Aug 25, 2014

The Onion On The Shooting Cycle

That’s about right:

Echoing at a soft and constant volume across the nation’s collective conscious, the ambient, unending background hum of modern American life reported today that an armed gunman remains at large after opening fire on innocent bystanders. “Community members are advised to shelter in place,” stated the incessant, low-level white noise of death counts and missed warning signs emanating steadily from all directions, which confirmed that a vigil honoring the victims of the shooting will be held Thursday. “There were maybe five, six shots one after the other, and everyone started panicking. The gun was obtained legally. You never think that something like this could happen in your town.” The ceaseless, droning din of day-to-day existence in the United States went on to add, “lockdown, grieving families of the victims, troubled young man, AR-15, mental health system, senseless, took his own life, unsuccessful legislative efforts.”

See The Shooting Cycle.

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Aug 25, 2014

Gridlock and Executive Power on the Cover of National Review

An adaptation of my article, Gridlock and Executive Power, will grace the cover of the September 8 issue of National Review. The article, behind a $.25 paywall, is available now. Here is the introduction of The Gridlock Clause.

Since 2010, when the Democrats lost their majority in the House and their filibuster-proof majority in the Senate, President Obama’s ability to pursue legislative changes has ground to a halt. Headline after headline blares that the “do-nothing Congress” has enacted the fewest laws in decades. But that gridlock hasn’t halted the president’s plans to implement his policies. In fact, he claims it has strengthened his power to act alone — if Congress won’t act, he can, and will.

President Obama routinely cites Congress’s obstinacy to his agenda as a justification for engaging in a series of executive actions that suspend, waive, and even rewrite statutes. His frustration is understandable, but his response is not justifiable. Brazenly maneuvering around the lawmaking function of Congress is an affront to the constitutional order.

There is nothing new about congressional gridlock. It is perhaps worse than ever today, but partisan impasses are not novel. There is also nothing new about presidents’ creatively reinterpreting the law in order to justify executive policies. What is new is the relationship between these two factors — invoking gridlock as a justification for redefining executive authority. This disruptive constitutional philosophy poses a threat to our separation of powers. It establishes a precedent for this and future presidents to permanently blur the lines between the executive and legislative prerogatives.

On the cover, the President is aptly erasing the “Take Care” clause from the Constitution. Indeed.


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Aug 25, 2014

Prop2 Class 3: Introduction to the Sales Contract

Today we will provide an introduction to buying and selling homes, and go over the contract of sale.

All of Texas’s standardized sales contract forms are available here. You may wish to take a look at the Texas Real Estate Commission Residential Sales Contract, which we will go over in class.

The lecture note are here, and the live chat is here.

The site of the first case, Licari v. Blackwelder, is in Westport, CT.


The Texas Statute of Frauds provides:

Sec. 26.01.  PROMISE OR AGREEMENT MUST BE IN WRITING. (a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is

(1)  in writing; and

(2)  signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.

(b)  Subsection (a) of this section applies to:

(1)  a promise by an executor or administrator to answer out of his own estate for any debt or damage due from his testator or intestate;

(2)  a promise by one person to answer for the debt, default, or miscarriage of another person;

(3)  an agreement made on consideration of marriage or on consideration of nonmarital conjugal cohabitation;

(4)  a contract for the sale of real estate;

(5)  a lease of real estate for a term longer than one year;

(6)  an agreement which is not to be performed within one year from the date of making the agreement;

(7)  a promise or agreement to pay a commission for the sale or purchase of:

(A)  an oil or gas mining lease;

(B)  an oil or gas royalty;

(C)  minerals;  or

(D)  a mineral interest;  and

(8)  an agreement, promise, contract, or warranty of cure relating to medical care or results thereof made by a physician or health care provider as defined in Section 74.001, Civil Practice and Remedies Code.  This section shall not apply to pharmacists.

The Texas Enacted Uniform Electronic Transactions Act provides:

(8)  “Electronic signature” means an electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.

(b)  This chapter applies only to transactions between parties each of which has agreed to conduct transactions by electronic means.  Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.


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Aug 25, 2014

Prop1 Class 3: Law and Judges

Today will be a slightly different class. We will cover Pierson v. Post, and the Case of the Spelunceuan Explorers. The focus of our class will be law and judges. Though the less will begin around the rule of capture, I hope the discussion eludes that narrow focus, and that we have a foxy talk.

The lecture notes are here, and the live chat is here.

Pierson v. Post

A few historical notes notes.

First, about the judges. Daniel Tompkins wrote the majority. He went on to serve as Governor of New York and Vice President for James Monroe. And where did Tompkins die? In a neighborhood of Staten Island, now known as Tompkinsville.


The author of the dissent was Brokholst Livingston, who later received a recess appointment to the Supreme Court from President Jefferson. He would be confirmed in 1807, and serve until his death in 1823. Livingston served a a secretary to future Chief Justice of the United States John Jay in Spain from 1779-1782.


Here is a map showing Post’s home in 1800 (courtesy of Professor Angela Fernandez of the University of Toronto).


Here are some drawings of fox hunts:



Here is a video about the controversy of the fox hunt in the UK:

The Case of the Speluncean Explorers

After you read “The case of the Speluncean Explorers,” please vote which Justice you agree with most. 

This is a picture of Lon Fuller, the author of the Case of the Speluncean Explorers.


