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Eric Posner writes at Slate what many of us have realized for a long time. With AMK in the middle, the Court skews libertarian, not conservative.

Because Kennedy is so often the swing vote, it is more accurate to call this court “libertarian” than “right-wing.” The Cato Institute, a libertarian think tank, prevailed in 15 of the 18 casesin which it submitted a friend-of-the-court brief this term.

And congratulations to my good friend Ilya Shapiro (whose birthday is today!) for running the Amicus program at Cato. They cleaned up this year, filing on the prevailing side in 15/18 cases.

In case all of you fedcourts wonks are finished chewing through the jurisdictional issues in Perry and Windsor, today the en banc court in Hobby Lobby revisited an issue that was unanswered in NFIB –is the Anti-Injunction Act jurisdictional, or can it be waived?

In NFIB, the Solicitor General took the odd position that the AIA was jurisdictional, but at the same told the Justices that they could resolve the case now, and not wait until 2014 when the mandate would be implemented. (I won’t even bother explaining the intricacies of that decision here). The Supreme Court ducked that issue, because under Chief Justice Roberts’s opinion, the mandate was not a tax. Thus the AIA was inapplicable.

The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti–Injunction Act. The Anti–Injunction Act therefore does not apply to this suit, and we may proceed to the merits.

HOWEVER, it would be construed as a tax for purposes of the saving construction. (If you’re confused read my book. Unfortunately I spend way too much time discussing the AIA, which turned out to be critical). 

So, is the AIA jurisdictional? In Hobby Lobby, three judges of the en banc 10th Circuit (Gorsuch, Kelly, and Tymkovich) find that it is not.

We could not, of course, reach the merits of the RFRA question if we thought the Anti-Injunction Act barred our way. The AIA precludes our consideration of suits seeking to “restrain the assessment or collection of any [federal] tax.” 26 U.S.C. § 7421(a). Though they agree on little else, both sides before us insist this lawsuit doesn’t meet that description. But a non-trivial argument could be made that they are all wrong: the plaintiffs, after all, seek to restrain the government’s use of any of the ACA’s enforcement mechanisms, including one that is expressly labeled a “tax.” See 26 U.S.C. § 4980D(a). And Congress’s decision to label something a tax usually is enough for it to trigger the AIA, “even where that label [is] inaccurate.” See NFIB v. Sebelius, 132 S. Ct. 2566, 2583 (2012).

I write to emphasize that, even if the parties are wrong and the AIA does apply to this case, it still wouldn’t allow us to avoid reaching the merits. It wouldn’t because the government has expressly waived any reliance on the AIA: not only did it fail to raise the AIA as a defense in the district court, it discouraged us from applying the statute when we invited additional briefing on the matter. So long as the AIA affords the government only a waivable defense — so long as it doesn’t impose on the courts a jurisdictional limit on our statutory authority to entertain this case — we are bound to reach the merits. And a waivable defense, we are persuaded, is all the AIA provides.

Gorsuch pokes some fun at the Supreme Court for ducking this issue.

And more recently the Supreme Court has approached the AIA much more gingerly, taking care to avoid the jurisdictional epithet. See NFIB v. Sebelius, 132 S. Ct. 2566, 2582 (2012) (holding that the AIA didn’t apply in that case by its own terms). In the end, the AIA shows none of the hallmarks of a jurisdictional restriction, and has many features that collectively indicate otherwise. The government can waive its application, and it has done so before us. Given that, we can be sure, perhaps doubly sure, that reaching the merits of this case is appropriate and indeed our duty

Granted, only three judges reached this, but at least we have *some* clarity.

There were also a number of citations to NFIB throughout the opinion worth highlighting. Interestingly, this subtle bit acknowledged the fact that (according to Roberts) NFIB was not about a challenge to a stand-alone mandate, but a challenge to the tax (remember there is no mandate):

And just as the AIA does not apply to any suit against the individual mandate, which is enforced by the IRS, see NFIB, 132 S. Ct. at 2584, so too does the AIA not apply to any suit against the contraceptive-coverage requirement, even though it also may be enforced by the IRS.

 

Rick Dunham wrote a piece in the Houston Chronicle about the use of race after Fisher and Shelby County, in which I am quoted:

Legal scholars said the nation’s highest court is sending a clear message about policies that differentiate among Americans on the basis of race.

“What the Supreme Court is saying is that using race even for benign purposes such as educational diversity is more odious than the evil they hope to combat and can only be used in the narrowest of cases,” said Josh Blackman, a constitutional law professor at South Texas College of Law.

But because the court, in both cases, did not address the issues directly, it will take years of lawsuits and legislative action to sort out the precise meaning of the conservative majority’s rulings.

“It’s going to be something of a mess,” Blackman said. “The states can now do what they want, and it’ll be hard for the civil rights groups to stop it.”

 

 

I was waiting for something like this in Windsor, which was joined by the Chief and Thomas. You can hear the relish in his voice.

It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that the statute is unconstitutional. Where the Executive is en- forcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitution- ality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitu- tional, see Presidential Authority to Decline to Execute Un- constitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law.

This is the OLC opinion cited during oral arguments.

The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.

Kennedy replies that it would be wrong to insulate the President’s decision from judicial review, if he fails to defend the law.

Kennedy made a similar point in his Perry dissent:

The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding . . . . Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure. See 52 Cal. 4th, at 1126–1128, 265 P. 3d, at 1006– 1007. And in light of the frequency with which initiatives’ opponents resort to litigation, the impact of that veto could be substantial. . . . As a consequence, California finds it necessary to vest the re- sponsibility and right to defend a voter-approved initiative in the initiative’s proponents when the State Executive declines to do so

CJ Roberts in Perry had this interesting take on standing that I haven’t seen anywhere else in this context (a quick search for “Act as judges” brings up nothing on point):

This is an essential limit on our power: It ensures that we act as judges, and do not engage in policymaking properly left to elected representatives (emphasis in original).

What does it mean for a Judge to act as a Judge? I’ve heard Justice Scalia use this analogy many times when talking about different doctrines–he will follow it if it allows him to “act like a judge.” Justice Alito gave an address at the Manhattan Institute titled “Let judges be judges.”

 

But ordinary people stubbornly hold on to some old-fashioned beliefs, one of which is the idea that the Constitution means something. Statutes mean something. And the role of a judge is to interpret and apply the laws as they are written. Asked whether a judge should apply the law as written or do what the judge thinks is fair and just, two-thirds of those polled said: apply the law as written. That’s what we mean when we say that we have the rule of law and not the rule of men.

We need to preserve that idea. Judges are not scientists, and they should not be constitutional rubber stamps. They have no warrant to pursue a reform agenda that is not grounded in the Constitution. And they should not aim to be theorists or crowd pleasers. Let judges be judges. For if they are not, our legal system as we know it will fade away.