attended the ceremony, took the sacrament, came back to work, and was promptly fired. Then he applied for unemployment.

The agency opposed his unemployment claim, saying the ceremonial use of peyote was “misconduct.” The state of Oregon, obsessed by the war on drugs, joined in the case (even though it wasn’t clear that Oregon law even prohibited what Smith and Black had done). State courts at every level found their conduct was protected by the First Amendment and ordered the state to pay them their benefits. The state refused to accept this, and took the case to the U.S. Supreme Court not once but twice.

At this point, attorneys for one of the many organized Native American Church groups began to pressure Smith to withdraw his claim. They feared the Court would rule against peyote use in native religious practices and set off a wave of persecution. The outside lawyers negotiated a settlement—but Oregon’s lawyers insisted that Smith and Black admit that they had engaged in “misconduct” and pay back the court-ordered unemployment they had already received.

“In the wee hours of the morning it came to me. Your kids are going to grow up and the case is going to come up one of these days and someone will say, ‘Your dad is Al Smith? Oh, he’s the guy that sold out,’” he remembered later. “I’m not going to lay that on my kids. I’m not going to have my kids feel ashamed. Even if we lose the case, they are going to say, ‘Yeah, my dad stood up for what he thought was right.’”

And you know the rest of the story. Justice Scalia’s opinion, ruling against Smith, begat RFRA, which begat Boerne, which begat RLUIPA, which begat Hobby Lobby.

It should be called Al Smith’s Law.

I was lucky enough to meet Smith in the last years of his life. He was one of the most remarkable men I have ever known. Because he knew I was writing about his case, he arranged for me to attend a ceremony. Since that experience, it’s been clear to me that only the most determinedly ignorant would mention peyote religion and “drug use” in the same breath.

Americans, and the national media in particular, live in a kind of collective fantasy they call “history,” in which things happen because of certain great men. But American history, the real history, is usually made by those outside the circles of privilege and power—people like Dred Scott, Rosa Parks, and Al Smith.

Well said Garrett. May his memory be a blessing.

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Dec 11, 2014

Can a District Court Issue a Nationwide Injunction?

In a previous post, I noted that Texas sought a “nationwide” injunction against the enforcement of DAPA. Joshua Block of the ACLU kindly noted that the government often argues that “comity between circuits prevents nationwide injunctions.” Joshua pointed me to the 2010 government’s emergency motion for stay pending appeal to the 9th Circuit in the Don’t Ask, Don’t tell case (If you can remember that far, that was back when the Obama administration was defending the law). In this case, the district court issued a nationwide injunction, and the government objected. So could the district court in Texas issue a nationwide injunction? This history of the DADT litigation is very instructive to understand what may come next.

The District Court’s found that DADT was unconstitutional, and issued a nationwide injunction against all DOD officials:

(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command;

In its orders (p. 121 of PDF) the district court acknowledged that its order prevents the government from defending the constitutionality of DADT in other district courts.

To the extent that Defendants’ reference to “other courts” is intended to refer to other district courts, Defendants are correct that this injunction will prevent them from defending the constitutionality of the Don’t Ask, Don’t Tell Act. As discussed above, the proper remedy for the relief sought here is complete invalidation of the Don’t Ask, Don’t Tell Act. As such, Defendants are bound by this Court’s ruling. Further, if Defendants’ objection is that they will be unable to defend current or future as- applied challenges, Defendants once again fail to recognize the nature of Plaintiff’s challenge. Plaintiff did not prevail on an as-applied challenge, which would have rendered the Act unconstitutional as applied to it but not affected the constitutionality of the Act overall. Rather, Plaintiff challenged the constitutionality of the Act on its face and requested an order permanently enjoining the Act’s enforcement. As the Court deems this remedy proper, Defendants are unable to defend the Act in as- applied challenges. Likewise, if Defendants’ objection is that they will be unable to defend current or future facial challenges to the Act, the same reasoning applies. To the extent that Defendants’ reference to “other courts” indicates higher courts, Defendants’ recourse, if they wish to defend the Act further, is to appeal this Court’s ruling.

Second, the district court observed that there was no precedent justifying the government’s arguments that a single district court cannot issue a nationwide injunction:

Defendants next argue that the Court should not issue a nationwide injunction because other circuit courts have found the Act constitutional. Defendants cite no case in which a court finding a federal statute unconstitutional on its face has limited its ruling to a particular judicial district.

Third, the district court turns to the government’s interest in preserving “comity” among the courts of appeals:

The Court next turns to Defendants’ argument that comity prevents the Court from issuing a nationwide injunction. As noted above, of the four circuit cases holding the Don’t Ask, Don’t Tell Act constitutional, Cook is the only case decided after Lawrence and accordingly the only one relevant here. … The doctrine of comity is not a rule of law, but rather is grounded in equitable considerations of respect, goodwill,  cooperation, and harmony among courts ….

In AMC Entertainment, the United States brought suit against a national movie theater owner alleging that some of its theaters violated Americans with Disabilities Act (“ADA”) regulations. 232 F. Supp. 2d 1092 (C.D. Cal. 2002) (hereinafter “AMC Entm’t (C.D. Cal.)”). The district court granted the government’s motion for summary judgment and issued a nationwide injunction requiring the defendants to comply with the ADA regulations, and the defendants appealed. Id.

The Ninth Circuit began its analysis by recognizing that district courts have the power to issue nationwide injunctions. AMC Entm’t (9th Cir.), 549 F.3d at 770-71 (“Once a court has obtained personal jurisdiction over a defendant, the court has the power to enforce the terms of the injunction outside the territorial jurisdiction of the court, including issuing a nationwide injunction.” (citing Steele v. Bulova Watch Co., 344 U.S. 280, 289 (1952) (“the District Court in exercising its equity powers may command persons properly before it to cease or perform acts outside its territorial jurisdiction“); United States v. Oregon, 657 F.2d 1009, 1016 n.17 (9th Cir. 1981) (“When a district court has jurisdiction over all parties involved, it may enjoin the commission of acts outside of its district.”))).

Nevertheless, the divided Ninth Circuit panel went on to hold that the district court abused its discretion by issuing a nationwide injunction because “the principles of comity” should have constrained the court from enjoining defendants’ theaters in the Fifth Circuit, which previously had held defendants’ theaters did not violate the ADA. AMC Entm’t (9th Cir.), 549 F.3d at 772-73 (observing that the Fifth Circuit “judicially repudiated” the reasoning adopted by the district court “when considering the same arguments” enforced in the district court’s injunction). The panel held:

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773.