A lot of authors have tried to write additional version of this article, but they are nowhere near as good as the original.  speluncean


By the way, for you musical fans, the case of Commonwealth v. Valjean is based, of course, on Victor Hugo’s Les Miserables (Les Miz as you may know it). Jean Valjean steals a loaf of bread to feed himself and his starving sister and neice. He is arrested, and spends 19 years as a “slave to the law.” The movie version of this musical was atrocious. The singing made me cringe. If you can ever see it on Broadway, you should. It is a fantastic parable of law, morality, and ethics.

Valjean and Javert sing about the crime in “Look Down” (starts at 2:29)

JAVERT: Now bring me prisoner 24601, Your time is up, And your parole’s begun, You know what that means.

VALJEAN: Yes, it means I’m free.

JAVERT: No! It means you get, Your yellow ticket-of-leave, You are a thief

VALJEAN: I stole a loaf of bread.

JAVERT: You robbed a house.

VALJEAN: I broke a window pane. My sister’s child was close to death, And we were starving.

JAVERT: You will starve again, Unless you learn the meaning of the law.

VALJEAN: I know the meaning of those 19 years, A slave . . .  of the law

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Aug 24, 2014

On 200th Anniversary, British Burn White House Again

More or less.

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Aug 24, 2014

Robots Lack Common Sense

Fears that robots will replace humans in all aspects of the labor market are vastly unfounded. The Times takes a look at what Robots don’t do well–”common sense.”

So what does that mean for workers over the years and decades ahead? Mr. Autor says that this weakness leaves plenty of opportunities for humans to serve as intermediaries of sorts between increasingly intelligent computers that nonetheless lack that common sense.

He invokes the idea of “Polanyi’s Paradox,” named for the Hungarian thinker Michael Polanyi, who observed that “we know more than we can tell,” meaning humans can do immensely complicated things like drive a car or tell one species of bird from another without fully understanding the technical details.

“Following Polanyi’s observation,” Mr. Autor writes, “the tasks that have proved most vexing to automate are those demanding flexibility, judgment, and common sense — skills that we understand only tacitly.”

So what does that mean for the jobs that will exist in the future, even as technology gets better and better at accomplishing many of the things that humans do now?

“Many of the middle-skill jobs that persist in the future will combine routine technical tasks with the set of non-routine tasks in which workers hold comparative advantage — interpersonal interaction, flexibility, adaptability and problem-solving,” Mr. Autor writes. He specifically mentions medical support jobs, building trades and some clerical jobs that require decision-making rather than typing and filing.

We need not yet welcome our robotic overlords.

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Aug 23, 2014

DOD response to GAO Concerning Legality of Berdahl Swap

I previously noted that the GAO found that the release of the detainees from Guantanamo violated the plain text of the NDAA, and violated the Anti-Deficiency Act. The DOD has now released their formal response to the GAO questions, via Lawfare.

In short, they argue that there is no consequence for failing to provide notice, and failing to provide notice doesn’t make the release unlawful:

The fact that the Secretary did not provide notice 30 days before the transfer as described in section 1035(d) does not alter that conclusion. Section 1035(d) states that the Secretary “shall notify the appropriate committees of Congress of a determination . . . under subsection . . . (b) not later than 30 days before” a covered transfer, but section 1035(d) specifies no consequence for the failure to make that notification. Thus, while section 1035(d) imposes a legal requirement that the Secretary provide Congress with notice 30 days before making certain transfers, neither it nor any other provision of section 1035 (or the FY 2014 NDAA) states that a transfer that is otherwise authorized by section 1035(b) is rendered unlawful by the absence of the notification.

They base this on the “plain text” of the 2014 NDAA:

The language of the transfer restriction in the prior version of the National Defense Authorization Act, the NDAA for Fiscal Year 2013 (“FY 2013 NDAA”), Pub. L. 112-239, 126 Stat. 1914, supports this plain language reading of the FY 2014 NDAA. The FY 2013 transfer restriction stated that, subject to a limited exception, the Secretary could not use any funds available to the Department of Defense to make a transfer “unless the Secretary submit to Congress” a certification containing specified findings “not later than 30 days before the transfer.” FY 2013 NDAA, section 1028(a) (1). Unlike the language in section 1035 of the FY 2014 NDAA, the FY 2013 language expressly conditioned the lawfulness of a transfer on the Secretary’s notifying Congress 30 days in advance of the transfer. Congress’s deliberate decision not to use that language in the FY 2014 NDAA strongly suggests that the FY 2014 NDAA—as its plain text indicates—does not condition the lawfulness of the transfer itself on the provision of notice.

This is quite different from Secretary Hagel’s initial efforts to rely on the inherent Article II powers of the President, and also different from the NSC’s explanation that Congress did not mean for the statute to apply under these circumstances. This seems to be a third explanation, though equally weak. It is not surprising that the GAO found this explanation unpersuasive.

The memo offers two additional rationales, based on “statutory interpretation or under separation of powers principles.”

