Jan 18, 2015

“Supreme Ambition” SCOTUS Short List

In David Lat’s charming and engaging new novel “Supreme Ambition,” (I strongly recommend it!), there is a vacancy on the Supreme Court. Several of the law clerks in the novel gossip about possible Republican nominations to fill the seat of the now-deceased Justice Scalia clone, “Justice Keegan.” All of these names are not-too-veiled references to actual Circuit Judges, who would be on any short-list in a future Republican administration.

From the 8th Circuit, Judge Steven M. Colloton:

“Well, among judges, Steve Collins of the Eighth Circuit is getting buzz,” I said. “People like that he’s from the midwest rather than the Acela corridor. Joan Biskupic and Tony Mauro think he has the edge.”

From the 6th Circuit, Judges Jeffrey Sutton and Raymond Kethledge, and from the 10th Circuit, Neal Gorsuch:

“He’s well regarded,” said Amit, “but young. The same goes for Jeff Stuart and Ray Kelton on the Sixth Circuit, and Neal Gosford on the Tenth Circuit. Brilliant former SCOTUS clerks who come from flyover country— coastal qualifications, heartland appeal. But they need more judicial experience. LaFount might want to save them for later— like when Hannah Greenberg’s seat opens up. At least that’s what Jan Crawford thinks, and she has very good sources in conservative circles.”

From the D.C. Circuit, Judges Janice Rogers Brown and Brett Kavanaugh,

“Her sources say Rashida Williams of the D.C. Circuit,” I said. “Currently on the most prestigious circuit court, previously on the California Supreme Court. Smart, African American, a woman …” “And unconfirmable,” Amit said. “I agree with Jeff Toobin: put a typewriter in front of her and she turns into a loose cannon. Hard-core libertarians support Williams because of all these speeches and articles of hers criticizing the New Deal, but there’s no way she gets past the Senate. If a D.C. Circuit judge gets it, Brent Kirkpatrick is most likely.”

From the 5th Circuit, Judge Edward Prado:

“How about that Latino judge in the Fifth Circuit?” asked James. “He’s on a lot of the shortlists.” “Ramon Guerrero,” Amit said . . . “And they have a lot of sway on judicial issues.” “The hard right might care if Guerrero were out, but he’s not,” Amit said. “His main problems are that he’s a little old and he has some random dissents and concurrences in his past— affirmative action, abortion— that could come back to haunt him.”

From the 9th Circuit, of course, the inestimable Judge Frank Polanksi, I mean Alex Kozinski (9th Circuit):

“What about Judge Polanski? Could he get it over our boss?” I asked. …. “He has some advantages,” Amit said. “He’s more brilliant than the judge. He has the Polanski Mafia working behind the scenes for him— they’re at the White House counsel’s office, and the Senate Judiciary Committee, and the Office of Legal Policy at the DOJ. But he has disadvantages too. Some people view him as less predictable than Stinson, less consistently conservative— occasionally he ‘libs out’ on some issue he gets a bee in his bonnet over. We know how unreliable he can be when it comes to en banc votes.” “Judge Polanski is conservative but principled,” I said. “He ‘libs out’ when he feels the law requires a liberal result.” “Presidents prefer predictable over principled in SCOTUS nominees,” said Amit. “And Polanski’s a white male, which doesn’t help.” “

As a partial spoiler, one of these fictional judges is appointed to the Supreme Court.

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Jan 17, 2015

Rand Paul’s Arc of Judicial Restraint and Activism

There are different ways to teach Constitutional Law. Some teach it by doctrine. First you cover all of the congressional powers, then you cover all the executive powers, then you move onto the 14th amendment, then you do the Bill of Rights, etc. Because I only have four hours to teach all of ConLaw, this is the only way to cover everything in a meaningful way.

An alternative, and in my mind better approach given more hours, is to teach constitutional law chronologically. (I once tried to rank the top 300 cases of all time by year, and did a lecture where I ran students through all of these cases in two hours). Start with the Marshall Court, work through the Taney Court leading up to the Civil War, handle the post-Civil War cases as the Court grapples with the 14th Amendment, go through the late 19th century as the industrial revolution classes with society, chart the rise of the Progressive era in the early 20th century as the state police power grew, discuss the cases leading up to, during, and after the New Deal, followed by the Warren Court’s focus against segregation, criminal procedure cases, as well as sexual autonomy, into the Burger Court’s ratcheting back of some of that, followed by the Federalism focus on the Rehnquist Court, leading into the Roberts Court. (Randy Barnett’s ConLaw textbook, among others, does this very well).

Moving chronologically allows you to trace certain arcs across the law–the Supreme Court’s cases are not rendered in isolation but as part of a story of our national history. I try to do this in my class, and test this by making one of my exam questions situated in the past, and asking the students how a Court at a given point in time, only with precedents that came before that year, would resolve the issue (for example, how would the New Deal Court handle Obamacare).

Tracing these arcs allows you to isolate and analyze an issue in very different contexts. A perfect example of this is the (to oversimplify) debate between activism and restraint. Generally speaking, people label a decision activist if they disagree with the ruling. But, when viewed across time, the dynamics are hard to pin down.

In a recent speech at the Heritage Foundation, Senator Rand Paul traced just such an arc. Much of the commentary about this speech has been based on a few sound bites about whether activism or restraint is a better judicial philosophy. But the importance of Paul’s speech wasn’t the label–“I’m a judicial activist”–but the perspective. This is something many legal scholars, let alone Senators, lack.

Paul’s speech explored the notions of judicial restraint and activism (or what I, and my friends at IJ would call “engagement”) through six cases: Plessy v. Ferguson, Lochner, Brown v. Board of Education, Griswold v. Connecticut, Roe v. Wade, and NFIB v. Sebelius. Paul explains that a common thread runs through each case:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise.

He traces this thinking back to the King of the Progressives, Holmes:

That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?

Plessy, and decisions upholding Jim Crow also cited majority rule:

But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important. … . I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.

The FDR Court employed restraint:

We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”

Same for Roberts in NFIB:

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority . . . In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.

But in cases where liberty prevailed, the Justices were activist.

We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.

So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.

Brown v. Board of Education, activism prevails.

Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.

Paul favorably cites Griswold, even though he respects states rights.

Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?

Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.

(I should note that Paul was apparently reviewing Presidential debates. Take that for what it’s worth).

Paul also tackles Roe in something of a libertarian approach, short of saying it is a horribly wrong decision.

Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.

However not all decisions should defer to the majority. Some courts should apply a presumption of liberty, rather than a presumption of constitutionality. For this Rand cites Randy:

If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.

Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.

I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.

[one person clapping ]

Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?

The presumption of liberty is not unrebuttable. But it puts a thumb on the scale of the individual, over that of the state.

Paul also effectively rebuts the caricature of libertarian theory–that we want no government, and states can do whatever they want. By citing my friend Timothy Sandefur’s excellent new book, Paul explains why John C. Calhoun did not fit in with the notion of courts acting to preserve liberty.

What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.

There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.

Paul’s parting comments about the separation of powers ring very true. As Madison wrote in Federalist No. 51, Ambition must be made to check Ambition.

Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.