AMC Entertainment is distinguishable from the present case because the former turns on statutory construction, not on fundamental constitutional rights. As Plaintiff argues, “Whatever may be the merits [of comity] in the context of statutory construction — where, for example, our legal system tolerates differing rules in different circuits for issues of the law of bankruptcy, securities, antitrust, tax, and the like — it can hold no sway on issues of constitutional rights.” (Resp. at 7.) The Court agrees that the fundamental constitutional rights at issue here must trump considerations of comity. To hold otherwise would create an untenable result in which Defendants could, pursuant to the Act, discharge servicemembers in Maine, Massachusetts, and New Hampshire, but not elsewhere. The doctrine of comity is rooted in equity; here, the balance of equities decisively tips in favor of upholding the fundamental constitutional rights protected by the First and Fifth Amendments to the United States Constitution.

The government filed an emergency motion for a stay to the 9th Circuit, arguing that it would be disruptive to stay the policy, and opposed the nationwide nature of the injunction (and really worldwide, as DOD personnel are stationed around the globe):

Finally, even though this case is not a class action, the district court erred in awarding what is in essence classwide relief – enjoining application of the statute to any member of the military anywhere in the world – in this case brought by a single organizational plaintiff purporting to advance the interests of two individuals. Injunctive relief is an extraordinary remedy and “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2760 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so they could not seek to enjoin such an order on the ground that it might cause harm to other parties”); Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975) (noting that “neither declaratory nor injunctive relief can directly interfere with enforcement of contested statutes or ordinances except with respect to the particular federal plaintiffs”); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983) (“A federal court . . . may not attempt to determine the rights of parties not before the court.”); Nat’l Ctr. for Immigration Rights v. INS, 743 F.2d 1365, 1371-72 (9th Cir. 1984). The Supreme Court acted in accordance with this principle by staying an indistinguishable militarywide injunction entered by a district court in a facial constitutional challenge to the prior, more restrictive military regulations regarding gays and lesbians. See Dep’t of Defense v. Meinhold, 510 U.S. 939 (1993) (issuing a stay pending appeal of the portion of an injunction that “grant[ed] relief to persons other than [the named plaintiff]”). This Court subsequently reversed the district court’s decision to enter a militarywide injunction because the plaintiff was challenging his own specific discharge, see Meinhold v. Dep’t of Defense, 34 F.3d 1469, 1480 (9th Cir. 1994), and there is no reason for a different result here.

The DADT precedent does not seem directly on point in the immigration context. The district court in Texas would not be “awarding what is in essence class-wide relief” in a “case brought by a single organizational plaintiff purporting to advance the interests of two individuals.” Rather, it would be stopping the implementation of a policy that violates the separation of powers, and will impact the 17 states in the suit, and like all 50.

The brief also addresses the comity issue:

The district court’s worldwide injunction also inappropriately interferes with the development of the law in other circuits. The Supreme Court has made clear that “the Government is not in a position identical to that of a private litigant, both because of the geographical breadth of government litigation and also, most importantly, the nature of the issues the Government litigates.” United States v. Mendoza, 464 U.S. 154, 159 (1984). This Court has held, moreover, that “[p]rinciples of comity” prevent a district court from issuing an injunction that “would cause substantial conflict with the established judicial pronouncements” of a sister circuit. United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).3 If the district court’s injunction is not stayed, it effectively would overrule the decisions of other circuits that have upheld § 654, and preclude consideration of similar issues by other courts. See Va. Society for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 394 (4th Cir. 2001) (relying on Mendoza to limit an injunction in a facial constitutional challenge to a Federal Election Commission regulation).

As a counter to this argument, 17 states united in one single suit. To my knowledge, there are no plans for any other states to bring this type of suit. There will not be any other circuit cases on this. Comity seems like a nonstarter. (Sherriff Joe Arpaio brought a suit in D.D.C. against DAPA, but he does not possess the “special solicitude” of the states). In fact, all of the states bringing a suit in a single district creates the best-case scenario for promoting comity. There will be no circuit splits.

Further one obvious difference–in DADT the ex ante status quo is being disrupted by an injunction; with immigration the ex ante status quo is being maintained with an injunction. Once the policy goes into effect, it will be impossible to roll it back (as the President helpfully reminded us). There can be no claim of disruption–short of messing up planning of DAPA–if it is enjoined before anyone signs up. Now, to the extent that people are approved for it, and receive working papers, the equities shift.

Finally, the government argued that the relief would only be limited to the plaintiffs in this case.

The district court recognized that its injunction would prevent the government “from defending the constitutionality of the” statute, Inj. Order 9 (Attachment D), but contended that these principles were inapplicable because Log Cabin challenged the statute on its face rather than as applied, id. at 4, 9. The district court cited no authority for the proposition that the plaintiff’s legal theory changes the permissible scope of the relief and that proposition is not correct. See, e.g., Va. Society, 263 F.3d at 394 (narrowing nationwide injunction to the plaintiff in facial constitutional challenge); Zepeda, 753 F.2d at 727 (same); Nat’l Ctr. for Immigration Rights, 743 F.2d at 1371-72 (same). A criminal defendant, for example, who successfully claims that the statute he is being prosecuted under is facially unconstitutional gets his conviction reversed – not an order preventing the government from prosecuting anyone under the statute. Contrary to the district court’s apparent view, Inj. Order at 4-5, this is not a case in which granting relief to nonparties is necessary to afford the plaintiff complete relief. See Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (upholding an injunction extending relief to nonparties because the injunction could not be tailored to apply only to the parties). Here – assuming (contrary to our submission) that some form of injunction was permissible – the injunction should have been limited to any individuals that Log Cabin properly represented.

The 9th Circuit granted a stay (O’Scannlain, Trott, W. Fletcher). Here is a summary of the government’s argument:

On October 12, 2010, the district court entered a permanent injunction enjoining the enforcement or application of an Act of Congress known as the “Don’t Ask, Don’t Tell Act,” codified at 10 U.S.C. § 654. Although the government, including the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, tells us that “[t]he Administration does not support § 654 as a matter of policy and strongly believes Congress should repeal it,” the government nevertheless asks us to “stay enforcement of the district court’s order pending resolution on the merits by our Court of the constitutional issues involved.” The government argues that the district court’s plenary order–mandating that its injunction be given immediate worldwide effect–will seriously disrupt ongoing and determined efforts by the Administration to devise an orderly change of policy. The government asserts that successfully achieving this goal will require as a preliminary matter the preparation of orderly policies and regulations to make the transition. We are advised by the government that, in legal terms, a precipitous implementation of the district court’s ruling will result in “immediate harm” and “irreparable injury” to the military. To make this point, the government avers that a successful and orderly change in policy of this sort will not only require new policies, but proper training and the guidance of those affected by the change. The government persuasively adds that “[t]he district court’s injunction does not permit sufficient time for such appropriate training to occur, especially for commanders and servicemen serving in active combat.” We also note that the government takes issue with the district court’s constitutional conclusions.