The first seems to fall back on a John Yoo style constitutional avoidance argument–if the statute applied in this manner, it would violate the separation of powers, so we interpreted it in a way that wold not raise these difficulties:

First, section 1035(d) might be construed as having been inapplicable to this particular transfer. The transfer was necessary to secure the release of a captive U.S. soldier, and the Administration had determined that providing notice as specified in the statute could jeopardize negotiations to secure the soldier’s release and endanger the soldier’s life. In those circumstances, providing notice would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members. Such interference would “significantly alter the balance between Congress and the President,” and could even raise constitutional concerns; and courts have required a “clear statement” from Congress before they will interpret a statute to have such an effect. Armstrong v. Bush, 924 F.2d 282, 289 D.C. Cir. (1991). Congress may not have spoken with sufficient clarity in section 1035(d) because the notice requirement does not in its terms apply to a time-sensitive prisoner exchange designed to save the life of a U.S. soldier. Cf. Bond v. United States, 134 S. Ct. 2077, 2090-93 (2014).

The second rational also offers a separation of powers-style analysis:

Second, if section 1035(d) were construed as applicable to the transfer, the statute would be unconstitutional as applied because requiring 30 days’ notice of the transfer would have violated the constitutionally-mandated separation of powers. Compliance with a 30 days’ notice requirement in these circumstances would have “prevent[ed] the Executive Branch from accomplishing its constitutionally assigned functions,” Morrison v. Olson, 487 U.S. 654, 695 (1988), without being “justified by an overriding need” to promote legitimate objectives of Congress, Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977). As just discussed, the Administration had determined that providing notice as specified in the statute would undermine the Executive’s efforts to protect the life of a U.S. soldier. Congress’s desire to have 30 days to weigh in on the determination that the Secretary had already made, in accordance with criteria specified by Congress, that the transfer did not pose the risks that Congress was seeking to avoid, was not a sufficiently weighty interest to justify this frustration of the Executive’s ability to carry out these constitutionally assigned functions. Thus, even though, as a general matter, Congress had authority under its constitutional powers related to war and the military to enact section 1035(d), that provision would have been unconstitutional to the extent it applied to the unique circumstances of this transfer. And, just as section 1035(d) would be unconstitutional to the extent it was construed as applicable to the transfer, the broader reading of section 8111 would likewise be unconstitutional as applied to that transfer, because it would attempt to impose through the spending power the same unconstitutional requirement that section 1035(d) would attempt to impose directly.

For the reasons Jack Goldsmith offered here, the constitutional avoidance approach is difficult to square where the text is unambiguous–even though they found a way to make unambiguous text support their case.

As an asides, does anyone know if there is any way a private cause of action under the false claims act, pursuant to a violation of the Anti-Deficiency Act (Glenn Reynolds hinted at this) . I understand the GAO’s finding of a violation of the ADA has basically no effect.

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Aug 23, 2014

8,000th Post on JoshBlackman, and 1,000,000+ Visitors

Sometime earlier this week I published my 8,00th post on I hit post number 7,000 on January 21, 2014, so it took roughly 6 months to write 1,000 posts. I hit 5,000 posts on 12/19/2012. I launched this blog on September 27, 2009. I hit 1,500 posts on 1/19/2011 and 2,000 posts on 5/10/2011. During my hiatus from August 2011 to August 2012, I hit 3,000 posts on 11/14/2011, 3,500 posts on 2/1/2012, 4,000 posts on 4/13/2012, and 4,500 posts on 7/27/2012.

Also, at some point last month I crossed the 1,000,000 visitor threshold.

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Aug 23, 2014

Are We Engaged in “Hostilities” in Iraq?

Jack Goldsmith weighs in on whether, in the absence of further congressional authorization, the President may pull another Harold Koh and claim we are not engaged in hostilities in Iraq:

Several readers write to note that another reason to seek congressional authorization now is to avoid the implications of the War Powers Resolution later.  The WPR requires the administration to get approval from Congress 60 (or 90) days after “hostilities” in Iraq begin – i.e. October or November.  The administration might argue that it is not engaged in “hostilities” within the meaning of the WPR, as it did in connection with the Libya bombings.  But that claim was unpersuasive (my arguments why are here and here, but many others reached the same conclusion).  Moreover, most of the criteria in the administration’s fullest articulation of why the WPR did not apply in Libya might cut the other way in Iraq and Syria – namely, the mission is not limited, the exposure of our armed forces might not be limited, the risk of escalation is probably not limited, and the military means deployed might not be limited.  So the administration’s already-flimsy rationale for circumventing the WPR in Libya will be even harder to assert in Iraq/Syria.

In any event, come October, Congress will have to get involved.

Bobby Chesney has more on what an AUMF for ISL would look like.

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Aug 22, 2014

RBG: Roberts “Distanced Himself From the Court in the Health Care Decision”

After NFIB v. Sebelius, Jan Crawford, and others reported that the Scalia-Kennedy-Thomas-Alito bloc was incensed at the Chief Justice. So much so that they didn’t even cite his opinion. (In my book, I didn’t quite buy into this narrative, but it prevailed)

Yet, the Justices consistently said in press statements that there isn’t such anger. Justice Scalia did an interview on CNN in July 19 with Piers Morgan, where he emphatically rejected that there was a “falling out” with the Chief.

But now, Justice Ginsburg suggests otherwise. In her interview with Marcia Coyle, she notes that the Chief’s decision “distanced” himself from the Court:

NLJ: The chief justice will begin his 10th term in October. Has he changed in any way over the years here?