However, Congress has failed to check the President, and has ceded far too much power to the Executive, especially when the President is of the same party as the majority in Congress.

Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.

Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.

Paul concludes that his goal is to prevent “too much power from gravitating to one person or body.”

And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.

While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.

I couldn’t agree more. I hope he stays true to these words.

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Jan 16, 2015

Who broke the Same-Sex Marriage News?

First place goes to Pete Williams of NBC News, for tweeting the news at 3:30.

Second place, by a few seconds, at 3:31 goes to Kimberly Robinson of Bloomberg BNA.

Third place, a moment later was Greg Stohr of Bloomberg.

Initially I gave the victory to Kimberly, as Pete didn’t use the correct hashtag #SCOTUS, so his tweet got lost in my timeline. Kimberly gracious confessed that she wasn’t first. I think we all need to agree to use the #SCOTUS hashtag to break news.   first-place Bloomberg was the first to correctly announce the outcome of NFIB v. Sebelius. If I recall, Pete Williams (wisely) hedged for a few moments while he was on the air, as did Jan Crawford. Update: Honorable mention goes to Chris Geidner of Buzzfeed, who tweeted at 3:31 with a story link.

Update: Here is the second-by-second timeline for 3:31, with #SCOTUS (If you didn’t use that tag you are lost to history). (1) Kimberly Robinson, (2) Greg Stohr, (3) Sara Kopit, (4) Me retweeting Kimberly, (5) Michelle Olsen, (6) Brent Kendall, (7) Chris Geidner, (8) Freedom To Marry.

scotus-hash

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Jan 16, 2015

Predict Obergefell v. Hodges (A/K/A Same-Sex Marriage Cases) on FantasySCOTUS

By dint of first docket number, this case will–for the time being at least–be called as Obergefell v. Hodges. Make your predictions at FantasySCOTUS for question #1 (granting licenses) and question #2 (recognition of out-of-state marriages). Now, who gets to argue it? With 90 minutes on the first question, and 60 minutes on the second, there is more than enough time to go around. And when do we get the SG asking to intervene.

scotus-order

 

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Jan 16, 2015

Transcript of Senator Rand Paul’s Comments on Judicial Restraint and Activism at Heritage Action Conservative Policy Summit

Here is my unofficial transcript, largely based on the C-SPAN closed captions, of Senator Paul’s remarks at Heritage about judicial activism and restraint. I’ll offer my comments in another post. I should flag that Senator Paul mentioned the works of Timothy Sandefur and Randy Barnett in his remarks.

I’d like to make it a little more interactive. We’re going to poll the crowd to begin with. Media and cameramen may participate also. Who in the crowd thinks judicial restraint is a great philosophy versus judicial activism? Who in the crowd thinks legal philosophy would be judicial restraint?

[All hands go up]

This is going to be a tough sell. How many think judicial activism is the way to go and that is really what we should have as an activist court?

[No hands go up].

Nobody.

This is really going to be a tough sell. Do you know why justice Roberts did not strike down Obamacare? Judicial restraint. So I guess everybody here is for Obamacare—thinks the court should should stay the heck out and Obamacare is just fine because the majority wants it. And that’s what justice Roberts said. We should not get in the way of the majority.

Do you know where that comes from? That comes from Oliver Wendell Holmes, the great Progressive when he dissents in the Lochner case. What does he say?

He says the Court has no business getting in the way to what the majority will is. We should leave it up to the majority. So if you are for judicial restraint, I guess then what happens when a legislature does bad things?

What happens when a legislature says, well, we’re going to pass Jim Crow through the 19th century, most of the 20th century. Should we have an activist court that comes in and overturns that?

I won’t bore you with slides but we have one side. Where is it going to be? I can’t see it. That’s not going to help me any.

[Powerpoint didn’t work]

We have a time line. We go back and start in 1905 with Lochner and go through the way through Obamacare. The question is, in each of the case who should conservatives be for is the question: restraint or activist. We go back to Lochner. In the Lochner case the question is whether state legislatures were becoming more progressive and they were restricting the right or the liberty of contract.

So what happened is you had an activist court in the Lochner case that rules 5-4 says states can’t interfere with the right to contract. So the question is whether you are for activism or restraint when it is with regard to state governments interfering with the liberty to contract.

We move on a little bit later and we get into the New Deal. Here it is not state but the federal governments. They are passing all kinds of laws, assuming new powers that weren’t essentially in the Constitution. So you once against have an activist court in the beginning until FDR got his way, you have an activist conservative court who overturns federal laws one after another. And until finally a majority of the FDR appointees who say “oh no judicial restraint is the way to go.”

Then you move on longer and you come out of the depression and you go into the time where we are looking at the Brown v. the Board, the institutionalized racism or separation or segregation.

What is the position of judicial restraint? The position of judicial restraint says let the states do whatever they want? Is that the conservative position? I think it’s not my position. I think if the states do wrong, that we should overturn them. That there is a role for the Supreme Court to mete out justice. The 14th amendment gives the Supreme Court, it gives the federal government a role in saying the states can’t do certain things.

There is a book called the Conscience of the Constitution by Timothy Sandefur, which I think is a great book, because he talks about it if we were to say, well gosh if we just believe in states rights, federal government has no role in the states, well could you be basically in favor of what John Calhoun said. John Calhoun not only supported slavery, John Calhoun supported sort of a tyranny of a state government. He thought state government could do anything it wants. Is that the liberty position? Is that the conservative, limited government position that we believe so much in a small federal government that there is no role nationally to say to a state government they can’t say certain things.

So when it comes to Brown, I’m not a judicial restraint guy either. I’m a judicial activist when it comes to Lochner. I’m a judicial activist when it comes to the New Deal. But I’m also a judicial activist when it comes to Brown. I think the federal government was right to overturn state governments that were saying separate but equal is fine. Plessey v. Ferguson is a mistake. Plessy v. Ferguson is judicial restraint. So when we get to Brown I’m an activist.

Then we go to the next one. What is the big bugaboo when we talk about activism versus restraint? It is Griswold [v. Connecticut]. And you- say why are we even having this discussion. Does any of this have anything to do with the politics or current events?

Does anyone remember George Stephanopoulos’s question in presidential debate last time. He asked them all about Griswold. A lot of people didn’t know what Griswold was about, probably. But it had to do with birth control. State government said you can’t sell birth control to women. So if you are a state’s rights person you say I guess hands off. If you believe in judicial restraint, you are like let the states do what they want. That is a state right. Or you might say well individuals have rights also and states can’t tread upon individual rights? And then you might say, well maybe I am for Griswold and I am for overturning the state says you can’t have birth control. And so there’s a question again—are you an activist or restraint.

Some say Griswold led to Roe, I guess you’re for Roe also. But in Roe, you have a competition of rights, you have a competition of rights between a mother and a child. So it is a little different than just whether or not you are restricting someone’s liberty. Because I think there are two individuals involved. The other side would say there’s not. But I don’t think the Roe is as clear cut as far as restraint or activism.

Why is this pertinent?

Because we move all the way up to Obamacare. When we get to Obamacare, whether he believes it or not I don’t know. But Justice Roberts laid down the gauntlet and said judicial restraint is why the majority can do whatever they want. Not only, he basically said if there are two equal arguments for whether it’s constitutional or unconstitutional, whether it’s a tax or a penalty, we just have to accept that the presumption is of constitutionality.