The court stressed that granting a stay is warranted because “Acts of Congress are presumptively constitutional, creating an equity in favor of the government when balancing the hardships in a request for a stay pending appeal.” That presumption is inapplicable here as there was no act of Congress. What is being challenged is an executive policy.

Further, the 9th Circuit stressed that there was a Circuit Split with the 1st, 2nd, 4th, and 8th Circuits, which had upheld DADT. This counseled in favor of granting a stay.

As we said in United States v. AMC Entertainment, Inc., 549 F.3d 760 (9th Cir. 2008),

Principles of comity require that, once a sister circuit has spoken to an issue, that pronouncement is the law of that geographical area. Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits. To hold otherwise would create tension between circuits and would encourage forum shopping.

Id. at 773. The Appellees’ answer to our sister circuits’ decisions is that they are now “irrelevant,” but only a final merits decision by an appellate court can render this judgment.

Again, this argument is inapplicable, as there is, and will be no circuit split on the issue of DAPA.

Finally, the fact that the disruption will cause “immediate harm and precipitous injury” is convincing.

Accordingly, we conclude that the government’s colorable allegations that the lack of an orderly transition in policy will produce immediate harm and precipitous injury are convincing. We also conclude that the public interest in ensuring orderly change of this magnitude in the military–if that is what is to happen–strongly militates in favor of a stay. Golden Gate Restaurant Ass’n, 512 F.3d 1115. Furthermore, if the administration is successful in persuading Congress to eliminate § 654, this case and controversy will become moot.

For immigration, the equities cut the exact opposite direction. Implementing this policy will cause the “immediate harm and precipitous injury” to the states. Maintaining the ex ante status quo will not.

So in conclusion, this argument does not work to oppose a nationwide stay in the immigration context.

The government made at a similar argument in Halbig, arguing that the relief would only apply to the named plaintiffs, if the rule is invalidated.

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 one weeks 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 acting illegally? I don’t understand. I see this as a basis that there is a constitutional right to Obamacare, and any ruling that would wtihdraw benefits would violate Due Process. Is this some sort of Golderg v. Kelley-esque argument? They may want to check Matthews v. Edridge.

This vaguely reminds me of the episode where Judge Vinson in Florida found that the individual mandate was unconstitutional, and could not be severed from the rest of the Affordable Care Act. The opinion was clear as day. Yet, the government filed this bizarre motion for clarification, asking if he “really” meant it. When I spoke to government lawyers while researching the book, they told me that the government actually could not stop the implementation of the ACA. They couldn’t stop it! (They must have been working on the web site or something). Judge Vinson was convinced the government was prepared to ignore the order–and he was right. They asked for an extension because it wasn’t practical to stop it. The bureaucratic Leviathan of giving away unconstitutional benefits trumps the separation of powers.

Here is the section from Unprecedented for your reading pleasure:

Two weeks after Judge Vinson’s opinion striking down the entire ACA, the United States remained confused.

On February 17, 2011, the government filed what is known as a “motion for clarification,” asking the court to explain whether the United States could continue to take steps to implement Obamacare while the case was appealed, even though Vinson had struck down the entire law.

Some in the Florida Attorney General’s office speculated that this may have been a strategic tactic to delay the litigation. One attorney in that office said that the government’s motion to clarify could be interpreted as “stalling, and dragging their feet.” Another involved in the case concurred, describing the motion as an “exercise in futility” and insisting that the government was trying to “delay things.”

The government wasn’t stalling. A former DOJ attorney explained that Vinson’s order “was framed with such breadth that it would be incredibly disruptive with regard to the portions of the Act that were already in force.” The government would not even have been able to comply with the order. The lawyer speculated that Vinson “did not appreciate the full consequences of his order,” and the motion to clar- ify “was able to call the disruption to the court’s attention.” In any event, Judge Vinson was none too pleased with this request and saw it as a pointless delay.

Vinson ruled that, since his opinion, the government has “contin- ued to move forward and implement the Act.” Somewhat skeptically, Vinson mused, “While I believe that my order was as clear and un- ambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import.”

Seemingly insulted, Vinson had not expected that the government “would effectively ignore the order.” He implied that the motion for clarification was a stalling method. “The sooner this issue is finally decided by the Supreme Court, the better off the entire nation will be. And yet, it has been more than one month from the entry of my order and judgment and still the defendants have not filed their no- tice of appeal [to the Court of Appeals].”

We should expect the DOJ to oppose the district court’s ability to issue a nationwide injunction. But anything less than a nationwide injunction would be meaningless. All of the named defendants work in the District of Columbia, far outside the jurisdiction of Brownsville, Texas.




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Dec 11, 2014

Hartford Courant on Increasing Support for Gun Rights

The Hartford Courant quotes the article I co-authored with Shelby Baird, The Shooting Cycle, to explain a recent poll showing an expansion in popular support for gun rights.

The waning support for gun control since Newtown’s immediate aftermath is not, however, entirely surprising. It mirrors a pattern of public opinion observed after other mass shootings.

“The pattern is a painfully familiar one,” South Texas College of Law Professor Josh Blackman and Yale University student Shelby Baird wrote in “The Shooting Cycle,” an article published in May in the Connecticut Law Review. The authors analyzed how the government and the public react to mass shootings and found that after a tragedy, “support for gun control surges.”

“With a closing window for reform, politicians and activists quickly push for new gun laws,” Blackman and Baird wrote. “But as time elapses, support decreases. Soon enough, the passions fade, and society returns to the status quo.”

The poll was released as gun control advocates, approaching the Newtown anniversary, have been holding vigils and calling attention to mass shootings that have occurred since the tragedy, hoping to rebuild momentum for their cause.

But Blackman and Baird, “The Shooting Cycle” authors, counter that in passing gun control legislation after a mass shooting, “time is of the essence.”