GINSBURG: He was always good at running our conferences. He is a little more relaxed than the old chief. He is a great representative of the court because he can give the best two-minute speech. I love it when he gives the closing remarks at the court’s musicale because I wonder what is he going to come up with and it is always something terrific. And of course, he did distance himself from the court in the health care decision. He knew he was going to take a lot of criticism from his home crowd for that and I think the same thing for the Massachusetts abortion-clinic case.

He is very smart and he writes well-written opinions.

RBG already cast Justice Sotomayor in a bad light. Here, she highlights fractures within the Court with respect to the Chief, and his NFIB dissenting colleagues. This is in very poor taste. I’m not sure what she, or the Court, stands to gain from that.

Further, RBG continues to focus on how the Court reacts to public opinion, noting that Roberts knew “he was going to take a lot of criticism from his home crowd for that,” with “for that” referring to upholding the law. The study of the impact of the media on the Chief’s decision was something I’ve written a lot about. While the Chief (wisely) has not commented, RBG seems to think this was at least something on his mind.

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Aug 22, 2014

Details on August 2014 Contraception Mandate Exemption

CMS has posted a Fact Sheet discussing the two new accommodations to the contraception mandate.

First, non-profits like Wheaton College will not have to fill out a form, but will only have to notify HHS that they object.

In August 2014, in light of the Supreme Court’s recent interim order in a case involving Wheaton College, interim final regulations were published to establish another option for an eligible organization to avail itself of the accommodation. Under the interim final regulations, an eligible organization may notify the Department of Health and Human Services (HHS) in writing of its religious objection to contraception coverage. HHS will then notify the insurer for an insured health plan, or the Department of Labor will notify the TPA for a self-insured plan, that the organization objects to providing contraception coverage and that the insurer or TPA is responsible for providing enrollees in the health plan separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

However, the fact sheet makes clear that the same duty is triggered regardless of whether a form is filled out or HHS is notified:

Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same, as discussed in this Fact Sheet. The interim final rule solicits comments but is effective on date of publication in the Federal Register.

Second, this new non-profit exemption is extended to certain for-profit entities.

Also in August 2014, in response to the Supreme Court’s recent decision, in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014), proposed rules were published that solicit comments on expanding the availability of the accommodation to include a closely held for-profit entity that has a religious objection to providing coverage for some or all contraceptive services. 

The majority opinion in Hobby Lobby went out of its way *not* to define what a closely-held corporation is, for purposes of RFRA. The proposed rule offers to alternatives, both limited to non-publicly traded companies. The first concerns the number of owners.

The proposed rules describe two alternative approaches for defining such an entity. Under one approach, the entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners. 

Or the second concerns the concentration of ownership:

The proposed rules describe two alternative approaches for defining such an entity. Under one approach, the entity could not be publicly traded, and ownership of the entity would be limited to a certain number of owners. 

Also, corporate law scholars should take an interest in how a corporation can take action to object to the mandate:

he rule also solicits comments on other possible approaches and on documentation and disclosure of a closely held for-profit entity’s decision not to provide contraceptive coverage. The proposed rules further provide that valid corporate action taken in accordance with the entity’s governing structure, in accordance with state law, stating its owners’ religious objection can serve to establish that the entity objects to providing contraceptive coverage on religious grounds. Comments on these proposed rules are being accepted for 60 days after publication in the Federal Register

As I noted in a previous post, ACLJ is already on record opposing both proposals, though I am doubtful they can raise successful RFRA arguments here.

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Aug 22, 2014

ACLJ Still Opposed To Wheaton College Contraceptive Mandate Compromise

The ACLJ put out a press release indicating that it will oppose the Administration’s new exemptions for the contraceptive mandate. Specifically, non-profits and for profits alike will not have to fill out any form, but need only notify the government they object.

On the accommodation for non-profits, ACLJ writes:

In reality it’s another slap in the face for religious based nonprofits and an affront to rationally based thinking…

Here’s HHS’s own conclusion about the affect of the new “option” for the nonprofit accommodation, “Regardless of whether the eligible organization self-certifies in accordance with the July 2013 final rules, or provides notice to HHS in accordance with the August 2014 IFR, the obligations of insurers and/or TPAs regarding providing or arranging separate payments for contraceptive services are the same . . . .”

Wait, religious nonprofits can opt out, but their insurance provider, that they have contracted with, and who they are paying to provide health insurance is required to give their employees free abortion pills?  Precisely.  Nothing changes.  You can dress it up.  You can call it what you like, but the Obama Administration is still forcing religious non-profits to provide abortion pills for their employees.

On the accommodation for for-profits, like Hobby Lobby:

What’s even worse is the Obama Administration’s second proposal.  They now want to force closely held for-profit businesses like Hobby Lobby and our numerous clients – each of which have court rulings saying they don’t have to comply with the unlawful mandate – to well … comply with the unlawful mandate under the ruse of the same “accommodation” as it has proposed for nonprofits.

I’m sure ACLJ and other groups will continue to challenge these new accommodations. But I am really, really doubtful the Court will find this proposal–which it proposed in Little Sisters and Wheaton College–to be invalid. Stay tuned.

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Aug 22, 2014

Little Sisters of the Poor v. Sebelius (Ginsburg, J., dissenting from granting of stay on behalf of Sotomayor, J., after the fact)

In her interview with Marcia Coyle, Justice Ginsburg attempted to explain why Justice Sotomayor wrote such a “blistering” dissent in Wheaton College.

