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From Politico:

March 25: Final enrollment deadline extended. The March 31 deadline — the end of enrollment for 2014 — will be loosened for people with special sign-up circumstances.

March 14: High-risk pools extended. The special, temporary coverage for people with serious pre-existing conditions — which was supposed to last only until the health insurance exchanges were in place — was extended a third time for another month.

Feb. 10: Employer mandate delayed. This time, businesses with between 50 and 100 workers were given until 2016 to offer coverage, and the mandate will be phased in for employers with more than 100 workers.

Jan. 14: High-risk pools extended. The high-risk insurance pools, which originally had been slated to close Jan. 1, had already been extended once.

Dec. 24: Enrollment deadline extended. In a message on HealthCare.gov, customers were told they could get help finishing their Jan. 1 applications if they were already in line on Dec. 24.

Dec. 12: Enrollment deadline extended. Customers on the federal enrollment website were given nearly two more weeks to sign up for coverage effective Jan. 1.

Nov. 27: Small Business Health Options Program (known as SHOP) delayed. Online enrollment for the federal health insurance exchanges for small businesses was delayed.

Nov. 21: Open enrollment delayed for 2015. The administration pushed back next year’s enrollment season by a month.

July 2: Employer mandate delayed. The administration declared that it wouldn’t enforce the fines in 2014 for businesses with more than 50 full-time workers who don’t offer health coverage. The fines were pushed back to 2015.

Nov. 15, 2012: Exchange deadline delayed. The Department of Health and Human Services gave states an extra month to decide whether they would set up their own health insurance exchanges — a decision it announced just one day before the original deadline.

There are many more, but this is just a start.

I previously blogged about the amicus brief that I signed, alongside Randy Barnett, Richard Epstein, and others in Courtney v. Danner. This case calls on the Court to correct an erroneous application of the Privileges or Immunities Clause. We have some (slightly) good news to report. Today the Court called for a response from respondents. Of course, none of this means we will get a Cert Grant, but the Justices (as they say) are taking this issue seriously.

Here is the docket for the case:

No. 13-1064 Title: James Courtney, et al., Petitioners v. David Danner, Chairman and Commissioner of the Washington Utilities and Transportation Commission, et al. Docketed: March 6, 2014 Lower Ct: United States Court of Appeals for the Ninth Circuit   Case Nos.: (12-35392)   Decision Date: December 2, 2013 ~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~ Mar 3 2014 Petition for a writ of certiorari filed. (Response due April 7, 2014) Mar 7 2014 Waiver of right of respondents David Danner, Chairman and Commissioner of the Washington Utilities and Transportation Commission, et al. to respond filed. Mar 12 2014 DISTRIBUTED for Conference of March 28, 2014. Mar 21 2014 Brief amici curiae of History and Law Professors filed. (Distributed) Mar 26 2014 Response Requested . (Due April 25, 2014)

Nino will get some flak for his opinion in United States v. Castleman. The case presents a relatively mundane question of whether a certain predicate offense constitutes “domestic violence” under the Armed Career Criminal Act. Justice Scalia takes exception with the sources Justice Sotomayor relies on to define “domestic violence.”

First, forget the war on women. This opinion is a “war with the English language!”

Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that “‘domestic violence’ encom- passes a range of force broader than that which con- stitutes ‘violence’ simpliciter.” Ante, at 6, n. 4. That is to say, an act need not be violent to qualify as “domestic violence.” That absurdity is not only at war with the English language, it is flatly inconsistent with defini- tions of “domestic violence” from the period surrounding §921(a)(33)(A)(ii)’s enactment. At the time, dictionaries defined “domestic violence” as, for instance, “[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a house- hold against another,” Black’s Law Dictionary 1564 (7th ed. 1999), and “[v]iolence toward or physical abuse of one’s spouse or domestic partner,” American Heritage Diction- ary 534 (4th ed. 2000).6 Those definitions, combined with the absence of “domestic violence” entries in earlier dic- tionaries, see, e.g., Black’s Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a “term of art” definition “encompassing acts that one might not characterize as ‘violent’ in a nondomestic context,” ante, at 7.

