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In December, the Mayor of Houston decided to extend benefits to city employees who are in same-sex marriages. A suit was filed, claiming that the Mayor’s decision was foreclosed by the Texas Constitution, which prohibits the recognition of same-sex relationships. The Mayor countered that following Windsor, the Texas Constitutional provision was void, and she was free to extend the benefits. The plaintiffs challenged the Mayor in state court, alleging a violation of many provisions of state law. (Taxpayer standing in Texas is much broader than under Article III). A state family judge entered a TRO. The complaint only mentioned, in passing, a provision of state law that requires the Mayor to comply with federal law. On this basis, the City removed the case to federal court. Last week, Judge Lee Rosenthal in the Southern District of Texas remanded the case, finding no federal question.

The motion to remand does not turn on the substantive issue of whether the United States Constitution requires state law to recognize same-sex marriages and grant related benefits. The

issue is instead straight out of a law school federal courts class. The issue is whether this court has federal subject-matter jurisdiction necessary to decide the substantive issue. The complaint filed in state court does not raise a claim under, or refer to, federal law. Instead, the complaint alleges that Mayor Parker’s directive and its implementation violate Section 6.024 of the Texas Family Code; Article II, Section 22 of the Houston City Charter; and Article 1, Section 32 of the Texas Constitution. The defendants argue that removal is proper under 28 U.S.C. § 1441(a) because Section 22 of the Houston City Charter refers to federal law, and because the plaintiffs’ claims necessarily raise a substantial federal question. The plaintiffs deny that the federal law reference in the City Charter is sufficient to establish jurisdiction or that the complaint otherwise necessarily raises federal issues.

 

Jack Goldsmith has a fascinating post, positing a theory why the President has sent a letter to Congress after each specific military action in Iraq (this pattern had also crossed my mind, but I didn’t make the connection):

Second, the administration is trying to circumvent WPR time limits on it deployment of troops and uses of force in Iraq.  (NSC spokeswoman Caitlin Hayden recently dodged whether the WPR applied to the recent air strikes and related actions in Iraq.)  What follows is my analysis of this second possibility.

Simplifying somewhat, Section 4(a) of the WPR requires the President to inform the Speaker of the House and the President pro tempore of the Senate about the scope and legal basis for the introduction of U.S. armed forces into hostilities and related situations.  Section 5(b) then states that within 60 (or some circumstances 90) days, “the President shall terminate any use of United States Armed Forces with respect to which such report was submitted,” absent appropriate congressional authorization.  The duty to terminate hostilities is tied to any use of the armed forces with respect to which the original report was submitted.  If the use of the armed forces with respect to which the report is filed is narrowly defined, then arguably no duty to report materializes if the discrete use of the armed forces related to the report terminates before the 60 days.

In other words, each strike is a different action, that starts a new 60 day clock.

So for example, the administration might argue that the use of force with respect to the Mount Sinjar siege (the topic of the August 8 letter) is over and thus no clock is running with respect to that use of force.  And the same might go for the use of force with respect to the Mosul Dam that was the topic of the August 18 letter.  As long as that use of force is over within 60 days after it began, the argument goes, the clock stops with respect to that action even though operations continue in Iraq.  On this logic, if the President reports to Congress about discrete missions in Iraq, and if each discrete mission lasts less than 60 days, the President can use force in Iraq indefinitely without triggering Section 5(b).

This strained and bizarre interpretation would allow the President to flout the 60 day clock by treating each attack as a separate “original report.”

Discrete mission reporting to avoid WPR time limits fits reasonably well with the text of the WPR, though of course not with its spirit.  If this is what the administration is up to, then it has found a clever way – in an era of nimble, distinct, drone-dominated missions – to gut what little may be left of the WPR’s time limits.  (Discrete reporting of this sort might not be unprecedented.

This is even worse than Harold Koh’s redefinition of “hostilities.”