“Engaged politicians and interest groups supporting the law must move as quickly as possible before emotions subside,” they said, citing public opinion polling from the past two decades. In the case of Newtown, they argued, the “depth of the emotional capture” provided an opportunity to enact reform, and “it would be against this emotional backdrop that any legislative change would be made.”


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Dec 11, 2014

The Path From Preliminary Injunction to the Supreme Court for Texas Immigration Challenge

Texas has filed a complaint, challenging the legality of the President’s executive order on immigration (DAPA). They have also recently filed a motion for preliminary injunction. Let’s assume a PI is granted, enjoining the administration from implementing DAPA. (I’ll stress that Texas asked for the injunction to apply “nationwide,” so the DOJ cannot pull the trick they did with Obamacare, arguing that Judge Vinson’s order only applied in Florida).

At that point, there would be an immediate appeal to the 5th Circuit. Taking a shot in the dark here, but I imagine most three-judge panels of the 5th Circuit would likely agree with the district court, and the en banc 5th Circuit would also probably concur.

For timing, let’s make up some numbers, erring on the side of speed. The District Court grants the preliminary injunction in March 2015. The United States appeals to the 5th Circuit seeking a stay, and it issues a denial of a stay in August 2015.

Then what? Two steps. First, the SG would file for an emergency stay to the Court seeking a stay of the preliminary injunction. Second the SG would file a petition for certiorari to review the 5th Circuit’s decision to deny the preliminary injunction. Let’s do the cert petition first. If the cert petition is filed in October or November, the case would probably be argued in March 2016 with a decision by June 2016. Back to the emergency stay.

Emergency appeals for a motion to stay are generally not argued. I suppose the Court could request expedited arguments, especially if a cert petition is coming down the pike. But if the Court wants to grant cert, it won’t let the policy go into effect, only to potentially stop it a few moths later. But in either event, this issue is not resolved by the Supreme Court till June 2016. By this point, we will be four months from a Presidential election. The policy could probably not be implemented in such a short time until the changeover of administrations. People won’t be able to apply in this short window. Or, Congress may pass a new law in the interim beforehand, mooting the issue.

In sum, the preliminary injunction is the name of the game. If it is granted, the policy would likely never go into effect. If it is denied, the policy will be fully implemented before it ever gets to the Supreme Court. And, as President Obama reminded us, no future administration will be able to reverse it.

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Dec 11, 2014

Justice Kennedy Has Seth Waxman’s Back, and Gently Benchslaps Tom Goldstein

Oral argument in Gelboim v. Bank of America Corp. presented a duel of two of the premier Supreme Court advocates–Tom Goldstein for the petitioners, and Seth Waxman for the Respondents. During arguments, Goldstein called Waxman’s argument “in a word, ridiculous.” Justice Kennedy replied, and said “Excuse me, what is that word.” Goldstein doesn’t answer Kennedy’s question, and moved on with his argument.


That’s ridiculous!

H/T Jacob Berlove

Update: The audio is here. If you scan to 55:30, you can hear Goldstein’s ridiculous comment, but Kennedy’s comment is not recorded. I think there may have been some cross-talk, and someone else asked about the citations, but it isn’t clear.

Update 2: On further listening, I think the faint cross talk was a Justice asking about a citation, which would make sense in light of Goldstein’s response. The Court Reporter presumably heard Justice Kennedy’s comment (“Excuse me, what is that word.”), but it didn’t make it into the audio. As we learned with Justice Thomas’s remarks, the microphones do not capture everything. Comments that are noted in the transcript do not always make it clearly into the recording. I will wait for Alderson’s to release the final transcript to clarify the issue. In the interim, I have modified the post above, and eliminated the description of Justice Kennedy’s interjection.

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Dec 11, 2014

Congress, Not The President, Can Exempt States From Federal Marijuana Laws

Last year, Attorney General Holder issued “guidance” urging federal prosecutors to avoid enforcing marijuana laws in states that have decriminalized marijuana. Similar to the immigration context, I think such a categorical suspension of the law can hardly be justified under the auspices of  (our favorite) “prosecutorial discretion.” Likewise, the AG has decided not to enforce financial regulations against banks that deal with marijuana distributors. Of course, none of this was an actual exemption from prosecution. Banks aren’t stupid. They won’t listen to such hollow assurances. The Attorney General in 2017 can turn around and prosecute every single person who violated these statutes (so long as the Statute of Limitation had not run).

The way to exempt people from a law the executive dislikes is not through prosecutorial discretion, but through an act of Congress. And now, it seems the Cromnibus bill (which I hear is quite cromulent) will do just that. Think Progress reports:

But if the now-foundering budget deal dubbed Cromnibus or another similar one manages to pass, it will also have some much better news for marijuana advocates. Another provision added to the budget would protect medical marijuana laws in every state that has legalized it, by prohibiting the Department of Justice from using federal funds to prosecute medical marijuana actors in states where their actions are legal.

Here is the text of Rep. Rohrabacher’s amendment:

SEC. ll. None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont, Washington, and Wisconsin, to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

This is the correct way to exempt people from the prosecution of the law. It is especially reassuring that the law promotes federalism, and allows the states to experiment with policy, unencumbered from federal dictates.

I hope future Congresses codify the Executive’s decision not to prosecute certain crimes, rather than the Executive taking the responsibility himself.

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Dec 11, 2014

The Shooting Cycle Continues: For First Time, Majority of Americans Favor Gun Rights Over Gun Control

pew-2014The Pew Research Center has released a report showing that 52% of Americans favor the protection of the right to own guns, while only 46% favor controlling gun ownership. This is the first time in the two-decade long history of the poll that gun rights has surpassed gun control. It also represents a remarkable turnaround in public perception. In 1999, 66% favored gun control, and 29% favored gun rights.

As Shelby Baird and I discuss in The Shooting Cycle, other than brief spikes following mass killings in Columbine, or Virginia Tech or Newtown, there has been a decreasing mean for gun control. The Pew report reflects this change.

The balance of opinion favored gun control in the immediate aftermath of the Newtown tragedy in December 2012, and again a month later. Since January 2013, support for gun rights has increased seven percentage points – from 45% to 52% — while the share prioritizing gun control has fallen five points (from 51% to 46%).

Mapping the change of views since January 2013 (right after Newtown) to today is a striking reminder of the fact that these rare, isolated killings, as tragic as they are, only temporarily impact the cultural zeitgeist, and soon things return to how people viewed them before.