Scalia also takes issue the fact that Justice Sotomayor relied on (gasp!) an amicus from the National Network to End Domestic Violence, that cites (double gasp!) law review articles, and (triple gasp!) “foreign government bureaus,” to define “domestic violence.”

The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network to End Domestic Violence and other private organizations,8 and two publications issued by the De- partment of Justice’s Office on Violence Against Women. The amicus brief provides a series of definitions—drawn from law-review articles, foreign-government bureaus, and similar sources—that include such a wide range of nonvio- lent and even nonphysical conduct that they cannot possi- bly be relevant to the meaning of a statute requiring “physical force,” or to the legal meaning of “domestic vio- lence” (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici’s definitions describe as “domestic violence” acts that “hu- miliate, isolate, frighten, . . . [and] blame . . . someone”; “acts of omission”; “excessive monitoring of a woman’s behavior, repeated accusations of infidelity, and control- ling with whom she has contact.” Brief for National Network to End Domestic Violence et al. as Amici Curiae 5–8, and nn. 7, 11.

Scalia also faults the DOJ definition of “domestic violence” in the paragraph that will grab the most attention:

Of course these private organizations and the Depart- ment of Justice’s (nonprosecuting) Office are entitled to define “domestic violence” any way they want for their own purposes—purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all- embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence.

I’m convinced that at this point, Nino is just trolling us. He could’ve made his point effectively without this paragraph. But he did it because Scalia.

For good measure, Scalia said the government receives no deference here–same for groups who have an interest in expanding the scope of “domestic violence.”

And in any event, the Department of Justice thankfully receives no deference in our interpretation of the criminal laws whose claimed violation the Department of Justice prosecutes. See Gonzales v. Ore- gon, 546 U. S. 243, 264 (2006) (citing Crandon v. United States, 494 U. S. 152, 177 (1990) (SCALIA, J., concurring in judgment)). The same ought to be said of advocacy organ- izations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of “do- mestic violence” in order to broaden the base of individuals eligible for support services.10

10 See, e.g., National Network to End Domestic Violence, Reauthorize The Family Violence Prevention and Services Act 1 (Sept. 22, 2010) (advocating the expansion of a program assisting victims of domestic violence to include victims of “dating violence” and thereby “ensure that all victims in danger can access services”), online at http://nnedv.org/ downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.

The truth of the matter is now other courts will cite the Supreme Court as an authoritative statement of what “domestic violence” is. Justice Scalia should have cited Alli Orr Larsen’s new, important article on point, “The Trouble with Amicus Facts.”

Justice Sotomayor responds to Scalia’s charges:

JUSTICE SCALIA’s concurrence discounts our reference to social-science definitions of “domestic violence,” including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 8–11. It is important to keep in mind, how- ever, that the operative phrase we are construing is not “domestic violence”; it is “physical force.” §921(a)(33)(A). “Physical force” has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a “misdemeanor crime of domestic violence.”6

6 The concurrence’s reliance on definitions of “domestic violence” in other statutory provisions, see post, at 8, and n. 7, is similarly unper- suasive. These other provisions show that when Congress wished to define “domestic violence” as a type of “violence” simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U. S. 485, 492 (1994). This also answers the concurrence’s suggestion, post, at 10, that our holding will somehow make it difficult for Congress to define “domestic violence”—where it wants to—as requiring violent force.

Though, I’m sad Scalia didn’t cite the “domestic violence” clause of the Constitution!

SECTION. 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

That is a favorite for statutory interpretation exercises. Does “domestic violence ” in the Article IV of the Constitution takes its meaning from 1787 or 2014?

Paging Linda Greenhouse–this column will write itself.

Traditionally, in order to obtain an injunction, a plaintiff must prove four elements: “A plaintiff seeking a preliminary injunction must establish that he is (1) likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and that an (4) injunction is in the public interest. If an injunction is issued, a defendant is ordered to do, or not to do something. Failure to comply with the order can result in contempt of court.