As I once noted, “President Clinton submitted four WPR reports to Congress over a seven-month period every time the U.S. had a significant air strike in Bosnia,” though we don’t know if this was done to skirt the WPR, or under what theory.)  Moreover, discrete reporting is not the only way the President might avoid a duty to terminate the use of U.S. armed forces in Iraq under Section 5(b).  He might claim, as he controversially did in Libya, that the armed forces deployed in Iraq are not engaged in “hostilities” under Section 4(a) and thus that the duties of Section 5(b) are not in play.  (This was a bad argument in Libya but would beworse as applied to air strikes in Iraq (see addendum.))  Or the President might claim that he reported to Congress under Section 4(b) or (c), not 4(a), and thus has no duty to terminate the use of U.S. forces under Section 5(b).  (Again, probably not a great argument for all of the current uses of force in Iraq.)

In any event, we have now hit the 60-day mark from the first attack on Baghdad.

The President’s legal team is apparently already using one of these legal rationales.  The first Iraq WPR, concerning the troops sent to Baghdad, was sent to Congress in June, more than 60 days ago, and I believe the troops are still in Baghdad to defend the embassy.  Assuming someone inside the Executive branch is paying attention to this issue (no one in Congress seems to have noticed), the legal rationale for why the Section 5(b) termination duty has not been triggered is probably that the troops in Baghdad are not engaged in hostilities and do not face an imminent threat of hostilities.  This argument is plausible in the Baghdad context but is much harder to make with respect to the bombing (and Special Operations Forces) north of Baghdad.  The clock for those bombings and those forces started ticking in early August, and in that context the President may have to rely on the discrete reporting argument outlined above to skirt Section 5(b).  We probably won’t know the administration’s legal theory in that context until early October, when the sixty-day clock on the August uses of force in Iraq ostensibly expires – assuming, that is, that the President has not satisfied the WPR in the interim by winning congressional authorization (or an extension of time) for the Iraq deployment.

Tick Tock.

At its core, the debate in NFIB v. Sebelius and the individual mandate boiled down to two conceptions of liberty–freedom from the government, or freedom of financial concerns involving health insurance costs.

For the government, Solicitor General Verrilli argued that the Affordable Care Act promotes liberty. No longer needing to fear what will happen to you if you get sick, makes you more free. In short, with government aid, you are now free from uncertainty. As I explained in Unprecedented, this was a message shared by Verrilli, the President, and many other supporters of the law:

“There is an important connection, . . . ” he began, then paused for emphasis. “A profound connection, between that problem and liberty. And I do think it’s important that we not lose sight of that. . . . In a very fundamental way, this Medicaid expansion [pro- tects] individual liberty and dignity interests.” The relationship between health security and liberty was a ser- mon that progressives had preached throughout the enactment of the ACA.

Upon signing the bill, President Obama declared that it enshrined “the core principle that everybody should have some basic security when it comes to their health care.” On March 22, 2010, minutes after the midnight vote in the House that passed the ACA, a jubilant Speaker Nancy Pelosi beamed that “this bill tonight [cre- ates the] opportunity for affordable health care for all Americans [so they] have the freedom to have a healthier life [and] to have the lib- erty to pursue their own happiness.” Pelosi was channeling Thomas Jefferson’s eternal ode to freedom from the Declaration of Indepen- dence, which recognizes our “inalienable rights of life, liberty, and the pursuit of happiness.”

President Obama delivered a similar message in his second inaugural address, also evoking Jefferson.“That they are endowed by their creator with certain unalienable rights, and among these are life, liberty, and the pursuit of happiness. Today we continue a never-ending journey to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they’ve never been self-executing. That while freedom is a gift from God, it must be secured by his people here on earth.” It is the people, through the collective, not the individual, who must secure these rights. This was President Obama’s modern liberty, and Verrilli was its messenger to the Court.

But, on the other hand, Paul Clement argued that the Affordable Care Act itself was the threat to liberty. Rather than fearing uncertainty, opponents of the ACA feared the government, and coercion itself. Also from Unprecedented:

Paul Clement rose to have the last word and provided an impromptu rebuttal that offered a very different vision of what individual liberty means.