In fact, more people today think that guns are likely to protect people, than to put people at risk. The gains here come from people who were previously undecided. In December 2012, 16% didn’t know. Now only 5% didn’t know. Of that change in 11%, 9% made up their minds that guns make people safer. This is remarkable.


Since Newtown, virtually every single demographic favors stronger gun rights–men, women, old, young, white, black, educated, parents, urban, moderate Democrats, and others.

Over the past two years, blacks’ views on this measure have changed dramatically. Currently, 54% of blacks say gun ownership does more to protect people than endanger personal safety, nearly double the percentage saying this in December 2012 (29%)

Only liberal Democrats and Hispanics have not increased.

As was the case in December 2012, a majority of Democrats (60%) say guns do more to put people’s safety at risk, while only about a third (35%) say they do more to protect people from becoming crime victims. By contrast, eight-in-ten Republicans say guns do more to protect people from becoming crime victims, up 17-points from 2012.



The Washington Post echoes our conclusion:

These numbers may capture the short memory of many Americans. But the long-term trend is undeniably grim for gun-control advocates, who seem to be losing ground even among their strongest traditional sympathizers.


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Dec 11, 2014

Radio Today: Jim Bohannon Show and Stand Up! with Pete Dominick

Today at 11:00 ET I will be live on “Stand Up! With Pete Dominick,” joined by my good friend Eric Segall. We will be discussing executive power. I am also recording a segment on FantasySCOTUS tomorrow morning for the Jim Bohannow Show, which is syndicated nationwide to 500 stations. I’m not sure when it will air.

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Dec 10, 2014

Posner on Murky and Remote Dangers

Judge Posner offered this rejoinder to Justice Holmes’s classic formulation of “clear and present danger”:

It’s a dumb phrase. A murky remote danger could be very great.


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Dec 10, 2014

Reid: Obamacare “wonderful legacy” for the President

Harry Reid tells Politico that he doesn’t “want to go back” on Obamacare:

“I’m not going to go back,” Reid said. “I think it’s a wonderful legacy for him.”

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Dec 10, 2014

The 2001 AUMF and the 2015 AUMF

Jack Goldsmith offers a detailed breakdown on Secretary of State Kerry’s desired AUMF. The long and short of it, is that it is wide-ranging, applies to unnamed “associated forces,” has no clear ending date, and is not geographically limited.

While Kerry resisted the notion that the administration should send Congress a concrete AUMF proposal, he did state the four main elements of what the administration prefers in an IS AUMF: (i) authority to use force against IS andassociated forces; (ii) no geographical limitation; (iii) no ground troop limitation; and (4) a three-year time-limit on the authorization, with an exception for an “extension in the event that circumstances require it.”  Kerry was very vague on point (iv) but it sounds like he wants to maintain the Executive branch’s ability to extend the conflict beyond three years based on the President’s (as opposed to Congress’s) determination about the continuing threat posed by IS.  That does not sound like much of a time limit, and certainly not one that requires new congressional authorization after three years.


In other words, it seems just as broad as the 2001 AUMF.

What the administration appears to be seeking is an open-ended IS AUMF akin to the one that Congress gave the President for al Qaeda and affiliates in the 2001 AUMF.  In addition to the features noted above, the administration would like an “associated forces” extender but (apparently) not a reporting requirementabout covered groups or places.  This would replicate the problem under the 2001 AUMF of Congress (and the American people) not necessarily knowing who we are fighting against, or where.  It is also worth noting that Kerry envisions the proposed IS AUMF to extend very broadly geographically.  When Senator Udall asked how Kerry’s outlined AUMF would “treat groups who have pledged their allegiance to the Islamic State, including, as of December 2014, groups in Algeria, Libya, Egypt, Yemen, and Saudi Arabia?,” Kerry responded: “They should be associated forces. They fit under that category.”  All of these factors, taken together, amount to a desire for an extraordinarily broad IS AUMF.

As Goldsmith notes, this presents a stunning repudiation of the President’s NDU speech:

Pretty amazing coming from an administration whose Chief Executive said in his NDU speech 18 months ago (i) “Unless we discipline our thinking, our definitions, our actions, we may . . . continue to grant Presidents unbound powers more suited for traditional armed conflicts between nation states,” (ii) that he “look[ed] forward to engaging Congress and the American people in efforts to refine, and ultimately repeal, the [2001] AUMF’s mandate,” and (iii) that he “will not sign laws designed to expand this mandate further.”  I view of Kerry’s testimony as the final repudiation of this element of the NDU speech, and as an acknowledgment that the “Forever War” is not close to over.

Kerry also re-asserts that the 2001 AUMF is sufficient authorization:

What About the 2001 AUMF?  Kerry said a few interesting things about the 2001 AUMF.  He argued that the 2001 AUMF extends to IS because (i) IS is the same group as al Qaeda in Iraq (AQI), which the United States fought in the 2000s, (ii) AQI was part of or an “associated force” of al Qaeda, and (iii) a mere name change from AQI to IS cannot destroy the 2001 AUMF authorization.  The problem with this argument is that Kerry fails to note the organizational and other differences between AQI and IS, most notably the crucial fact that IS (unlike AQI) is not part of or associated with Al Qaeda.  He kind of made this last point, and thus contradicted himself, when he said: “We acknowledge that there is a gap in time and a sufficient differential in what we’re fighting that the American people are owed a more precise articulation that meets the current moment.”  Kerry also said that “we will support the inclusion of language in the new AUMF that will clarify that the Daish-specific AUMF rather than the 2001 AUMF is the basis for the use of military force.  And I think that will give comfort to a lot of people.”  But it shouldn’t give comfort unless Congress somehow (i) makes clear that the 2001 AUMF does not authorize force against IS, and (ii) repudiates the flexible “associated forces” rationale (or whatever it is) for IS being covered by the 2001, to make sure it is not applied to the IS AUMF to extend it to some distantly related group in the future.

Also, Goldsmith highlights the administration’s sophistry concerning the War Powers Act.

President Obama, who served on this committee for, you know, four years, and Senator Biden — then Senator Biden, now vice president — served in this committee for about — what is it? You know, 30 years, or near. Both are huge supporters of the War Powers Act, as I am. He’s lived by it, even in situations where he didn’t feel like he had to necessarily strictly set it up, he set it up. He always, you know, moved on the side of caution, and — and of — of compliance.