Often injunctive relief is sought alongside a declaratory judgment. Under the Declaratory Judgment Act, in “a case of actual controversy” (it does not say “case or controversy”), courts have jurisdiction to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.” In other words, courts can declare the validity of some law or practice, even if injunctive relief is not sought. Often, it may be the case where a plaintiff seeks both injunctive and declaratory relief. In some cases, Injunctive relief may be denied (for example, there is no showing of irreparable harm), but a declaratory judgment issues, finding that the action or law at issue is illegal.

What is the effect of a declaratory judgment? The DJA says “Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.” But merely obtaining a declaratory judgment is not self-executing in controlling the conduct of a defendant. Ignoring a declaratory judgment would not place a defendant in contempt. Rather, if the defendant does what the declaratory judgment expressly frowns upon, the plaintiff would have to seek an injunction. And, more likely than not, the plaintiff would cite the declaratory judgment as evidence for likelihood of success on the merits.

What is the preclusive effect of a declaratory judgment? The Supreme Court has not weighed in on this issue directly, though a dispute between separate opinions from Justice White and Justice Rehnquist in Steffel v. Thompson (1974) illuminates two opposite positions.

Justice Rehnquist doubts that the issuance of a declaratory judgment in the context of the validity of a state prosecution should have res judicata effect:

The Court quite properly leaves for another day whether the granting of a declaratory judgment by a federal court will have any subsequent res judicata effect or will perhaps support the issuance of a later federal injunction. But since possible resolutions of those issues would substantially undercut the principles of federalism reaffirmed inYounger v. Harris, 401 U. S. 37 (1971), and preserved by the decision today, I feel it appropriate to add a few remarks.

Though the opinion is couched in terms of the federalism concerns of Younger v. Harris, and federal courts interfering with state prosecutions, the jurisdictional implications of the Declaratory Judgment Act seem to be applicable in the civil context as well.

If the rationale of cases such as Younger and Samuels turned in any way upon the relative case with which a federal district court could reach a conclusion about the constitutionality of a challenged state statute, a pre-existing judgment declaring the statute unconstitutional as applied to a particular plaintiff would, of course, be a factor favoring the issuance of an injunction as “further relief” under the Declaratory Judgment Act. But, except for statutes that are ” `flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph . . . ,’ “Younger v. Harris, supra, at 53, the rationale of those cases has no such basis.

And in a proceeding seeking injunctive relief, the equities would have to be balanced under the traditional concerns:

A declaratory judgment is simply a statement of rights, not a binding order supplemented by continuing sanctions. State authorities may choose to be guided by the judgment of a lower federal court, but they are not compelled to follow the decision by threat of contempt or other penalties. If the federal plaintiff pursues the conduct for which he was previously threatened with arrest and is in fact arrested, he may not return the controversy to federal court, although he may, of course, raise the federal declaratory judgment in the state court for whatever value it may prove to have.^[3] In any event, the defendant at that point is able to present his case 483*483 for full consideration by a state court charged, as are the federal courts, to preserve the defendant’s constitutional rights. Federal interference with this process would involve precisely the same concerns discussed in Younger and recited in the Court’s opinion in this case.

Justice White countered, and said a declaratory judgment would be per se dispositive to decide a subsequent injunctive proceeding.

At this writing at least, I would anticipate that a final declaratory judgment entered by a federal court holding particular conduct of the federal plaintiff to be immune on federal constitutional grounds from prosecution under state law should be accorded res judicata effect in any later prosecution of that very conduct. There would also, I think, be additional circumstances in which the federal judgment should be considered as more than a mere precedent bearing on the issue before the state court.

Neither can I at this stage agree that the federal court, having rendered a declaratory judgment in favor of the plaintiff, could not enjoin a later state prosecution for conduct that the federal court has declared immune. The Declaratory Judgment Act itself provides that a “declaration shall have the force and effect of a final judgment or decree,” 28 U. S. C. § 2201; eminent authority anticipated that declaratory judgments would be res judicata, E. Borchard, Declaratory Judgments 10-11 (2d ed. 1941); and there is every reason for not reducing declaratory judgments to mere advisory opinions

In other words, if a declaratory judgment is issued finding that a defendant can’t do X, and the defendant does X, then an injunction shall issue, without question. This is in contrast to Rehnquist, who said that it is merely persuasive.