“Let me just finish by saying I certainly appreciate what the solic- itor general says, that when you support a policy, you think that the policy spreads the blessings of liberty.” After three long, hard-fought days of argument, Clement would have the last word on liberty.

“But I would respectfully suggest that it’s a very funny concep- tion of liberty that forces somebody to purchase an insurance policy whether they want it or not.” This was not the individual liberty of Justice Kennedy.

Clement echoed a point he had made in his brief: “The Constitu- tion protects and promotes individual liberty, while the mandate’s threat to liberty is obvious. The power [of the federal government] to compel a person to enter into an unwanted commercial relationship is not some modest step necessary and proper to perfect Congress’s authority to regulate existing commercial intercourse. It is a revolu- tion in the relationship between the central government and the gov- erned.” Such a conception of freedom for society as a whole comes at the expense of liberty for the individual. “

With Halbig, it seems we have returned to the same debate. Nick Bagley explains that if Halbig is successful, up to 8 million people will be free from the Affordable Care Act’s mandate. But, what does it mean for them to be free? Which conception of liberty are we talking about?

Jon Adler and Michael Cannon seem to be using the Clement-version of liberty–freedom from the government itself.

For the challengers, that’s a good thing. In Michael Cannon’s words, “a victory for the Halbig plaintiffs would free more than 8.3 million residents” from the mandate. The pending Supreme Court petition makes the same point:

[B]y purporting to make a credit “allowable” in states served by HealthCare.Gov, the IRS Rule reduces the number of people in those states exempt from the individual mandate penalty. Now ineligible for exemptions, those individuals are no longer free to forgo coverage … .

Bagley focuses on the latter vision of freedom–freedom from financial harm.

Would you really have more freedom if you lost the tax credit and, because you could no longer afford insurance, you were exempt from the mandate? No doubt, some people would say yes. They bristle at the mandate and don’t value insurance very much—even cut-rate insurance. They’re also pretty cavalier about asking the rest of us to pick up the tab if they fall ill or have an accident.

Many near-poor families, however, would find it liberating to get cheap coverage, even if they were required to do so. As Bill has eloquently observed, health insurance offers a kind of freedom, too. It’s the freedom to quit that stultifying desk job that you stay in only because of the health benefits. It’s the freedom not to have to choose between making rent and buying your kid’s asthma medication. And it’s the freedom not to fear that a car accident or a cancer diagnosis might bankrupt you.

Yes, if the Halbig challengers prevail, millions of people would be exempt from the mandate penalty. But that just means they’d be free to decline coverage that, without tax credits, they can’t afford anyhow. What kind of freedom is that?

Bagley alludes to Justice Kennedy:

The argument is tailor-made for Justice Kennedy, who cares so deeply about personal liberty that whole books have been written about it.

We should recall that in NFIB, Kennedy took the classical, rather the active view of liberty.

This fall, I will be speaking in 13 states on various topics, including Hobby Lobby and Religious Liberty, Noel Canning and Executive Power, 3D Guns and the 2nd Amendment, and Judicial Decision Making. My calendar is just about booked, so if you are interested in inviting me to your school, please drop me a line about the spring semester. Also, if you are in any of these places, please drop by and say hi!