This simply isn’t accurate.  It is more accurate to say that the Obama administration rendered the WPR’s 60-day limit “meaningless in many important contexts when it concluded that it did not apply to the Libya action.”

Goldsmith concludes:

The President’s leadership from behind on this issue continues to astonish me.


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Dec 10, 2014

The Many Briefs of Sigram Schindler Beteiligungsgesellschaft mbH

A quick search of the Westlaw Briefs database reveals quite a number of briefs filed on behalf of Sigram Schindler Beteiligungsgesellschaft mbH, the subject of the Court’s order to show cause.

Attorney Howard N. Shipley of Foley Lardner filed 2 cert petitions on behalf of Sigram:

  1. Petition for Certiorari, Sigram Schindler Beteiligungsgesellschaft MBH v. Cisco Systems, Inc., 2014 WL 4201694 (8/25/14).
  2. Petition for Certiorari, Sigram Schindler Beteiligungsgesellschaft mbH v. Lee, 2014 WL 5211966 (10/6/14)

A colleague contacted the Supreme Court Bar, and learned that Shipley was admitted on 5/19/14, roughly three months before he filed the cert petition in the Cisco case. A Westlaw search shows that these are Shipley’s only filings at the Supreme Court. He has filed three briefs before the Federal Circuit, all on behalf of Sigram.

Attorney Chid S. Iyer of Sughrue Mion filed a number of other amicus briefs on behalf of Sigram in several recent IP cases before the Court.

  1. Brief of Amicus Curiae Sigram Schindler Beteiligungsgesellschaft mbH, in Support of Neither Party, Association for Molecular Pathology v. Myriad Genetics Inc. (1/23/13).
  2. Brief of Amicus Curiae Sigram Schindler Beteiligungsgesellschaft mbH, in Support of Petitioner, Wildtangent, Inc. v. Ultramercial, LLC (9/23/13).
  3. Brief of Amicus Curiae Sigram Schindler Beteiligungsgesellschaft mbH, in Support of Petitioner,  Alice Corp. Pty. Ltd v. CLS Bank Intern. (10/7/13).
  4. Brief of Amicus Curiae Sigram Schindler Beteiligungsgesellschaft mbH, in Support of Neither Party, Alice Corp. Pty. Ltd v. CLS Bank Intern.(1/28/14).

To give you a flavor, here is an excerpt of the Myriad brief:

Mathematics knows since centuries the need of an unquestionable basis for making precise statements: Here an “orthogonal coordinate system” usually serves as such a basis – often an “independent coordinates system” is sufficient. This court builds on this technique of Mathematics by its use of the term and notion “creative alias inventive concept”, in its above decisions, when asking for precise descriptions of properties of claimed inventions: Its “creative/inventive concepts” of an invention determine its state space exactly as the Mathematics’ “independent coordinates” of a system determine its state space (i.e. the space they both “span”).

Iyer has also filed a brief on behalf of Sigram before the Federal Circuit:

  • Brief of Amicus Curiae, Sigram Schindler Beteiligungsgesellschaft mbH, IN SUPPORT OF NEITHER PARTY, Lightning Ballast Control v. Philips (5/28/13). (A colleague who sent me the brief, and practices in this field, told me “I have literally no idea what side the attached Sigram brief is taking, nor what argument it is making.”).

According to a Westlaw search, all of Iyer’s appellate briefs were filed on behalf of Sigram.

Iyer’s partner at Sughrue, Michael R. Dzwonczyk, filed an amicus breif on behalf of Sigram for the Federal Circuit as well.

  • Brief of Amicus Curiae Sigram Schindler Beteiligun gsgesellschaft mbH, in Support of Neither Party, CLS BANK INTERNATIONAL v. Alice (Fed. Cir. 12/6/12).

There may be more, please send if you have any.

Update: Here are three briefs filed on behalf of Schindler in the Court of Appeals for the Federal Circuit:


Here is a section from the final rehearing petition:

SSBG is aware that putting this question to this Court3), while being aPetitioner before it, may be seen as being undue and/or foolish. Yet, SSBG needsthis question to be clarified [67,37,78], possible only as required by the SupremeCourt, for further investing into innovations for the US economy, i.e. into creating/developing/marketing a range of different innovations in advanced telecommunica-tions/IPR technologies. SSBG and its subsidiaries, together currently only a “smallcap company”, to this end invested in/for the US market already far more than 20 Mio US$ – on which totally US based and very large and internationally very successful necessarily quantities minded, hence less innovative, companies are supposed to leverage worldwide, up to SSBG’s business model – but had started  this investment by about the year 2005, when the U.S. Highest Courts’ SPL precedents as to ETs and their foreseeable upcoming challenges of SPL precedents was seemingly trustworthy and predictable. It is extremely likely that similarquestions are at issue with any US innovation business company. This is a true argument for urgently clarifying the question put above.




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Dec 10, 2014

Obama: “Theoretically A Future Administration” Could Reverse DAPA

Although DAPA, formerly known as IAEA, only offers a two-year reprieve from deportations, the President admitted what is obvious–once the immigrants receive some status, it will be politically impossible for any future president to remove them.

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely, politically, that they reverse everything we’ve done.”

This candor makes the President’s claim about the limited scope of the order even less plausible.

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Dec 10, 2014

Constitutional Faces: Dollree Mapp (1923-2014)

The Marshall Project reports on the death of Dollree Mapp, the eponymous defendant of the landmark decision in Mapp v. Ohio.

The woman behind the ruling, Dollree “Dolly” Mapp, died six weeks ago in a small town in Georgia, with virtually no notice paid. She was 91, as best we can tell.

Mapp’s life was as colorful and momentous as her death was quiet. She went from being a single teenage mother in Mississippi to associating with renowned boxers and racketeers in Cleveland to making her way in New York City, where she launched one business after another. “Some of them were legitimate, and some of them were whatever they were,” said her niece, Carolyn Mapp, who looked after her aunt in her final years. Along the way she tangled with police, and when she stood up to them in Cleveland – a black woman, staring down a phalanx of white officers in the 1950s – she made history.

The obituary has a detailed account of the search of Mapp’s home.

In May of that year, police were investigating a bombing at the house of Don King – a numbers racketeer who later became a famed boxing promoter – when they received a tip that a suspect might be hiding in Mapp’s home. Three officers showed up at Mapp’s place, demanding to be let in. Mapp refused. She called a lawyer, who advised her to relent only if police produced a warrant. Even then, the lawyer told her, she should make sure to read it. About three hours later, the police, now between 10 and 15 in number, pried a door to force their way in. A lieutenant, waving a piece of paper, said they had a warrant. Mapp asked to see it. The lieutenant told her no. So Mapp grabbed the paper from him and stuffed it down the front of her blouse. She would later testify to what happened next:

“What are we going to do now?” one of the officers asked.