This kind of gets back to this idea of restraint. If we believe in judicial restraint we presume the majority is correct. We presume that laws are constitutional until we can prove otherwise. Now there is a school of thought that thinks differently.

Randy Barnett writes about something of this. He talks about the presumption of liberty, that maybe we should start with the presumption of liberty.

I liken it to sort of saying well maybe we should be presumed innocent until found guilty. Maybe we should be presumed to be free until we are restricted.

[one person clapping ]

Yes, I’ve got one convert! Yes! My point is not to convert you from judicial restraint to judicial activism but to think about it. I think it is not as simple as we make it sound. We say we don’t want judges writing laws. I don’t want them writing laws either, but do I want judges to protect my freedom, do I want judges to take an activist role in preserving liberty? Do I want them to presume liberty and put the burden on the government to prove constitutionality?

I think this is important and becomes so with regard to Obamacare. In that, basically Justice Roberts says it is not his role to replace the majority will. Some of you might say I’m still for judicial restraint. I don’t care about any of these cases. We just need a better majority. That is an argument.

But the question has to come also if you don’t have a better majority. If you have a Jim Crow majority in the south, does the court have a role in overturning something where a person’s individual rights are at stake? I think they do. I think it’s an important debate because ultimately ideas are important.

I think it was Victor Hugo who said ideas are really more important than a strong army. ideas are the presupposition behind that precede all of this and empower all of us. I think whatever kind of government we want, what kind of role the judiciary has, it is important to decide and examine ourselves whether we are for the restraint or activism with regard to the court.

Another constitutional question we have is on the separation of powers and I think this is an equally important question. It is legislative question and possibly a judicial question as well. There is a Professor from Tufts who wrote recently and he said the separation — there is an equilibrium that is supposed to be there between the different powers, between the different branches, but we’re having a collapse of the separation of powers. We’re having a collapse of this equilibrium. Our Founding Fathers [James Madison in Federalist No. 51] talked about there being sort of an ambition that we would pit one ambition against another. An ambition for the legislature should be an ambition that is pitted against the ambition of the presidency. The hope was — and many times in our history this ambition was I think beyond party label.

Unfortunately I think now things are so partisan that if it is a Democrat president usurping authority all Democrats will support them. But if it is a Republican president usurping and taking on too much executive power, all Republicans will support him.

Instead of what our founding fathers intended was, that Congress would object to having its power taken away by the executive branch, and these ambitions would be pitted back and forth the ambitions, and those ambitions would push us forward towards more of an equilibrium.

It isn’t just on immigration the president has usurped and recreated and brought on the executive branch power that is not there. It is also in Obamacare, amending the rules. We are going to have another ruling in the Supreme Court coming up.

But it is also on the power of war. The power to declare war was absolutely and without question given to the legislature. We’ve been at war now for five months and no vote in congress. So before Christmas I decided I would declare. And I decided I would declare war on a water bill.

And people are like why is he trying to declare war on a water bill? I say well it is my only avenue for having any power around here. I’m not chairman of the committee. I don’t get to decide the agenda. They have been working on this for six years. And as Jim [DeMint] will attest to, they will get pretty annoyed if you amend something they are trying to do it.

So I amended it with the declaration of the war against ISIS. I think they are a threat to our embassy Baghdad and the consulate in Erbil. And they are a threat to Americans, by killing Americans frankly. And there should be a debate. The president shouldn’t do this alone. So these debates have to go on.

And for me I think more important than belonging to one particular party or another is the ideas of the Constitution and how the whole goal of the Constitution was in limiting power and trying to not let too much power gravitate to one body or one person.

While I’m here in Washington, in the future as long as I’m here that will be my overriding goal is to try to limit power and to keep too much power from gravitating to one person or body. And I think this is above and beyond all partisan politics. And I will continue as long as I’m given that privilege. Thank you very much.

[ applause ]

And I would ask people to raise hands if I converted you from restraint to activism but I’m afraid to.

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Jan 15, 2015

Video: The Declaration of Independence, The Articles of Confederation, and the Constitution in 2 Hours

For my first constitutional law class, I provide a foundation our entire system of government by walking through the text of the Declaration of Independence, the Articles of Confederation, and the Constitution. I cover every section of the United States, and almost all of the clauses. It is a lot of material in two hours, but it is probably my favorite class of the year. Enjoy! And, as tradition, I give every student a Pocket Constitution on the condition that they bring it to every class!

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Jan 15, 2015

ConLaw Class 1 – Our Founding Documents

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

Our Founding Documents

Note: Read these documents in their entirety. They’re not long. And no one should graduate law school without reading them at least once.

This is the Declaration of Independence (July 4, 1776).

declaration_of_independence_630

This is the first page of the Articles of Confederation (Ratified in 1781).

articles-of-confederation-granger

These are the four pages of the Constitution of the United States of America. The Constitution was proposed on September 17, 1787, and ratified on June 21, 1788 with the ratification of New Hampshire, the 9th State to join the Union.

constitution_1_of_4_630 constitution_2_of_4_630 constitution_3_of_4_630 constitution_4_of_4_630

These are the first Ten Amendments to the Constitution, proposed in 1789 and ratified in 1791 (the phrase “The Bill of Rights” only came into common parlance following the Civil War).


bill_of_rights_630

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Jan 14, 2015

DAPA on Trial – Texas v. United Hearing for a Preliminary Injunction on Thursday

Tomorrow, the U.S. District Court for the Southern District of Texas in Brownsville will hold a hearing about whether to issue a preliminary injunction halting President Obama’s Deferred Action for Parental Accountability (“DAPA”). Only two month ago, the President announced DAPA. Since then, I have spent a considerable amount of time studying and thinking about immigration law, prosecutorial discretion, and executive power.

During that time, I’ve found that much of the discussion about this policy has been premised on a superficial reading of immigration law, over-broad notions of prosecutorial discretion, and an unduly deferential vision of executive power. A large culprit in this thinking has been the OLC Opinion, which was in places misleading, and even disingenuous about the interaction Congress and the President with respect to deferred action. It even fooled me, at first.

With two articles, and an amicus brief, I aim to challenge that conventional wisdom.

First, “The Constitutionality of DAPA Part I: Congressional Acquiescence to Deferred Action” will be published in the Georgetown Law Journal Online. As I discuss in this post, Congress simply has not acquiesced to the scope of deferred action the President asserts with DAPA. It isn’t even close, and OLC misstates history to the contrary.

Second, I just posted to SSRN the second part in this series, “The Constitutionality of DAPA Part II: Faithfully Executing the Law.” As I explain in this post, the President has not complied with his constitutional duty to faithfully execute the laws.

Third, in an amicus brief I joined with the Cato Institute, we argue that the District Court should enter a preliminary injunction in favor of Texas, in light of the fact that Congress has not acquiesced to DAPA.

All of the filings in this case are available here.