If Justice White is correct, and obtaining a declaratory judgment has automatic res judicata effect for any future injunctive relief, then the declaratory judgment seems to serve as a quasi-injunction, which can be obtained in the absence of satisfying the four traditional elements. Granted, procedurally, it would require two separate proceedings: first, obtaining a declaratory judgment, and second, seeking injunctive relief based on the declaratory judgment. But in this context, the declaratory judgment serves as a quasi-injunction, which a plaintiff can hold over a defendant’s head to strongly dissuade him from acting in conflict with the declaration.

As a practical matter, and probably for this reason, I doubt defendants would flagrantly ignore a declaratory judgment. I can’t imagine the government willfully disregarding a declaratory judgment from a court. If this is the case, then indeed the declaratory judgment serves as a backdoor, quasi-injunction, where the four factors need not be met. At some point I’ll write something more about this. If anyone is familiar with any articles on point (I’m sure there are many) please drop me a line.

A brief aside on the Declaratory Judgment Act and advisory opinions). White’s opinion  is premised on the fact that because the declaratory judgment can’t be an advisory opinion, it must have the force of law. If the declaratory judgment wasn’t preclusive, then it would be very close to an advisory opinion. Note how the introductory text of the declaratory judgment act speaks in terms of “a case of actual controversy” (it does not say “case or controversy”). It was always dubious in my mind if a declaratory judgment could be issued where there was not a live case or controversy under Article III. In the absence of a live case, it would be an advisory opinion. Courts have dismissed DJA suits because the issue was not yet ripe, but I don’t think all of the rules for Article III “Case or controversy” have been imported to a DJA.

For example, Justice Rehnquist notes in his Steffen opinion, “my reading of the legislative history of the Declaratory Judgment Act of 1934 suggests that its primary purpose was to enable persons to obtain a definition of their rights before an actual injury had occurred.” In other words, there is often no injury-in-fact, a key element necessary under Lujan, present in Declaratory Judgment Actions).

Also relevant is Justice Frankfurter’s opinion in Skelly Oil (1950), noting that the DJA did not expand Article III jurisdiction:

Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff’s right even though no immediate enforcement of it was asked. But the requirements of jurisdiction—the limited subject matters which alone Congress had authorized the District Courts to adjudicate—were not impliedly repealed or modified.

The DJA is still subject to the requirements of Article III, and the jurisdictional limits imposed by statute. This confirms my belief that the DJA, more often than not, results in the issuance of advisory opinions. To use Frankfurter’s example, a court under the DJA could interpret a contract even if the parties seek no damages or injunction. There would not be a live case or controversy, and it seems to me to be an advisory opinion.

H/T Paul Salamanca for helping me think this through. 

Cross-Posted at Law & Liberty

I’e previously blogged about a Circuit Split regarding whether RFRA can be raised as a defense in a private cause of action, perhaps under Title VII or other anti-discrimination law. There is currently a Circuit Split over this issue (discussed in this note in the Virginia Law Review).

This topic came up at several junctures during oral arguments in Hobby Lobby.

Justice Kagan posed the question of whether a religious objection could be raised to a sex-discrimination claim?

Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

Clement does not want to go there, and insists that the court can  “separate the sheep from the goats.” In other words, not toss out discrimination claims (sheep), but toss out contraceptive mandates (goat).

MR. CLEMENT: Well, I don’t say that. I think Congress said that. But to be as responsive as I can to your question, the parade of horribles that the government offers you ought to sound familiar, because if you look at that parade of horribles ­­ Social Security, minimum wage, discrimination laws, compelled vaccination ­­ every item on that list was included in Justice Scalia’s opinion for the Court in Smith. And Justice O’Connor responded to that in her separate opinion and she said, look, you’ve got to trust the courts; just because free exercise claims are being brought doesn’t mean that the courts can’t separate the sheep from the goats.  ­­

In a later answer, Clement focused on the nature of the compelling interesting–the government would have a compelling interest to prohibit gender discrimination, but not to mandate contraceptives.