“I’m going down after it,” a sergeant said.

“No, you are not,” Mapp told the sergeant.

But the sergeant “went down anyway,” grabbing the paper back and keeping Mapp from ever reading it. In years to come, she would say she suspected the paper was blank.

One of the most fascinating aspects of Mapp v. Ohio was that it was originally viewed as an obscenity prosecution, but the Court repositioned it as an exclusionary act case.

The police found the man they were looking for (although he was later cleared in the bombing). But the search didn’t end there. Led by the sergeant who had retrieved the dubious warrant – a man who would later say Mapp had “a swagger about her” – police searched every room, upstairs and down, rummaging through boxes and drawers. During this search they found a pencil sketch of a nude and four books considered obscene, with titles that included “Memoirs of a Hotel Man” and “Affairs of a Troubadour.” Mapp told police the materials belonged to a former roomer, for whom she had stored them. But she was charged under an Ohio law that made possession of obscene material a felony. At trial, Mapp testified that when an officer found the books, “I told him not to look at them, they might embarrass him.” The jury took 20 minutes to convict, after which Mapp was sentenced to up to seven years.

In their initial consideration of the case all nine justices agreed that the obscenity law violated the First Amendment. But when Associate Justice Tom C. Clark drafted the majority opinion, he shifted the focus of the case to the Fourth Amendment, which prohibits unreasonable search and seizure. By the time Mapp’s case reached the Supreme Court, it had become clear that the police never had obtained a warrant to search Mapp’s home.


Dollree Mapp at home in an undated photograph. COURTESY OF THE MAPP FAMILY

Dollree Mapp at home in an undated photograph. COURTESY OF THE MAPP FAMILY

Dollree Mapp, left, in an undated photograph. COURTESY OF THE MAPP FAMILY

Dollree Mapp, left, in an undated photograph. COURTESY OF THE MAPP FAMILY




Dollree Mapp outside her home in Cambria Heights, New York in 1971. COURTESY OF THE MAPP FAMILY

Dollree Mapp outside her home in Cambria Heights, New York in 1971. COURTESY OF THE MAPP FAMILY


Update: The Times has this obituary, and manages to take a swipe at the Roberts Court:

The current chief justice, John G. Roberts Jr., was a lawyer in the Reagan administration in the 1980s and helped it attack the exclusionary rule through litigation, proposed legislation and other means. In 2009, he wrote the majority opinion in Herring v. United States, a 5-to-4 decision that upheld the conviction of Bennie D. Herring after a search led to his arrest on drug and weapons charges based on false information that he was the subject of a warrant.

Some of the rule’s supporters worry that it could be significantly weakened or abolished under the current court. Jeffrey Fisher, a professor at Stanford Law School, said the issue would most likely go before the high court again as Herring is interpreted by lower courts.

“Some are reading Herring broadly,” Mr. Fisher said, “and some narrowly.”



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Dec 9, 2014

Obama on Colbert: “there’s always the temptation to want to go ahead and get stuff done, and democracy is messy and its complicated.”

During his appearance on the Colbert Report, President Obama offered a candid, and chilling insight into his views on evolving executive power. In a bizarre way, he traces his progression from a candidate railing against Executive Power, to his 180-degree turn out of phase.

1:38 COLBERT: Speaking of trusting people with extraordinary power, I want to go back one second to 2008. Part of your campaign was believing that the president at the time had invested the Executive with too much power. Then you became president, and you seem to have a whole lot of power. Does that happen to every president, where you get into the office and you think “oh, you know what, I might be the only one I trust with this much power, so I’ll hold onto it.”?

2:10 POTUS: For the first time, you’re asking a sensible question. What is true – [laughter]. The structure of our democracy is checks and balances. And every president, even if on the outside they were complaining, there’s always the temptation to want to go ahead and get stuff done, and democracy is messy and its complicated.

The President says “democracy is messy and its complicated.” And he means that as a bad thing. I don’t know whether to laugh or cry or cite it in a brief (probably all of the above). Of course our democracy is “messy and complicated.” That’s how the separation of powers works. Gridlock is part of our constitutional order. All 9 justices in Noel Canning accepted that important point.

It gets worse. The President actually explains how he drifted from Candidate Obama in 2008, to Unitary Executive Obama in 2009 (if it even took that long).

So the tendency is to say “well, let me see if I can get this done,” just because things are so bottled up – especially in a moment where there’s a lot of gridlock.

There you have it. The President proves my theory that I’ve articulated for months. Gridlock gives him the legal justification to expand his legal authority. I have recently decided to turn my article, Gridlock and Executive Power into a two-part series. First, focusing on foreign affairs, and second on domestic affairs.

What comes next is even more fanciful–he cites the Office of Legal Counsel as a check!

What I’ve tried to do is to make sure that the Office of Legal Counsel, which weighs in on what we can-and-cannot do, is fiercely independent, they make decisions, we work well within the lines of that

Chutzpah! His legal team went through “60 iterations” of his immigration plan. Each time, the President told them to go farther, and utilize the “fullest extent” of his power. How can he even say this? With respect to Libya, he ignored his OLC and asked Harold Koh. It isn’t clear if DACA is even justified, as OLC never provided a written opinion. This is sophistry of the worst sort.

Next, the President repeated his standard refrain of “pass a bill.”

 But my preference would be to get a whole lot more done through Congress. Which is why, for example in the immigration legislation, what I said to them is “if you don’t agree with how we’re approaching this executive action, there’s an easy solution: pass a bill. If you pass a bill, then we’re going to be able to get things done.”

This view borders on extortion. If you don’t pass the bill I want, I’ll exceed my constitutional authority, and you can’t stop me, even if you defund me. In what surreality is this consistent with the rule of law? The President can’t simply skip over our “messy” and “complicated” democracy. It’s there for a reason.

Finally, he gives everything away.

And, you know what, too often what we have is a Congress that is stuck, and then the Executive and/or the courts end up filling the gaps. And I think that the more we can get Congress to actually work the way it’s supposed to, the less these problems come up.