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Jan 14, 2015

New Article: “The Constitutionality of DAPA Part II: Faithfully Executing the Law”

I have now posted the second part in my series on the Constitutionality of Deferred Action for Parental Accountability. Part I considered whether Congress has acquiesced to the scope of deferred action in DAPA–it has not. Part II addresses whether the President has complied with his duty under the “Take Clare” clause. He has not. Here is the abstract:

Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress. Fourth, in executing the laws with care, the President must act in good “faith.” A careful examination of the four elements of the “Take Care” clause provides a comprehensive framework to determine whether the Executive has complied with his constitutional duty. This article assesses the constitutionality of President Obama’s “Deferred Action for Parental Accountability” (DAPA) on immigration through this lens of the “Take Care” clause.

First, DAPA is an extremely “broad policy” that was “consciously and expressly adopted” not as a means to enforce the laws of Congress, but to exempt nearly 40% of undocumented aliens in the United States-even those who were not previously subject to any previous enforcement action-from the threat of removal, and to provide them with work authorization. Second, DAPA was implemented without “care” for the immigration laws as it displaced officer discretion, both procedurally and substantively, with the Secretary’s blanket policy to turn meaningful review into a “rubber stamp.”

Third, DAPA finds refuge in none of the three tiers identified in Justice Jackson’s opinion Youngstown. Congress has and continues to oppose the scope of this executive action. Further, DAPA is not consonant with long-standing congressional policy towards deferred action. Previous uses were typically ancillary to statutory grants of lawful status or responsive to extraordinary equities on a very limited scale. In this bottom rung of authority, presidential power is at its “lowest ebb,” unentitled to a presumption of constitutionality. Fourth DAPA was not a good faith mistake of law, but a bad faith deliberate deviation. Implementing executive action to achieve several of the key statutory goals of laws Congress voted against reflects a deliberate attempt to circumnavigate around an uncooperative legislature. Exacerbating this conclusion is the fact that prior to the defeats of DACA and DAPA, the “sole organ” of the Executive Branch consistently stated that he lacked the power to defer the deportations of millions by himself.

This pattern of behavior amounts to a deliberate effort to act not in good faith, but in an effort to undermine the Laws of Congress. The duty under Article II has been violated.

I will have a lot more to say about this topic later. For now, I’ll make clear that a lot of the conventional wisdom of this case has been based on a superficial understanding of immigration law and prosecutorial discretion.

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Jan 14, 2015

Roberts: Zoning Board “Is Not the Star Chamber”

The Chief Justice’s dissent in  T-Mobile South, LLC v. City of Roswell had this gem for land-use and legal history wonks:

This concern might have force if towns routinely made these decisions in secret, closed-door proceedings, or if applicants were unsophisticated actors. But the local zoning board or town council is not the Star Chamber, and a telecommunications company is no babe in the legal woods.

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Jan 14, 2015

Scalia Assigns Opinion to Sotomayor. Sotomayor and Roberts Cite Garner.

The decision in T-Mobile v. City of Roswell presents an odd split. Justice Sotomayor writes for the majority, joined by Justices Scalia, Kennedy, Breyer, Alito (in judgment), and Kagan. In dissent were CJ Roberts, Justices Ginsburg and Thomas. That means that Justice Scalia would have assigned the majority to Justice Sotomayor. How often does that happen?

Fittingly, in a footnote Justice Sotomayor cites Justice Scalia’s and Garner’s “Reading Law” in a paragraph where petitioners cite Garner’s Black’s Dictionary!

First, petitioner argues that the word “decision” in the statute—the thing that must be “in writing”—connotes a written document that itself provides all the reasons for a given judgment. See Brief for Petitioner 24 (quoting Black’s Law Dictionary 407 (6th ed. 1990) (a “decision” is a written document providing “‘the reasons given for [a] judgment’”)). But even petitioner concedes, with its pre­ ferred dictionary in hand, that the word “decision” can also mean “something short of a statement of reasons explain­ ing a determination.” Brief for Petitioner 24 (citing Black’s Law Dictionary, at 407).5

FN5. One of petitioner’s amici argues that Congress has used the word “decision” in the context of other communications laws to mean some­ thing more than a judgment or verdict. See Brief for Chamber of Commerce of the United States of America (Chamber) et al. 9–13. But while it is true that a word used across “the same act” should be given the same meaning, see Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 10), the Chamber’s evidence is less persua­ sive because it arises out of entirely different “acts” and does not involve any term of art. By relying on other parts of Title 47 of the U. S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Read­ ing Law: The Interpretation of Legal Texts 172–173 (2012).

Not to be outdone, CJ Roberts cites Garner’s “Dictionary of Modern Legal Usage” in dissent:

But like the majority, I reject T- Mobile’s contention that the term “decision” inherently demands a statement of reasons. Dictionary definitions support that conclusion. See ante, at 12 (citing Black’s Law Dictionary); see also B. Garner, A Dictionary of Mod- ern Legal Usage 251 (2d ed. 1995) (grouping “decision” with “judgment,” as distinct from “opinion”).

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Jan 14, 2015

Audio: “Gridlock and Executive Power” at 2015 Federalist Society Faculty Conference

I presented my paper, Gridlock and Executive Power, at the works-in-progress panel at the Federalist Society not-so-much-in-the-shadow-anymore Faculty Conference.

Here is the audio of the event.

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Jan 13, 2015

National Law Journal Selects Cato Institute Amicus in King v. Burwell As “Brief of the Week”

The National Law Journal selected the brief Ilya Shapiro and I submitted to the Supreme Court in King v. Burwell as the “Brief of the Week.” Here is the introduction:

When South Texas College of Law professor Josh Blackman was researching his first book on the Affordable Care Act, he flagged all of the times he thought the Obama administration overstepped its authority in implementing the statute. King v. Burwell, the latest conservative challenge to the health care law, gave Blackman a chance to use that material.

Kingasks a narrow question: Can the executive branch extend tax credits to people who buy insurance through the federal marketplace? Blackman’s amicus brief, which he wrote with the Cato Institute, argues that the Internal Revenue Service’s decision to expand subsidy eligibility beyond state-run exchanges is part of a dangerous pattern of “executive lawmaking.”

“By radically and unilaterally modifying the core mechanisms Congress selected, the executive has warped the ACA, reengineering the statute based on the administration’s present-day policy preferences,” the libertarian think tank and Blackman argue in the brief.

Ilya Shapiro, a senior fellow at Cato and friend of Blackman’s, is counsel of record.

The NLJ also offers a nice plug for my in-progress-book, and announces the working full title.

Blackman is now working on a new book, which will chart legal challenges to the ACA from 2013 through the next presidential election. The working title is “Unraveled: Obamacare, Religious Freedom and Executive Power.”

Also, don’t ask me about how FantasySCOTUS will resolve this case–I’ve recused.

Blackman also has a keen interest in using statistics and other data to help predict how courts will rule. He directs judicial research for the analytics consulting firm LexPredict, and founded FantasySCOTUS, a “fantasy football”-style league for Supreme Court buffs.

As for Blackman’s prediction on whether King will be 5-4 like previous health-care challenges? The expert in analytics and the ACA said he’s going to recuse himself from weighing in.

I have already bought my tickets for D.C. on March 4. See everyone at the Court for arguments.

