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You can listen here. I was joined by Jonathan Allen (Bloomberg News), Norm Ornstein (American Enterprise Institute), and Katrina vanden Heuvel (The Nation).

Andy Koppelman has a new piece on SSRN discussing the Court’s denial of certiorari in Elane Photography v. Willcock. Here is the abstract:

One of the least interesting legal phenomena is a denial of certiorari by the Supreme Court. The Court has absolute control of its docket, it can decline to hear a case without explanation, and its denial of review is legally meaningless and has no precedential effect. However, the recent cert. denial in Elane Photography v. Willock, a case that presented a three-way collision between gay rights, religious liberty, and free speech, is a revealing window on the limits of constitutional lawmaking. The real issue in the case, the question of how gay people and religious conservatives can live out their ideals, was obscured by weak free speech claims. The Court was right to turn the case away.

The reconciliation of gay rights and religious liberty is an important and pressing question. But the cert. petition left it out of consideration. Instead, that question was displaced by weak free speech claims. This paradoxically meant that the Court could not hope to do justice to any of the real issues. The case as presented in the petition for cert. was a zombie: still moving, but without its soul.

I came to a somewhat similar conclusion. I thought that this was a bad vehicle as the cert petition only relied on the compelled speech issue, and did not discuss the religious liberty issues (though those issues were not appealed in the case). In any event, the Court denied review, and  only vaguely alluded to the issue in Hobby Lobby. So, we’ll have to wait and see.

Today at 2:00 ET/1:00 CT/11:00 PT, I will be on the nationally syndicated public radio program, “To The Point,” talking about Speaker Boehner’s lawsuit against President Obama’s executive action. As I see it, there are three key issues I will discuss: is there standing, has the President violated the “Take Care Clause,” and if so what is the remedy. You can listen online here, or on the radio nationwide.

You can ready my earlier posts on this topic here, here, here, and here. Also WSJ Law Blog quotes Tarah Grove and Neal Devins on their recent Cornell Law Review Article. And more from Michael Sterns at Point of Law.

In Edwards v. District of Columbia, the D.C. Circuit, per Judge Janice Rogers Brown, found unconstitutional a D.C. law that required tour guides to take a 100-question multiple choice test, and pay a licensing fee. What was most striking about the opinion, was the burden it placed on the government to assert a valid rationale for the law. In the context of the First Amendment, this is the standard course of business. The government must justify a burden on free speech.

Yet, at heart, this case involved an occupational licensing regime that involved people speaking. Most occupational licensing tests are subject only to the feckless rational basis test. Under this regime, the government bears no burden, and the plaintiff must negative every conceivable basis for the law–even those the court creates ex post.

There is an odd symmetry. If an occupational licensing law is viewed as an abridgment of free speech, the government will almost always lose. But, if the occupational licensing law focuses on a calling other than primarily speaking, the government will always win. If this case was framed, not as a Free Speech case, but as an economic liberty case under existing precedents, none of the burden would have been placed on the government. Two occupational licensing regimes, one involving free speech, one arguably not involving free speech, are worlds apart.

This does give some teeth to the theory that the First Amendment can, in some contexts, do what the Supreme Court will not do through the Due Process Clause.

Update: The Washington Post Editorial Board has come out swinging in favor of this ruling:

There is no question that the city has a stake in safeguarding an industry that brings some 15 million tourists to the city every year and is responsible for more than 66,000 jobs. But sightseeing services are already required to get a license to do business in the city. Market forces, including the proliferation of consumer review Web sites such as Yelp and TripAdvisor, provide an incentive for companies to offer good service. The requirement to pass a test not only discouraged competition but also gave rise to a parasite industry that profited from helping people pass, which in turn had no proven connection to the quality of guiding. It would be far better, as the appeals court suggested, for the city to have regulations aimed at unscruplous practices and a voluntary accreditation system for guides interested in being listed as city-approved. A spokesman for the Department of Consumer and Regulatory Affairs told us that officials are examining the ruling but are also looking at the possibility of narrower regulations.

We understand — and appreciate — the value of a well-informed tour guide who is able to transport visitors to a different time. We value even more highly the right to speak without paying $200 for a license.

In any event, Judge Brown’s opinion is well worth reading. Here are some of the highlights.

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The New York Times Editorial Board came out swinging in favor of granting SCOTUSBlog a press pass. They cited one of my posts on the matter concerning the merits of the Standing Committee’s arguments:

These arguments are tenuous at best. Litigating is not lobbying, but, even so, the committee has credentialed, among others, foreign journalists fromstate-runpublications whose countries routinely lobby.

I’m the “best” link. I’ll reiterate my point. I think the rules, as written are asinine, and the government should not be in the business of selecting who is, and is not the media by such arbitrary measures. I also think SCOTUSBlog should get its pass. With that being said, if taken literally, the rules provide a reasonable basis to deny SCOTUSBlog the permit.