When the Congress doesn’t act, the Executive fills in the gaps. This is not Chevron. Agencies do not receive deference when the President wants something Congress won’t give. There is no claim to deference when the President attempts to rewrite the law because Congress is gridlocked. This is not “gap filling” but “gap creation.”

Alas, in the end, the President acknowledges the courts play a role here. They do. With King v. Burwell, we have a rare opportunity to understand the divergence between the administrative process underlying Chevron, and the executive lawmaking of today. Stay tuned for more on this point.


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Dec 9, 2014

If Supreme Court Invalidates Rule in King, 34 States Represented by 49 Republican Senators Will Be Affected

For some time, I have wondered what will happen the day after King v. Burwell is decided. If the Court invalidates the subsidies, then 34 states without a state-run exchange will lose their subsidies. To figure out what this means politically, I broke down each state based on the party of its Senators.

Of those 34 states affected, and their 67 Senators (minus Angus King), 49 are Republicans and 18 are Democrats. In other words, once the mandate issues, the subsidies turn off, and insurers exit the market, people will start calling their Senators to complain. And the overwhelming majority of those receiving the complaints will be Republicans. This is 49 out of the entire caucus of 54.

I can’t see this ending well for the GOP, as they will be in the toughest spot.

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Dec 9, 2014

Will Gruber Subpoena Trigger Executive Privilege Battle?

Much of Jonathan Gruber’s testimony before Congress consisted of saying that absolutely none of his comments from years ago were accurate. On his comments about the tax subsidies he said:

He also said, in a response to Rep. Desjarlais, that he wasn’t certain about the subsidies, as the President in 2012 may not establish a federal exchange, thus leaving the states in a lurch.

This supports the challenger’s position in King.

But more importantly, he adamantly refused to tell the Committee how much the government paid him. But even more importantly, he *refused* to explain whether he had any conversations with anyone in the Obama Administration.

It almost seemed like he was attempting to shield himself with executive privilege. Unreal.

The Committee said it will subpoena Gruber. Let’s see if DOJ intervenes to oppose the subpoena. That would make a remarkable battle over executive privilege.

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Dec 9, 2014

Gruber Apologizes and “Clarifies” his comments about Tax Credits

Here is the key portion of Jonathan Gruber’s mea culpa:

I did not draft Governor Romney’s health care plan, and I was not the “architect” of President Obama’s health care plan. I ran microsimulation models to help those in the state and federal executive and legislative branches better assess the likely outcomes of various possible policy choices.

After the passage of the ACA, I made a series of speeches around the nation endeavoring to explain the law’s implications for the U.S. health care system from the perspective of a trained economist. Many of these speeches were to technical audiences at economic and academic conferences.

Over the past weeks a number of videos have emerged from these appearances. In excerpts of these videos I am shown making a series of glib, thoughtless, and sometimes downright insulting comments. I apologized for the first of these videos earlier. But the ongoing attention paid to these videos has made me realize that a fuller accounting is necessary.

I would like to begin by apologizing sincerely for the offending comments that I made. In some cases I made uninformed and glib comments about the political process behind health care reform. I am not an expert on politics and my tone implied that I was, which is wrong. In other cases I simply made insulting and mean comments that are totally uncalled for in any situation. I sincerely apologize both for conjecturing with a tone of expertise and for doing so in such a disparaging fashion. It is never appropriate to try to make oneself seem more important or smarter by demeaning others. I know better. I knew better. I am embarrassed, and I am sorry.

In addition to apologizing for my unacceptable remarks, I would like to clarify some misconceptions about the content and context of my comments. Let me be very clear: I do not think that the Affordable Care Act was passed in a non-transparent fashion. The issues I raised in my comments, such as redistribution of risk through insurance market reform and the structure of the Cadillac tax, were roundly debated throughout 2009 and early 2010 before the law was passed. Reasonable people can disagree about the merits of these policies, but it is completely clear that these issues were debated thoroughly during the drafting and passage of the ACA.

He also addresses his comments about tax credits.

I also would like to clarify some misperceptions about my January 2012 remarks concerning the availability of tax credits in states that did not set up their own health insurance exchanges. The portion of these remarks that has received so much attention lately omits a critical component of the context in which I was speaking. The point I believe I was making was about the possibility that the federal government, for whatever reason, might not create a federal exchange. If that were to occur, and only in that context, then the only way that states could guarantee that their citizens would receive tax credits would be to set up their own exchanges. I have a long-standing and well-documented belief that health care reform legislation in general, and the ACA in particular, must include mechanisms for residents in all states to obtain tax credits. Indeed, my microsimulation model for the ACA expressly modeled for the citizens of all states to be eligible for tax credits, whether served directly by a state exchange or by a federal exchange.

Nothing he said here is inconsistent with what he said in January 2012. The only reason why the federal government would not set up an exchange is if all 50 states establish their own exchanges.

Dave Weigel summarizes the testimony:

Ohio Representative Jim Jordan and Michigan Representative Justin Amash generally focused their questions on that.

“What did you mean when you repeatedly said that the citizens of some states may not quality for Obamacare tax credits?” asked Amash.

“When I made those comments, I believe I was reflecting uncertainty about the federal exchange,” said Gruber. “I don’t recall exactly what the law says.”

“I’m sorry,” said Amash. “You ran the economic model on Obamacare and you don’t recall what the law says?”

“Every model I ran assumed that the tax credits would be available,” said Gruber.

Issa dug in, asking Gruber that if he was aware that “the language [of the law] explicitly” nullified his model. This was generally understood by Democrats to be gaslighting, attempting to convince them that the law had always included a self-destruct button.

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Dec 9, 2014

If this is where the monarchy is headed, count me out!

I had a feeling this would happen:

President Barack Obama spent several hours on Monday in a closed-door Oval Office meeting seeking advice on how to establish a monarchy, Fox News reports.

According to Fox, the President peppered his Oval Office guest with detailed questions about the mechanics of setting up a monarchy and was curious about the perks and powers that go along with it.

Obama’s guest advised him that establishing a monarchy would probably require rewriting or even replacing the Constitution, an option that Obama reportedly said would be “difficult, but doable.”

Introducing a note of caution, the guest urged the President to alter the Constitution so that it vested the monarch with genuine power, adding, “You don’t want to wind up being a figurehead who just goes around visiting foreign dignitaries and so forth.”

According to the Fox report, the President came away “intrigued” by the meeting and said he would explore the idea further next week when Congress is on vacation.

BTW, I hope you catch the reference to the title of the post. It’s quite apt.

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