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Jan 13, 2015

Scalia Cites DIckens, Austen, and 1933 Oxford Dictionary to Provide “Original Meaning” of “Accompany” from 1934 Statute

In today’s remarkably short (6 pages!) decision in Whitfield v. United States, Justice Scalia makes an effective use of a contemporary dictionary to give a word its “original meaning”:

Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U. S. 255, 280 (2000) (GINSBURG, J., dissenting). Section 2113 has been amended frequently, but the relevant phrase—“forces any person to accompany him without the consent of such person”—has remained unchanged, and so presumptively retains its original meaning. Vermont Agency of Natural Resources v. United States ex rel. Ste- vens, 529 U. S. 765, 783, n. 12 (2000).

In 1934, just as today, to “accompany” someone meant to “go with” him. See Oxford English Dictionary 60 (1st ed. 1933) (defining “accompany” as: “To go in company with, to go along with”).

The opinion gets even more “original” when he cites Dickens and Austen.

The word does not, as Whitfield contends, connote movement over a substantial distance. It was, and still is, perfectly natural to speak of accompany- ing someone over a relatively short distance, for example: from one area within a bank “to the vault”;1 “to the altar” at a wedding;2 “up the stairway”;3 or into, out of, or across a room.4 English literature is replete with examples. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000) (Uriah “accompanied me into Mr. Wickfield’s room”); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room”).

Scalia returns to the Dellinger reference forcefully.

The Con- gress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.

This is a very well-written opinion.

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Jan 13, 2015

Economic Benefit from DAPA Does Not Eliminate Injuries For Purposes of Article III

In an amicus brief opposing Texas’s motion for a preliminary injunction, Washington, on behalf of dozen other states disputes that the states suffer an injury as a result of DAPA. In short, they argue that DAPA will benefit states, not cause harm.

Although Plaintiffs speculate that the immigration directives will cause them “drastic injuries,” their dire predictions directly conflict with available data. Programs deferring immigration action are not new. Past experience demonstrates that suspending deportation and providing work authorization benefits families and state economies by authorizing work, increasing earnings, and growing the tax base. ….

Allowing immigrants to work legally and increase their wages has far-reaching, positive impacts on state and local economies. In Washington, for example, approximately 105,000 people are anticipated to be eligible for deferred immigration action.19 Assuming that even a portion of the eligible undocumented immigrants register, request a reprieve from deportation, and obtain a temporary work permit, it is estimated that Washington’s tax revenues will grow by $57 million over the next five years.20 California’s tax revenues are estimated to grow by $904 million over the next five years with an anticipated 1,214,00 people eligible for deferred immigration action. 21 The tax consequences for the Plaintiff States are similarly positive. For example, if the estimated 594,000 undocumented immigrants eligible for deferred action in Texas receive temporary work permits, it will lead to an estimated $338 million increase in the state tax base over five years.22

This shot misses its target. Entirely. That an unconstitutional action may benefit the states in no way diminishes the injuries suffered. A non-lawyer friend recently made this point when I explained that DAPA imposes a cost on the state. She replied that the immigrants who can work will add to the economy, so there is no net cost. I then proceeded to explain that this isn’t how standing works.

If DAPA results in a single dollar of cost incurred by the state, that is sufficient for standing. Whether or not the undocumented aliens will contribute money to the economy, and offset the dollar is irrelevant.

The brief also includes an inapposite reference to the brief I joined on behalf of the Cato Institute.

Seeking to give a contrary impression, Plaintiffs misleadingly focus on one sub- category of undocumented immigrants—minor children—to claim that DACA has caused a surge of immigrants. But this is just untrue, as their own amici have acknowledged. The Cato Institute, which has submitted an amicus brief in support of the plaintiff States (ECF No. 61-2), has concluded: “Few facts of the unaccompanied children (UAC) surge are consistent with the theory that DACA caused the surge.”27

27. Cato Inst., Alex Nowrasteh, DACA Did Not Cause the Surge in Unaccompanied Children (July 29, 2014), available at http://www.cato.org/blog/daca-did-not-cause-surge-unaccompanied-children.

The amicus brief takes no position on whether DACA or DAPA will lead to a “surge of immigrants.”

Although, this reference is helpful. The Cato Institute has taken the position that DAPA is good policy, bad law, and terrible precedent. I take my hat off to a think tank that is able to praise an executive action from a policy perspective, and at the same time challenge its constitutionality in court.

As an aside, the Washington State Solicitor General has also in the past cited my and Ilya Shapiro’s work for something we never said.

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Jan 13, 2015

FantasySCOTUS and {Marshall}+ Final Predictions for December Sitting

This term, the LexPredict team will be generating predictions for all cases argued before the Supreme Court. First, we are aggregating the crowd-sourced predictions of the players on FantasySCOTUS. Second, we are generating predictions from {Marshall}+, our SCOTUS-prediction algorithm. You can view all of the predictions for Supreme Court cases at our Prediction Tracker and you can read more about the {Marshall}+ methodology via our paper on SSRN / arXiv and these presentation slides. For each sitting, we will compare the FantasySCOTUS predictions with the {Marshall}+ predictions.

In our first installment, we offered predictions for cases argued during the October sitting: Heien v. NCDart Cherokee Basin Operating Co., v. OwensHolt v. HobbsWarger v. ShauersInteg. Staff. Solns. v. Busk, and N.C. Board of Dental Examiners v. FTC.

In our second installment we offer predictions for the remainder of the cases argued during the October sitting, and all cases argued during the November sitting: Jennings v. StephensTeva Pharmaceuticals USA v. SandozOmnicare v. Laborers District Council Construction Industry Pension FundZivotofsky v. KerryDepartment of Homeland Security v. MacLeanJesinoski v. Countrywide Home LoansJohnson v. U.S.Yates v. U.S.M&G Polymers USA, LLC v. TackettT-Mobile South, LLC v. City of RoswellAlabama Democratic Conference v. AlabamaAlabama Legislative Black Caucus v. Alabama, and Comptroller v. Wynne.

In this post, we offer predictions for the cases argued during the December sitting: Nickols v. Mortgage Bankers AssociationElonis v. U.S.Perez v. Mortgage Bankers AssociationWhitfield v. U.S.B&B Hardware v. Hargis IndustriesYoung v. United Parcel ServiceHana Financial v. Hana BankDepartment of Transportation v. Association of American RailroadsDirect Marketing Association v. BrohlGelboim v. Bank of America CorporationAlabama Department of Revenue v. CSX TransportationU.S. v. JuneU.S. v. Wong.