1. 9/4/14 at 12:15 – Texas Bar – Advanced Civil Appellate Practice Course. I will be giving a talk on the lunchtime panel on judicial decision making, alongside Justice Eva Guzman and Lee Epstein.
2. 9/11/14 at 12:00 – Michigan State University College of Law Federalist Society
3. 9/11/14  at 5:30 p.m. – Grand Rapids Federalist Society Chapter
4. 9/15/14 at 12:20 p.m. – (early) Constitution Day Celebration at South Texas College of Law
5. 9/16/14 at 5:00 p.m. – Guest Lecture in David Bernstein’s ConLaw Class, George Mason University School of Law (not too long ago I sat in that class).
6. 9/17/14 at 12:00 p.m. – American University Washington College of Law Federalist Society Chapter. I will be tag-teaming with Steve Vladeck to discuss “The Separation of Powers Heading into—and After—the Midterms.”
7. 9/18/14 at 12:00 p.m. – University of Maryland School of Law Federalist Society Chapter
8. 9/18/14 at 2:30 p.m. – University of Baltimore School of Law Federalist Society Chapter
9. 9/23/14 at 12:10 p.m. – Ohio State University College of Law Federalist Society Chapter
10. 9/30/14 at 11:45 a.m. – Baylor University College of Law Federalist Society Chapter
11. 10/9/14 at 11:55 p.m. – Georgia State University College of Law Federalist Society Chapter
12. 10/9/14 at 2:30 p.m. – University of Georgia School of Law Federalist Society Chapter
13. 10/10/14 – Junior Federal Courts Workshop – University of Georgia
14. 10/20/14 at 5:30 p.m. – Philadelphia Federalist Society Lawyers Chapter
15. 10/21/14 – Forbes 30 under 30 Summit
16. 10/23/14 at 12:00 p.m. – U.C. Davis Federalist Society Chapter
17. 10/24/14 at 12:00 p.m. – Sacramento Federalist Society Chapter
18. 10/28/14 – Memphis Federalist Society Chapter
19. 10/28/14 – University of Little Rock, Arkansas, Federalist Society Chapter
20. 10/30/14 – University of Indiana, Bloomington Federalist Society Chapter
21. 10/30/14 – University of Indiana, Indianapolis, Federalist Society Chapter
22. 10/31/14 – Indianapolis Lawyers Federalist Society Chapter
23. 11/4/14 – University of Houston Federalist Society Chapter
24. 11/6/14 – University of Chicago Law School Federalist Society Chapter
25. 11/7/14 – Loyola Chicago Constitutional Law Colloquium

 

Building on the success of the 2013 and 2014 Virtual Supreme Court project, the Harlan Institute and The Constitutional Sources Project (ConSource) will host the third annual Virtual Supreme Court competition. This competition offers teams of two high school students the opportunity to research cutting-edge constitutional law, write persuasive appellate briefs, argue against other students through video chats, and try to persuade a panel of esteemed attorneys during oral argument that their side is correct. This year the competition focuses on Zivotofsky v. Kerry, exploring whether the President’s power to diplomatically recognize foreign nations is subject to control by Congress.

The competition is endorsed by the Center for Civic Education’s We The People Program. Robert Leming, Director of the We the People Program found that the “Competition is relevant for high school students studying the Constitution and Bill of Rights.”

ConSource Executive Director Julie Silverbrook believes “the Competition is an excellent opportunity for high school students to develop core civic and constitutional literacy skills. Students are required to read the text of the Constitution, explore the history behind a contemporary constitutional dispute, and construct persuasive arguments. We know that experiences like the Virtual Supreme Court Competition leave a lifelong impression on participating students and encourages them to stay informed and engaged throughout their lives.”

The members of the grand-prize winning team, the Solicitors General of FantasySCOTUS, will receive a free trip, including airfare and one night of hotel accommodations, to Washington, D.C. to attend the ConSource Constitution Day celebration in September 2015. Winners must be at least 18 years old at the time of the trip (it is no problem if the student has already graduated high school in September of 2015, so long as he or she was in high school during the competition). This offer is open to U.S. residents only. Members of the runner-up team will each receive an iPad Mini. Members of the third and fourth place teams will each receive a $100 Amazon.com Gift card.

Josh Blackman, President of the Harlan Institute, champions the Virtual Supreme Court, which provides an “unprecedented opportunity for high school students to engage in the highest level of appellate advocacy. They research the issues, write briefs, and make oral arguments before our judges. The strong caliber of the winning teams last year really impressed us. We can’t wait to see how the teams perform this year!”

 Teachers interested in participating should sign up at www.HarlanInstitute.org, add an account, read the problem, and get started!

Please send any questions to [email protected] or [email protected].