NLJ: A day after the Hobby Lobbydecision, the court, with three dissents, issued an injunction against the application of the contraceptive insurance requirement to Wheaton College, a religious institution. Wheaton had objected to getting an exemption via a self-certifying letter stating its objections to the coverage. You assigned the Wheaton dissent to Justice Sotomayor as well and she wrote a blistering opinion.

GINSBURG: That may have been the same thing. She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. Besides, there was enough in my dissent in Hobby Lobby. I had said everything I wanted to say on that subject so it was appropriate for somebody else.

This response makes no sense on three levels. RBG is effectively arguing that Sotomayor didn’t mean what she said in Little Sisters of the Poor, and Wheaton College was her responsibility to tell (who, the public?) what her view was.

First, what difference does it make that she was the Circuit Justice. As the order makes clear, the injunction was “submitted to Justice Sotomayor and by her referred to the Court, the Court orders.” She didn’t act alone, as RBG would suggest. The order spoke on behalf of the Court. In contrast, in Wheaton College, where Justice Kagan was the Seventh Circuit Justice, Kagan dissented. The Court’s order begins, “The application for an injunction having been submitted to JUSTICE KAGAN and by her referred to the Court, the Court orders.” But, Kagan dissented! So this is a specious line of argument. There’s no obligation on the Circuit Justice to join an order referred to her.

Second, if RBG or Sotomayor didn’t agree with the order, then they can dissent. They can’t dissent after the fact. In a recent interview, Justice Ginsburg made an odd point–just because a Judge does not dissent from an order granting or denying a stay, doesn’t  mean the Justice actually agree with the order:

Ginsburg cautioned not to read too much into the absence of public dissent when the court rejects 11th-hour appeals to stop executions. ‘‘When a stay is denied, it doesn’t mean we are in fact unanimous,’’ she said.

If a Justice does not agree with an order, he or she dissents. Perhaps if she doesn’t agree on the merits, but doesn’t want to make a statement about it, that means she agrees with the order. Justices routinely dissent from the denial of a stay of a death penalty. But this Monday-Morning Quarterbacking from the Justice is bizarre.

Third, but really, Ginsburg isn’t opining on what she would have done. Her comment only focused on Sotomayor. She is again selling out Sotomayor, and noting that she cast a vote she didn’t believe in–apparently as she did with her Fisher vote. By saying “she wanted to make clear what her view was,” Ginsburg suggests that her views were not what she joined in Little Sisters. (I note in this post that there wasn’t much of a difference between Wheaton College and Little Sisters).

Such odd behavior from Justice Ginsburg.

In a related context, I have looked to the fact that none of the Justices have dissented from the Court’s stays of same-sex marriage decisions in Utah and Virginia as evidence that all of the Justices agree that a stay should be granted. This is not to say the Justices all agree on the merits–but they at least agree on the procedural issue. Now, I don’t even know if I can think that anymore.


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Aug 22, 2014

RBG on Sotomayor: Wrote Schuette Dissent Because “Distressed” about Press “Reports” On Fisher

One of the most jarring, and dare I say demeaning, lines in Justice Ginsburg’s interview with Marcia Coyle was not directed at any of the conservative Justices, but her own colleague on the left, Justice Sotomayor. Usually, the issue of opinion assignment is one best left for speculation. Maybe, we think a Justice asks for an assignment because he or she has a special interest, or expertise, or passion in a certain area. Or maybe an opinion was assigned to the swing vote to keep a majority together. These are the kinds of things I am most comfortable finding out years later when papers are released.

But Justice Ginsburg’s explanation for why Justice Sotomayor wrote the dissent in Schuette (which only RBG joined) was disquieting–Sotomayor was upset by press reports about her in Fisher, and wanted to show people what she really thought about affirmative action.

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did.

It was an agreement between the two of us that she would write.

Oh my. This paints Justice Sotomayor in such a negative, damaging, and weak light.

First, what does it mean that she “went along with the court.” She joined the majority opinion. That’s a vote, not passive acquiescence. Granted the opinion was narrow, but Sotomayor could have dissented or concurred if she wanted too. RBG dissented. But Sotomayor didn’t. Perhaps the Justices wanted to build consensus for a narrow opinion. But that’s a vote! Why would Ginsburg characterize her in this manner?

Later in the interview, Ginsburg also diminishes Sotomayor’s vote by noting that she didn’t actually agree her decision to grant the stay in Little Sisters of the Poor, but then doubled back in Wheaton College.

She granted the stay in Little Sisters of the Poor [raising similar objections to the letter] because she was the Tenth Circuit justice. I think it was another case where she wanted to make clear what her view was. 

(I’ll come back to this in a different post).

Second, if true, it is scary that she is so responsive to press reports, that she wants to write a vigorous dissent to set them right. Justice Scalia and Thomas go out of their way to say they don’t read press accounts of the Court. They are lambasted for being out of touch. But that’s the point. They want to be insulated. Is Sotomayor that fragile and thin-skinned that she feels compelled to write an opinion based on what the media says. I would hope that a Justice would have more fortitude than to be so easily impacted by the press. She shouldn’t have to “quell” “doubts” of the chattering class.  And here, the coverage was mild. Compared that to the full court press on the Chief in NFIB!

