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At NLJ, Tony Mauro quotes Professor Amanda Frost, who posits that RBG’s statement about abortion is “a single sentence and a statement of fact,” and was not “a decision as to whether the law is or is not a health measure or an undue burden.” Read in the context of the question asked, and the answer provided, I disagree.

Here is the exchange:

JR: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

RBG: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. 

Jeff Rosen asks how can “advocates” (those arguing before the courts) make sure that “reproductive choice is protected.” Phrased differently, Rosen is asking how constitutional rights, specifically, the right to access an abortion, can be protected by “advocates.” Rosen then asks if the legislatures can be trusted to “protect” “access to reproductive choice.” Or phrased differently, if the legislatures can be trusted to guarantee certain constitutional rights. The question was geared directly at whether legislatures are taking steps to ensure constitutional rights are protected. It was a very finely worded question–and he was clearly baiting RBG to comment on a recent spate of abortion laws passed in several red states.

What does Justice Ginsburg answer? “How could you trust legislatures in view of the restrictions states are imposing?” In the context of Rosen’s question, she is speaking directly to whether you can trust states to not impose limits on “access to reproductive choice.” This much is clear.

She continues, “Think of the Texas legislation that would put most clinics out of business.” Read in isolation, this can be seen as a statement of fact–as a result of the Texas law, many clinics will go out of business. But, in the context of her previous sentence, that isn’t the import of her answer. In the context of her answer, the fact that the law passed by Texas would put clinics out of business is proof they can’t be trusted to protect “access to reproductive choice.” She was supplying an example to Rosen’s questions about state legislatures that can’t be trusted to protect access to abortions.

So yes, if you read the single sentence about “the Texas legislation that would put most clinics out of business,” she is making a statement of fact. But if you read the previous sentence, and the question posed before, the context of her views becomes much more clear. She isn’t merely stating as a matter of fact that clinics will close, but that the Texas legislature can’t be trusted because their legislation would have that effect, and limit “access to reproductive choice.”

All of this discussion reaffirms my belief that Justices and Judges should not be speaking about such matters, tip-toeing ever so close to cases that are still pending. I think Justice Scalia was wrong to make statements about the pledge of allegiance, but comported himself properly by recusing. I would expect the same of RBG, but I am very doubtful.

I would not be surprised if the Texas SG files a motion for her recusal. Imagine during oral arguments, Justice Ginsburg asks the Texas SG something to the effect of, “Counsel, I recognize that there are certain reasons put forth by the Texas Legislature as to how this protects the health of the mother, but I find that they are pretextual, and with strict scrutiny should be rejected. Isn’t it true that the true purpose of this law was to make it harder for women to access abortions by shutting down many clinics?” Although this would never happen, the response should be, “with respect Justice Ginsburg, it seems you have already answered that question in The New Republic.”

The Times reports on an inadvertently leaked set of documents from the Republicans Governor Association showing all of the corporations contributing money into the state governors.  They write this sentence, but I think it proves a very different, and even more important point than who donates to whom:

With Congress producing so little legislation, governors’ offices have become attractive targets…

Yes! That’s a good thing. I’ve written for some time that one of the few ways to eliminate rent-seeking in Washington is to eliminate the ability of Congress to pass laws. If Congress can’t pass laws–either through the doctrine of enumerated powers, or as it were gridlock–there is less incentives to rent-seek on the federal level. This shifted dynamic forces companies to instead rent seek at the local level. This is also good, as it is much tougher to rent-seek 50 state houses and legislatures, than a few members in Washington. Changing policy at the local level is better on most levels. These laws can only affect a single state at a time.

This, in part, is one way to understand the impact of the 17th Amendment and the direct election of Senators–it made rent seeking much easier. As I explain in a new article that is forthcoming in the NYU Journal of Law & Liberty (any day now), the 17th Amendment shifted the locus of rent seeking from state houses to Washington :

When the federal government assumes various aspects of the police power once reserved for the states—thereby diminishing our vertical federalism—rent seeking becomes much easier. It takes much less time, effort, and money to lobby and petition a single government in Washington that can easily impose nationwide rules, than to lobby in 50 state capitols to achieve rules that can have an impact within one state’s borders. In this way federalism increases the cost of rent-seeking. It makes capture more difficult, and diminishes the impact of special interest legislation.[1] Federalism also permits states to engage as laboratories of democracy, to experiment in different forms of government.[2]

[1] Professor Todd Zywicki has made similar arguments about the 17th Amendment. By taking the state legislatures out of the public choice equation, special interests will find it more worthwhile to petition Senators in Washington who can impose one-size-fits-all rules nationwide. See Todd Zywicki, Repeal the Seventeenth Amendment, National Review Online (Nov. 15, 2010), http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki. In contrast, Professor David Schleicher argues that the 17th Amendment improved public choice politics, as it removed the state legislatures from the corrupting influences of rent seeking. See David Schleicher, The Seventeenth Amendment and Federalism in an Age of National Political Parties, 65 Hastings L.J. 1043 (2014).

[2] New State Ice Co. v. Liebmann, 285 U.S. 262 (1932) (Brandeis, J., dissenting).

Today at 11:45 I will be speaking to the Baylor Federalist Society about President Obama’s use of executive power. While the talk was originally going to focus on Noel Canning, I have since expanded it significantly to cover the myriad new war powers issues. If you are in the area, please stop by.

Tonight at 4:30 p.m., I will be speaking to the Rice University Federalist Society Chapter, and leading a Supreme Court Roundup. The event will be held in Room 1046 in Duncan Hall. Rice is the only undergraduate FedSoc chapter in the country, and they have done an impressive job at organizing several events last year. I will be the kickoff speaker for this semester.

If you are in Houston, please stop by. I’ll cover, in no particular order, Burwell v. Hobby Lobby, McCutcheon v. FEC, Town of Greece v. Galloway, NLRB v. Noel Canning, Riley v. California, and McCullen v. Coakley.

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

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.

This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.

This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”

This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

…

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.

Here is a picture of the Odd Fellows building:

This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.