And I don’t think applying the test to recognize this case, where I think the government has an incredibly weak case on compelling interest and least restrictive alternatives, which they almost don’t want to talk about at all, is going to endanger any other statutes. And if I could talk about specific ­­

Clement repeats this point much later, in the context of U.S. v. Lee, and argues that it would be really hard to bring a claim to exempt oneself from taxes.

And I think Lee does stand for the proposition that in the tax context, it’s going to be very hard for somebody to bring a claim that satisfies even the demanding 2compelling interest, least restrictive alternative test.

As Alito questions, there have been very few challenges to minimum wage laws.

JUSTICE ALITO: Well, could I ask you this, Mr. Clement. In ­­ in all the years since RFRA has been on the books, has any of these claims involving minimum wage, for example, been brought and have they succeeded?

Clement replies that “very few have succeeded.” Did some of these win??

MR. CLEMENT: Justice Alito, very few of these claims have been brought. Very few of them have succeeded, and that’s notwithstanding the fact that all of these statutes we’re talking about apply to employers generally.

Though Kagan contends that if Clement wins, “religious objectors [would] come out of the woodwork.”

That if your argument were adopted and there was a strict scrutiny standard of the kind that usually applies and a least restrictive alternative requirement, then you would see religious objectors come out of the woodwork with respect to all of these laws. And because you say that there ­­ and I think this is absolutely right when you say it ­­ that you ­­ you cannot test the centrality of a belief to a religion, you cannot test the sincerity of religion. I think a court would be, you know ­­ their hands would be bound when faced with all these challenges if your standard applies.

Also, in a related context, Clement distinguished between employment discrimination and and denying someone coverage of contraceptives, with respect to burdens to third parties.

Now, each of those has a burden on third parties, but I would respectfully suggest they’re different. In the case of the employee who’s been subject to racial discrimination, even if they can get another job, that racial discrimination is a unique injury to them that you can’t remedy unless you tell the employer, don’t discriminate on the basis of race. Now, in the context of the conscience clause, if a woman can’t get an abortion from her preferred provider, that’s surely a significant burden on her. But we don’t view that as trumping the conscience clause, because she can get the abortion through another mechanism.

Verrilli commented on whether Title VII can be avoided if the government could not justify its compelling interest:

And I ­­ and I do think, if I could, with respect to this issue of whether there are exemptions that defeat a compelling interest, that I submit would be a very dangerous principle for this Court to adopt in the form that my friends on the other side have offered it, because not only would you then be in a position where it would be very hard to see how Title VII enforcement could be justified by compelling interest in response to a RFRA objection, ADA enforcement, FMLA enforcement, all kinds of things. And I do think ­­

But RBG cut him off and said that RFRA wouldn’t apply to Title VII.

JUSTICE GINSBURG: Title VII was passed before 1993, so it wouldn’t apply ­­ RFRA wouldn’t apply to Title VII.

That isn’t how every Court has read it. Though, then-Judge Sotomayor dissented from a Second Circuit decision holding that RFRA “does not apply to disputes between private parties.” Though the government disagreed with Sotomayor, and conceded this position.

GENERAL VERRILLI: Well, I think ­­ with all due respect, Justice Ginsburg, I think you could claim a RFRA exemption from Title VII. And the problem here would be that ­­ and I think one of the things that’s significant about the position that my friends on the other side are taking here, is that with respect to exemptions, for example, from the Title VII requirement against discrimination on the basis of religion and hiring, Congress made a quite clear judgment to provide a very narrow exemption: Churches and religious educational institutions and religious associations, and that’s it. Nobody else can claim an exemption under Title VII.

I don’t know how you can take the position that RFRA would not modify Title VII. It purported to do just that. Maybe the compelling interest of eliminating race and sex discrimination would override any religious belief. But the claim must be stated.

Justice Scalia seems to suggest an exemption from Title VII under RFRA is possible:

JUSTICE SCALIA: Except that they passed RFRA after that. That made a lot of sense. But the question is they passed RFRA after that.

Even though Arizona’s SB 1062 failed, and Elane Photograph is only about compelled speech, sooner or later we will see a conflict of RFRA and an anti-discrimination law.