But you know what? It worked. Attorney General Holder, with the backing of the White House, spoke glowingly of Sotomayor’s dissent. It was the talk of the town in D.C. And the press now knows they can impact a Justice. It’s one thing for us to speculate about it. But now the Justices confirmed it.

Third, this brutus attack comes from her friend. Et Tu Ruthy?

My opinion of Sotomayor and Ginsburg was significantly weakened because of this interview. Sotomayor, for being such a pushover from the media, and Ginsburg for making an unforced error and selling out her friend.


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Aug 22, 2014

McCullen v. Coakley (Ginsburg, J., Concurring after the fact)

When McCullen v. Coakley was decided, I was somewhat surprised that Justice Ginsburg did not write separately. Though the opinion was, on its face unanimous, I agree with Justice Scalia that it was a “specious unanimity.” But, don’t worry folks. There was a Justice Ginsburg concurring opinion. You won’t find it in the U.S. Reports, or even her personal archives. You’ll find it in an interview she gave with Marcia Coyle. You see, Justice Ginsburg concurred after the fact to stress that the key factor was that the regulation was “content neutral.”

NLJ: You have called the decision striking down the abortion-clinic buffer-zone law in Massachusetts a “good decision,” which you joined. Why did you join the chief justice’s opinion?

GINSBURG:It made a very important case that protests before abortion clinics, that regulation of those protests are content-neutral. That was the most important thing to me about the chief’s decision. The problem didn’t exist for hospitals, in general. The problem existed for one kind of place, and the legislation was aimed at ensuring access. Where Massachusetts went wrong was it went much further than necessary.

My initial view was this is permissible legislation but if you looked at the record, it was so sparse. I think at four of the clinics they had no evidence of any kind of disturbance. Then the video that they showed compared to the demonstrations that have occurred elsewhere, these were rather mild. It wasn’t necessary to have that 35-foot zone. And I think Massachusetts has gone back and changed it.

This would be the kind of statement we would find in a concurring opinion. We didn’t get that in court, but we find it after the fact.

RBG also offered these concurring thoughts on Noel Canning:

NLJ: The buffer-zone decision was unanimous in the judgment, but not in the opinion. Justice Antonin Scalia wrote a concurrence that was more of a dissent and he accused the court of “specious unanimity.” That case and the decision in the recess appointments clause challenge—also unanimous in the bottom-line judgment, but not in the opinion—gave rise to claims of “fauxnanimity.” Were they “specious” unanimous decisions?

GINSBURG: If the notion was the court was trying to appear unanimous when it wasn’t, that is not true. In Noel Canning [ the recess-appointments case], the court could not have disagreed more sharply on what is a recess that counts and could a vacancy occur before a recess. But when dealing with rules that Congress sets for the way it operates, the court has always been deferent to that. So I wouldn’t use the word ‘specious.’

I think some of the reports about Noel Canning, some of the headlines—’Court rejects Obama’s nominees—they missed what was really important about Noel Canning. The administration prevailed on the first two questions. It reminded me of when [news reports] decided Souter and Breyer were with the court in Bush v. Gore.

A Justice’s vote should speak for itself. I don’t like this ex post rationalization.

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Aug 22, 2014

Ginsburg on Federalism and Liberty in Windsor

Marcia Coyle also posed an excellent question for RBG about the role federalism plays in Windsor–basically none, she argues.

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity.

I would take exception with RBG’s claim that Lawrence and Romer were not federalism cases. They were, in a very Kennedy-esque way. In Romer, Kennedy stressed how no other state had ever attempted such an unprecedented restriction on liberty. In Lawrence, Kennedy made a very big deal about how states in recent years had eliminated bans on sodomy–here states were conferring liberty on their people. He made a similar move in Windsor, citing the (few) states that had granted people the right to same-sex marriage, as evidence of more conferring of liberty. Here, he views states as the fount for liberty and freedom. It is in this way that federalism promotes freedom. The source of “equal dignity” is the states. This is a point that most people missed from Windsor. I know RBG didn’t buy that part of Windsor, but she did join it.

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Aug 22, 2014

Greenhouse: The “Failed Commerce Clause attack” On Obamacare. Failed?

I recently contributed to a symposium issue in the Illinois Law Review, led by Professor David Hyman, asking why law professors “misunderestimated” the challenge to Obamacare. One of the threads several of the authors hit on, was how many law professors–mostly on the left– were shocked and stunned that the constitutional challenge to Obamacare went anywhere. To this day, many insist that the commerce clause argument was a joke, and had no validity. Although, most would at least acknowledge, at least begrudgingly, that a majority of the Supreme Court accepted that argument.

Not Linda Greenhouse.

But stay with me, because this latest round, catapulted onto the Supreme Court’s docket earlier this month by the same forces that brought us the failed Commerce Clause attack two years ago, opens a window on raw judicial politics so extreme that the saga so far would be funny if the potential consequences weren’t so serious.

The Commerce Clause challenge didn’t fail. It succeeded. Five Justices accepted it. And, the government was absolutely incapable of articulating a limiting principle on the commerce clause (though as I discuss in my book, this was a deliberate choice on the part of the SG).

I would usually not pounce on an error like this, but there is a special history with Greenhouse and the challenge to the ACA, which I discuss in Unprecedented, and my Illinois article. Throughout the entire debate, Greenhouse expressed a never-ceasing sense of shock and awe that this challenge even went anywhere. She even charged her successor at the Times, Adam Liptak with promoting a “false equivalency,” in covering the case.