For these thirteen cases, FantasySCOTUS and {Marshall}+ agree with the outcome in five cases of the thirteen. FantasySCOTUS is predicting a significant number of affirms–much higher than the historical average. {Marshall}+ is predicting a majority of reverses, which is more in keeping with the Court’s practices. Because one of the variables in our algorithm considers the duration of time between when the case is argued, and decided, the predictions offered today may differ as the term progresses.

the-tenFantasySCOTUS Crowds Marshall-Animated{Marshall}Algorithm
Nickols v. Mortgage Bankers Association

8-1 Affirm

9-0 Reverse

Elonis v. U.S. 8-1 Affirm 9-0 Reverse
Perez v. Mortgage Bankers Association 6-3 Affirm 9-0 Reverse
Whitfield v. U.S. 8-1 Reverse 9-0 Reverse
B&B Hardware v. Hargis Industries 6-3 Affirm 9-0 Reverse
Young v. United Parcel Service 5-4 Reverse 9-0 Reverse
Hana Financial v. Hana Bank 9-0 Affirm 9-0 Reverse
Department of Transportation v. Association of American Railroads 9-0 Reverse 9-0 Reverse
Direct Marketing Association v. Brohl 9-0 Reverse 9-0 Reverse
Gelboim v. Bank of America Corporation 9-0 Affirm 9-0 Reverse
Alabama Department of Revenue v. CSX Transportation 5-4 Reverse 9-0 Reverse
U.S. v. June 9-0 Affirm 9-0 Reverse
U.S. v. Wong 6-3 Affirm 9-0 Reverse

Nickols v. Mortgage Bankers Association

Nickols v. Mortgage Bankers Association is an administrative law case. It considers whether agencies subject to the Administrative Procedure Act are categorically prohibited from revising their interpretative rules unless such revisions are made through notice-and-comment rulemaking.

The crowd expects the Court to affirm, near unanimously. Only Justice Sotomayor is forecasted to reverse, and her vote at 51% is effectively a wash. {Marshall}+ predicts a strong unanimous reversal.

Nickols

 

Perez v. Mortgage Bankers Association

Perez v. Mortgage Bankers Association is the companion case to Nickols, posing the related question of whether a federal agency must engage in notice-and-comment rulemaking pursuant to the Administrative Procedure Act before it can significantly alter an interpretive rule that articulates an interpretation of an agency regulation.

While this crowd forecasts a vote of 6-3 to affirm, with Justices Scalia, Thomas, and Alito joining in dissent to reverse, {Marshall}+ also predicts a 9-0 reversal. Of note, the votes of Justice Scalia, Thomas, and Alito are slightly lower than those of the Justices the majority expects to affirm–but not by much.

perez

 

Elonis v. U.S.

Elonis v. U.S. is a trendy case involving threats over social media. Specifically, it considers whether the First Amendment requires for a conviction of threatening another person the proof of the defendant’s subjective intent to threaten.

With respect to the relationship between the {Marshall}+ and the crowd, well, it’s complicated. The crowd expects almost all of the Justices to rule in favor of the government, and against the defendant Elonis. Justice Kagan, who sits at 51% to reverse, is effectively a wash. Meanwhile, the crowd expects all of the Justices to rule in favor of the defendant, and against the government.

elonis

 

Whitfield v. U.S.

Whitfield v. U.S. is a sentencing case. It considers whether 18 U.S.C. § 2113(e), which provides a minimum sentence of ten years in prison and a maximum sentence of life imprisonment for a bank robber who forces another person “to accompany him” during the robbery or while in flight, requires proof of more than a de minimis movement of the victim.

Here, the crowd and {Marshall}+ are in almost total agreement–the former predicting an 8-1 reverse, and the latter predicting a 9-0 reverse. Though, the vote of Justice Thomas to affirm is at exactly 50, so it is close enough to a unanimous reversal. Here, the government will almost certainly lose.

whitfield

 

B&B Hardware v. Hargis Industries

B&B Hardware v. Hargis Industries is an intellectual property case. It considers whether a finding of a likelihood of confusion precludes respondent from relitigating that issue in infringement litigation, in which likelihood of confusion is an element.

The Crowd expects the Court to affirm, 6-3. The crowd, again, forecasts a unanimous reversal.

bb

 

Young v. United Parcel Service

Young v. United Parcel Service is an employment discrimination case, that asks whether the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees with work limitations to provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”

The crowd predicts a 5-4 reversal, though it is tight with Justice Kennedy’s swing score only at 55%. The other conservative Justices are solid votes against Ms. Young. {Marshall}+, however forecasts a straight 9-0 reversal, with all of the Justices solidly behind the petitioner.

Young

 

Hana Financial v. Hana Bank

Hana Financial v. Hana Bank, also an intellectual property case, asks whether the jury or the court determines whether use of an older trademark may be tacked to a newer one.

The crowd and {Marshall}+ are like two ships passing the night. The crowd predicts a solid 9-0 affirmance–the rarest of all splits. The algorithm predicts a solid 9-o reversal.

hana

 

Department of Transportation v. Association of American Railroads

Department of Transportation v. Association of American Railroads is an constitutional and administrative law issue that considers whether the Passenger Rail Investment and Improvement Act of 2008 effects an unconstitutional delegation of legislative power to a private entity, Amtrak.

For this case, the crowd and {Marshall}+ are in complete agreement–both forecast a 9-0 reversal.

trans

 

Direct Marketing Association v. Brohl

Direct Marketing Association v. Brohl, is a tax case that considers whether the Tax Injunction Act bars federal court jurisdiction over a suit brought by non-taxpayers to enjoin the informational notice and reporting requirements of a state law that neither imposes a tax, nor requires the collection of a tax, but serves only as a secondary aspect of state tax administration.

Here too, the crowd and algorithm are in perfect agreement–both forecasting a 9-0 reversal.

brohl-correct

 

Gelboim v. Bank of America Corporation

Gelboim v. Bank of America Corporation is a procedural matter that asks whether and in what circumstances the dismissal of an action that has been consolidated with other suits is immediately appealable.

The FantasySCOTUS crowd and the {Marshall}+ algorithm are diametrically opposite–the former predicts a 9-0 affirm, and the latter predicts a 9-0 reversal.

gelboim

 

Alabama Department of Revenue v. CSX Transportation

Alabama Department of Revenue v. CSX Transportation is a tax case. It asks whether a state “discriminates against a rail carrier” when the state generally requires commercial and industrial businesses, including rail carriers, to pay a sales-and-use tax but grants exemptions from the tax to the railroads’ competitors.

Here, the crowd and algorithm agree that the Court will reverse, but disagree on the split. FantasySCOTUS forecasts a 5-4 reversal with a liberal majority. The crowd predicts a fairly solid 9-0 reversal.

csx

 

U.S. v. June

U.S. v. June is a Federal Torts Claim Act case, that asks whether the two-year time limit for filing an administrative claim with the appropriate federal agency under the FTCA is subject to equitable tolling.

The crowd expects a unanimous affirmance, and the algorithm experts a unanimous reversal.

june

 

U.S. v. Wong

U.S. v. Wong, a companion case to June, asks whether the six-month time bar for filing suit in federal court under the FTCA is subject to equitable tolling.

The crowd expects three Justices to dissent in Wong, as compared to June–Justices Scalia, Thomas and Alito. The algorithm holds fast to a unanimous reversal.

wong

 

 

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Jan 12, 2015

Alito Dissental: “Unprecedented” Holding of 6th Circuit “is so clearly wrong that summary reversal is warranted.”

In today’s orders, Justice Alito dissents from the denial of certiorari from a 6th Circuit 1983 decision by Judge Keith, over a dissent from Judge Sutton. Judge Sutton’s dissent aptly summarizes the issue:

Even after plumbing the depths of logic, experience, case law and common sense, I must return to this surface point: When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.
The majority seeing it differently, I must respectfully dissent.

Justice Alito put agreed the issue was terribly wrongly decided.