Here is a segment from my article:

Linda Greenhouse, the Pulitzer Prize-winning reporter who covered the Supreme Court for the Times from 1978 to 2007, was not pleased with the coverage of the case in the paper of record. Greenhouse, who now writes in the Times opinion section and lectures at Yale Law School, appeared on a panel titled “Journalism and the Constitution outside the Courts,” along with Emily Bazelon (Slate), Charlie Savage (the New York Times), and Adam Liptak (the New York Times). Liptak was Greenhouse’s successor for the Supreme Court beat at the Times. Greenhouse asserted that Liptak and others at the Times, by giving the challengers so much attention, created a “false equivalency.” She claimed that Liptak validated Barnett and his frivolous ideas. Many oth- er professors in attendance shared this concern.

Liptak emphatically rejected Greenhouse’s “false equivalence” al- legation. At the conference, he quipped, “Do I sense some hostility?” Later, Liptak would tell me that he was “taken aback by what I per- ceived to be harsh and heartfelt criticism from people I respect at my alma mater” (Yale Law School). He added that at the conference “[t]here was something like a consensus that the press in general and perhaps The New York Times in particular had fallen down on the job by unduly dig- nifying the arguments in support of the Commerce Clause challenge to the Affordable Care Act.” Liptak, however, felt that he had “pre- sent[ed] both sides of the argument.” Courts are a “poor place to make the ‘false equivalency’ criticism,” Liptak explained. “The critique is weaker still when the arguments on one side were made by a majority of the states and had divided the lower courts.”

Legal arguments, however strong the political backing, only go anywhere because the argument has the power of persuasion. The uphill climb in NFIB was strong, as the challengers had to thread a needle between existing commerce clause precedents. But they did it!

In comparison, Halbig is much easier–the text is there. Now, there are lots of things beyond the text (purpose, structure, effects, etc.), which I won’t get into here, but this is an argument that should, and has been taken seriously.

On the point of Halbig, Greenhouse makes another misstatement in her column. She writes that all three judges on the 4th Circuit agreed that the statute, on its face, treats state exchanges in the same fashion as federal exchanges.

Section 1321(c) provides that if a state fails to establish an exchange, the secretary of Health and Human Services shall “establish and operate such Exchange within the state and the Secretary shall take such actions as are necessary to implement such other requirements.” The words “such Exchange,” the government argues, mean that the federal government stands in the state’s shoes when it complies with this instruction; for these purposes, the federal government is the state.

That interpretation “makes sense,” all three members of a three-judge panel of the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., concluded in King v. Burwell, a decision that, by an amazing coincidence of timing, was issued the same day, July 22, as the contrary D.C. Circuit opinion. Those three judges, Roger L. Gregory, Stephanie D. Thacker and Andre M. Davis, examined the statute as a whole, in light of its purpose, and at the end of the day found the federal-state issue to be ambiguous. That’s all they needed to find for the government to win the case.

This isn’t  exactly right. Judges Gregory and Thacker found the statute ambiguous, and resolved the issue on Chevron Step 2, where the government gets the utmost deference. Only Judge Davis found the statute was unambiguous, and resolved it in favor of the government on Chevron Step 1. For that matter, all three judges in Halbig on the D.C. Circuit did not find the statute worked for the government on its face. Judge Edwards also turned to Chevron Step 2. In this post, I count the votes. 5 out of 6 judges agreed the statute is ambiguous, and does not clearly provide for the tax credits. Three judges had to rely on the uber-deferential Chevron Step 2 to resolve the issue.


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Aug 22, 2014

RBG On Hobby Lobby: “Access to Birth Control” v. “Cost-Free Access to Birth Control”

One of the largest obfuscations in the Hobby Lobby debate, which RBG has contributed to, is that the majority opinion rejected the idea that “access to Birth Control” is a compelling interest. This is technically correct, but let’s be precise what “access” means. We aren’t talking here about reversing Griswold, and placing “legal” blocks in the place of access to birth control or other fundamental rights. Or, to put in terms of Casey, there is no “undue burden.”

Justice Alito’s opinion in Hobby Lobby made this point clearly.

Under our cases, women (and men) have a constitutional right to obtain contraceptives, see Griswold v.Connecticut, 381 U. S. 479, 485-486 (1965), and HHS tells us that “[s]tudies have demonstrated that even moderate copayments for preventive services can deter patients from receiving those services.” Brief for HHS in No. 13-354, at 50 (internal quotation marks omitted).

What was at issue is not “access” to birth control, but “cost-free access.” That is employees won’t have to pay additional fees for it.

We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA, and we will proceed to consider the final prong of the RFRA test, i.e., whether HHS has shown that the contraceptive mandate is “the least restrictive means of furthering that compelling governmental interest.” §2000bb-1(b)(2).

There is a world of legal difference between “access,” which wasn’t at issue, and “cost-free access,” which the court addressed.  The former constitutes a legal block, and the former is a financial block. Now, I’m sure you can argue that making women pay for birth control is unfair, and fewer women will use it if it is expensive–there are countless findings in the law to this effect. That’s all correct.

But many opponents of Hobby Lobby are deliberately loose with their language, and attempt to give the impression that the Hobby Lobby majority thought that legal access to birth control was not a compelling interest. This is wrong, and a deliberate obfsucation of the facts.