Certiorari is appropriate when “a United States court of appeals . . . has so far departed from the accepted and usual course of judicial proceedings . . . as to call for an exercise of this Court’s supervisory power.” Supreme Court Rule 10(a). The decision of the Sixth Circuit in this case—holding that respondent suffered an adverse em- ployment action when his employer transferred him to a position for which he had applied—qualifies for review under that standard. Indeed, the holding of the court below is so clearly wrong that summary reversal is war- ranted. The strangeness of the Court of Appeals’ holding may lead this Court to believe that the holding is unlikely to figure in future cases, but the decision, if left undis- turbed, will stand as a binding precedent within the Sixth Circuit. I would grant review and correct the Sixth Cir- cuit’s obvious error.

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

Alito also praised Judge Sutton’s opinion:

Judge Sutton dissented. The dissent noted that re- spondent applied for the transfer with full knowledge of what it involved, including the presence of diesel fumes in the workplace, ibid., and that respondent persisted in seeking the job after he initially did not receive it, id., at 922. The dissent rejected the majority’s suggestion that the transfer was “‘involuntary’” because respondent ad- mitted that no one told him that he had to take the trans- fer and neither did he tell anyone that he did not want it. Ibid. Because respondent gave the Commission “no rea- son to believe that he did not want the transfer and every reason to believe that he did,” the dissent concluded that the Commission did not subject respondent to an adverse employment action. Ibid. The dissent’s commonsense conclusion was correct.

He even calls the decision “unprecedented”:

The decision of the court below is unprecedented and clearly contrary to the statutes on which respondent’s claims are based. I would grant the petition for certiorari and summarily reverse

As an aside, I think the Alito clerks added this unnecessary footnote to get the phrase “lack of consortium” into the U.S. Reports.

His wife, Mae Deleon, sued for lack of consortium and is also a re- spondent here.

 

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Jan 11, 2015

Federal Court Invalidates Texas African Hair Braiding Licensing Scheme

Texas imposes many cost-prohibitive and onerous restrictions on African Hair Braiding schools that seek licensure.

Those facility and equipment requirements include the three Plaintiffs have placed in issue: (1) a requirement the school have “at least 10 student workstations that include a chair that reclines, a back bar, and a wall mirror” (the 10-ChairMinimum (2) a requirement the school install” a sink behind every two workstations” (the 5-Sink Minimum); and (3) a requirement the school have at least 2,000 square feet of floor space.

The Institute for Justice challenged each of these three requirements, which justify the regulations, as violations of the 14th Amendment.

In a thoughtful opinion, Judge Sparks (WDTX) invalidated the rule. In doing so, he applied the type of methodological application of the rational basis test that I champion in my article, The Burden of Judging. In short, he required the government to supply actual evidence that its motivations are reasonable, rather than accepting fabricated rationales. This small burden ensures that all but the most absurd regulations–such as the regulation at issue here–remain on the books. But the most sense violations of the right to pursue an honest living are excised from the statute books.

The District Court’s opinion grounds its rational-basis test analysis in the Fifth Circuit’s recent decision, St. Joseph Abbey v. Castille–another rational basis test victory by IJ invalidating a regulation on selling caskets. Most significant is St. Joseph Abbey’s characterization of Lee Optical.

In considering the agency’s argument, the Fifth Circuit discussed Lee Optical at length, noting Lee Optical” is generally seen as a zenith of [] judicial deference to state economic regulation” and embodied a “willingness to accept post hoc hypotheses” to shield such regulation against constitutional challenge. But, the Fifth Circuit explained, despite its healthy measure of deference to the legislature, Lee Optical “placed emphasis on the ‘evil at hand for correction’ to which the law was aimed” and “insist[ed] upon a rational basis, which it found.”

In other words, there needs to be an *actual* rational basis to address an *actual* evil at hand.  But what about Carolene Products, you ask? That case only allowed the deferential assumption to apply generally, unless the law is “of such a character as to preclude the assumption that it rests upon some rational basis.” The district court agreed with St. Joesph Abbey’s “nuanced articulation and application of the rational basis test.”

The District Court here accepted that articulation of the rational basis test. The Court walked through each rationale, one at a time, and concluded that Plaintiffs “have successfully refuted every purported rational basis” for the regulations, and the “Court can discern no other rational bases for the” regulations “in light of the facts at hand.” Rather than conceiving of the most outlandish justifications under the rational basis test, the court remained grounded in reality, and only thought of other possible bases in light of the “facts at hand.”

First, with respect to the 10-Chair minimum, the Court acknowledged it “at first blush . . . seems reasonable,” however the law also states that schools that only offer hair braiding curriculum need an “adequate number” of chairs. The court founds this regulation is not “rationally related to any legislative purpose.”

Second, with respect to the 5-sink minimum, the court found the state’s “disinfecting protocols” unpersuasive because students were allowed to use liquid hand sanitizer, rather than water and soap, prior to braiding hair. Further, hair braiders are not required under state law to have sinks–so why should schools. This rational too was not “rationally related to any legislative purpose.”

Third, with respect to the 2,000 square foot minimum, the Court did not accept the government’s rationale that it promotes “effective and efficient inspection of facilities” by “ensuring the state will not be required to inspect many small barber schools for compliance with state law.” The Court’s analysis on this point was very important–there was nothing in the record suggesting that this rationale, in the least, motivated the law. Citing St. Joseph Abbey, the Court found that this concern was not “an evil at hand for correction’ to which the” square-footage requirement was aimed. The Court rejected an approach that “proceeds with abstraction for hypothesized ends” or one premised on “post hoc hypothesized facts.” The linking of the rationale to the “evil at hands” is an important nexus that gives the rational basis test some meaningful teeth.

Finally, the court asked Defendant whether there was a single school that teaches solely African Hair Braiding that complies with the regulations. The government could not identify one, even after being afforded an additional ten days for doing so. The Court explained that the “absence of any such schools is troubling, as the Texas regulatory scheme explicitly contemplates the existence of barber schools which teach solely the thirty-five hour hair braiding curriculum.” In other words, the regulations render impossible the very vocation that the Texas law envisions being able to exist. The Court viewed this fact as a “logical disconnect.” To make this point more clear, the Court notes that “Texas has issued zero individual hair braiding instructors’ licenses. The bureaucracy nullified this vocation. Only through a federal law suit could the hair braiders pursue their right to earn an honest living.

This is another important application of meaningful rational basis review. I hope it spreads.

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Jan 9, 2015

That Time “Scalia kidded Emanuel about the apparent collapse of Obamacare”

In Steven Brill’s new book, America’s Bitter Pill, about Obamacare, we get this bizarre and unsourced anecdote that is almost too good to be true.

But by January 22 [2010] , there was hope in the air in some quarters. That night Zeke Emanuel was seated at a dinner next to Supreme Court justice Antonin Scalia. The conservative Scalia kidded Emanuel about the apparent collapse of Obamacare. Zeke offered to bet him that they would get Obama’s reform package through, somehow.