Leading that obscurity is Justice Ginsburg, in her answer to Marcia Coyle’s direct question:

NLJ: In the Hobby Lobby decision, which was written by Justice Samuel Alito Jr., he analyzed whether, under the Religious Freedom Restoration Act, the government had a compelling interest in the contraceptive requirement and had used the least restrictive means to achieve it. But instead of finding or not finding a compelling interest, he simply said he would “assume” the government had such an interest. Should women take comfort in that assumption?

GINSBURG: They should not. They should be very worried about it because he should have said, “Of course there is a compelling interest in making sure women have access to birth control.” They should be very worried about that.

The use of the passive voice, “making sure women have access,” renders unclear who is preventing them from having it in the first place–the government, or the employer. The answer is neither. The case concerned “cost-free access.” I would generally be willing to give the Justice the benefit of the doubt, but her previous comments to Katie Couric make clear that she is feeding into the War on Women meme as the Notorious RBG, and displaying massive amounts of hubris, in her efforts to impact popular opinion outside the Court.

It is to be expected that pundits make such opaque generalizations, but I would expect more from a Justice

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Aug 22, 2014

RBG on Republicans and Campaign Finance Law

Kudos to Marica Coyle, who conducted a brilliant interview with Justice Ginsburg. The mark of a great interview of a Justice is learning new stuff. And, I learned a lot of new stuff. Alas, what I learned does not help my of-late decreasing opinion of Justice Ginsburg. I recently noted that Justice Stevens has been quite quiet since his book launch faded, so RBG seems to have taken up the mantle. Many of her comments border on inappropriate, as they can be seen as direct attacks on her colleagues. Some may think this is healthy, and the Justices should be open about these types of internal deliberations. I don’t. It will take me a few posts to go through all of her comments. I’ll go in sequential order.

First, here is a Q&A concerning the Court’s reputation, and campaign finance law:

NLJ: You have said that you and your colleagues are most concerned that the Supreme Court not be viewed as a political institution. Recent polls show declining disregard for the high court and strong feelings that the justices apply their political beliefs, not the law, to the cases before them. What do you think is behind those reactions?

GINSBURG: I think it’s the spillover effect from the dismay about our dysfunctional Congress. Whatever the polls say about the court, we stand much, much higher than either of the other two branches. I think people are disillusioned with our government’s inability to work and that spills over to the court because we are part of the government.

One of the problems is that redistricting has led to safe seats for one party or the other. Still I think the biggest mistake this court made is in campaign finance, which Justice [Sandra Day] O’Connor could have saved us from. She left. Justices O’Connor, [John Paul] Stevens and [David] Souter (who supported campaign finance regulations) were Republican voters from the time they could vote and came from families that were always Republican. It should be increasingly clear how [money] is corrupting our system, and it is spreading in states that elect their judges. 

I think the first part of her answer is unobjectionable–though a good question is whether the Court should take notice of that dysfunction when interpreting the byproduct of a gridlocked, intractable Congress.

The second paragraph potentially worries me. Justice O’Connor has said as much, that she would not have voted with the Citizens United majority. But what’s the salience that O’Connor, Stevens, and Souter “were Republican voters.” Is she trying to say this is is a bipartisan issue? In truth, Souter and Stevens were consistently liberal voters, so at this point, their Republican voting status is almost immaterial (they claim the party left them–whatever). But, when read in context with the next sentence, I get worried. Is she insinuating in any way a link between Republicans and money corrupting the system. There is an abrupt jump between saying that those Justices were former Republicans, and then saying that money is corrupting the system. I can’t help but think, in her mind at least, there is some implicit connection.

Also, a point that may have been made elsewhere, recently dawned on me. The Justice sit in review of judgments from state judges, who apparently are being “corrupt[ed]” by money. Does RBG realize she is targeting the integrity of the very state judges she sits in review of? I think it is probably inappropriate for Justice O’Connor to do all the things she has done (robocalls and all), but for a sitting Justice, who sits in review of state judges, to say these things, is very disquieting. What does RBG think when she gets a cert petition from Texas, where all Justices sit for election? Is there an implicit bias that these judgments, perhaps with a corporate defendant, were the product of “corruption” from money?

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Aug 22, 2014

“Report from Nuremberg: The International War Crimes Trial”

I recently finished listening to “Report from Nuremberg: The International War Crimes Trial.” This audiobook re-enacts the transcribed radio broadcasts on the Armed Forces Network during the Nuremberg Trials in 1945-46. Rather than reading a history of Nuremberg, this recording recreates the contemporaneous daily broadcasts from the Palace of Justice in Nuremberg.

There are some fascinating insights into how the trial proceeded, how the Nazis behaved out of court, and what the service members thought about the Nazis (they should be taken out back and shot).

As a special treat, the host does an interview with “Mr. Justice Jackson.” Jackson does a wonderful job explaining why the rule of law demands a trial for these war criminals, and why this should be a sterling example to the world of how democracy works. Although, the host of the broadcast was not a fan of Justice Jackson’s cross-examination of Hermann Goring, the leader of the Nazi Party. He later said that Jackson lacked enough knowledge about European history to corner Goring. The British prosecutor apparently did much better.

It’s about 6 hours long, and is well worth a listen.

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