Can this possibly be true? By what of background, on January 19, 2010, Scott Brown beat Martha Coakley in the Massachusetts Special Election, giving the Republicans 41 votes, and enough to break a filibuster. It was at this time the Democrats were weighing whether or not to go ahead allowing the House to vote on the Senate Bill, or using “Deem and Pass,” or the budget reconciliation process, or even abandoning the whole endeavor.

Scalia, if this story is to be believed, was tweaking Zeke Emanuel, along with Gruber an architect of Obamacare, about the law’s “apparent collapse.”

Beyond this anecdote, the book doesn’t offer many insights about the Supreme Court litigation (what interests me most).

One quasi-litigation related issue is this discussion about how no one wanted to frame the mandate as a tax:

Yet Bauer, taking the view that most legal academics had already espoused, said he was confident the courts would not interfere with Congress’s judgment that this was a penalty necessary to regulate and improve the health insurance market, which, of course, was commerce. “We think we’re in a strong position,” Bauer reported, according to notes of the meeting taken by one of the participants. Unmentioned in the discussion (although it was always mentioned in the government’s briefs) was that had Congress called the penalty a tax, there would have been no case at all. The Constitution gave broad taxing power to Congress. And the nation’s tax collector, the IRS, had been charged under Obamacare with collecting what anyone who ignored the mandate owed. Yet no politician on Capitol Hill or in the White House wanted to be associated with raising taxes if he or she could avoid it. Many, like David Axelrod and Charles Schumer, were wary of the penalty as it was.

Months before, in the early stages of drafting the bill, someone on the Finance Committee staff had mentioned the possibility of calling it a tax because he had heard a Republican staffer say something about the Commerce Clause. However, he was quickly shot down. The issue hadn’t come up since— until the lawsuits started flying. Still, Bauer did not mention the possibility of calling the penalty a tax as a defense. He was confident about the Commerce Clause. Insurance was commerce , and the mandate was simply a necessary way to regulate that commerce by strengthening the insurance market.

And apparently one member of “Obama’s political team” told a staffer that “the person in charge of Obamacare is John Roberts.”

In a third case, a White House staffer told me that a member of Obama’s political team had said that there was no need to rush anything out the door, though he rationalized it by explaining that for now “the person in charge of Obamacare is John Roberts.” He was referring to the chief justice of the United States and the fact that the constitutionality of Obamacare was on its way to being argued before the Supreme Court in late March 2012.

Brill, Steven (2015-01-05). America’s Bitter Pill: Money, Politics, Backroom Deals, and the Fight to Fix Our Broken Healthcare System (Kindle Locations 3868-3871). Random House Publishing Group. Kindle Edition.

Double hearsay!

I also found interesting this quotation from the President, which Brill secured in a Q&A is very revealing:

Keep in mind, not only did the ACA become law, it was upheld by the Supreme Court in 2012, and, in the same year, voters rejected the candidate who promised to repeal it. Despite all that, you’ve seen a sustained effort to sabotage the law at every turn— from fifty-something repeal votes to efforts aimed at defunding its implementation, to lawsuits. This from a party that’s typically opposed to frivolous lawsuits.

To be exact, Romney did not say he would repeal the ACA, and got mad at Paul Ryan when he suggested that. Romney also invented Romneycare, the godfather of Obamcare, designed by Jonathan Gruber. As I explain in my book, the GOP ran perhaps the worst conceivable candidate on the issue of Obamacare in 2012. And he lost.

He added:

But it should be pretty clear by now that I didn’t do this because it was good politics. I did it because I believed it was good for the country. I did it because I believed it was good for the American people.

This was almost verbatim the message he gave at the Capitol Visitor Center to House Democrats the day before the House voted on the ACA.

The best question was the one not answered:

QUESTION 11 How would you explain to a sixth or seventh grade class the process that led to the passage of Obamacare— the negotiations with the various industry sectors, the lack of bipartisanship, the sheer complexity and length of the statute?

THE PRESIDENT’S ANSWER:

Declined to answer.

 

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Jan 8, 2015

But What About Justice Souter?

Retired Supreme Court Justices are allowed to hire one law clerk. Usually, that clerk is assigned to work part-time for another Justice.

In the Atlantic, Ryan Park writes a fascinating article about his clerkship with Justice Ginsburg. The article begins:

This past summer, on the last day of my clerkship with Justice Ruth Bader Ginsburg, she rose from her cavernous desk and, following a hearty goodbye hug, asked me what was next. I told her that the next morning marked the start of my new job as a stay-at-home dad. She smiled warmly and wished me luck.

Nowhere in the actual article is there ANY mention of the fact that Park was actually a Souter clerk, who was assigned to Ginsburg. Only in the footer of the article, do you see this credit, which lists RBG first:

Ryan Park is an associate at the law firm Boies, Schiller & Flexner LLP and a former law clerk to U.S. Supreme Court Justices Ruth Bader Ginsburg and David H. Souter.

Is this bad etiquette to slight the Justice you work for, and only mention him in passing in the author bio? I have no doubt Park did extensive work for RBG, and worked closely with her, but the standard practice is to focus on the judge who hired you. This is almost as bad as some people who say they clerked for Justices Breyer or Alito, when they actually clerked for Judges Breyer or Alito (you know who you are!).

Also, the timing of his gap between clerking and working seems within the realm of normalcy. He finished working at the Court in July of 2014.  He started working at Boies, Schiller & Flexner a “few weeks ago.” He took off roughly five months between the conclusion of his clerkship, and the start of his law firm gig. That doesn’t seem too unreasonable. Several clerks I know have taken off a few months to travel and do other fun stuff. Also, I am pretty sure he still collected the $250,000+ signing bonus.

Update: David Lat notes that Aaron Zelinsky, who clerked fro Justice Stevens, and was assigned to Justice Kennedy, writes this for his bio:

Aaron Zelinsky served as a law clerk for Justices John Paul Stevens (Ret.) and Anthony Kennedy of the United States Supreme Court, as well as Chief Justice Dorit Beinisch of the Israeli Supreme Court and Judge Thomas B. Griffith of the Court of Appeals for the District of Columbia Circuit.

I think this strikes the right balance. It is accurate, and respectful to both judges.

Update: The article is now updated, with Justice Souter’s name listed first.

Ryan Park is an associate at the law firm Boies, Schiller & Flexner LLP and a former law clerk to U.S. Supreme Court Justices David H. Souter and Ruth Bader Ginsburg.

Update: Ryan provided an update to ATL:

I just wanted to write and address one thing that is mentioned in the post, which is my dual citizenship in both Justice Souter’s and Justice Ginsburg’s chambers. I completely agree that I owe the privilege of clerking at the Court to Justice Souter, who is the person who actually hired me. But I couldn’t really think of a good place to mention my relationship with him in the main body of the article in light of the article’s context. (I mean, much of it is a tribute to Justice Ginsburg’s life and career.) I’m grateful to Justice Ginsburg for taking me on as one of her own. I didn’t mean to slight (or think I was slighting) Justice Souter by writing an article highlighting my relationship with her. It also would have been nice to mention the other judges I clerked for, Chief Judge Robert Katzmann and Judge Jed Rakoff, but it wasn’t really relevant to the piece. I didn’t write the byline (or the headline) for the article, but I asked that the order of the Justices be flipped, just to put the issue to bed. The Atlantic agreed to do so.

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