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Si Lazarus and Elisabeth Stein link to a CRS report concerning the lawfulness of the Administration’s decision to twice delay the employer mandate. They concluded that there is “no legal basis” to a challenge to the delay. I think the report says a lot less. The first 13 pages of the report, titled “A Primer on the Reviewability of Agency Delay and Enforcement Discretion,” are background about the Court’s precedents concerning delays of agencies meeting statutory deadlines. The actual analysis of the ACA takes up three paragraphs.

First, it finds that the IRS’s 2013 notice would be considered a “guidance document.”

For example, on July 3, 2013, the Internal Revenue Service (IRS) issued Notice 2013-45 (Notice), stating that the IRS would not enforce the “employer mandate” of the ACA during 2014 in order to allow for “additional time for input from employers” on how the law can be effectively implemented.76 The Notice further encourages employers to “voluntarily comply with the information reporting provisions.”77 The IRS promulgated the Notice without undergoing notice and comment rulemaking procedures. However, the IRS does not appear to impose a new legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not enforce these provisions against employers during 2014.78 A court would likely find that such a statement is a guidance document, because it merely notifies the public on how the agency plans to perform a discretionary function—enforcement discretion.79

However, in other circumstances, an agency’s declaration of a delay or enforcement policy could require notice and comment procedures. In February 2014, the IRS announced final regulations implementing the employer mandate from the Affordable Care Act.80 In those regulations, the IRS provided for “transition relief” from the employer mandate tax for certain employers—that is, qualifying employers would not have to pay the tax.81 In order to be eligible for transition relief, employers must certify that they have met certain requirements established by the agency.82 Here, because the IRS is requiring employers to conduct a specific activity in order to be eligible for the transition relief—that is, provide certification—the transition relief is imposing a legal obligation on a party in order to qualify for a specific form of tax treatment. It would appear that an agency taking this approach to delaying a statutory provision would have to use informal rulemaking procedures because the agency would impose a legal obligation on a party, who wanted to benefit from the delay.83

Under the other form of agency delay—that is, where an agency fails to take a discrete action by a statutory deadline—no rulemaking is required. Often the agency has simply not been able to accomplish the required action within the time provided by Congress. In this type of situation, the agency has not taken any action; therefore, no rulemaking procedures are required. However, as mentioned above, an agency may be subject to a suit by a party seeking to compel the agency to take action.84

On Friday, October 24, I spoke to the Sacramento Federalist Society about the interplay between Gridlock and Executive Power. I was warmly introduced by Paul Beard of the Pacific Legal Foundation. Thank you to everyone in Sacramento, including chapter President Ashlee Titus, for making the event a great one.

One of the themes that Joan Biskupic’s book highlights well is how the more senior Justices perceive the newest two members–Justices Sotomayor and Kagan. In lighthearted remarks at Yale Law School that veered into insight, Justices Thomas, Alito, and Sotomayor shed some light on how the Justices perceive the latter.

First, Justice Sotomayor explained that she was unable to keep a beat and dance, and started taking salsa lessons when she was 50. You may recall that at the end of her first term, she asked all of the Justices to dance salsa with her. This didn’t go over so well. But at the end of her remarks she had a very witty quip.

“I can’t keep a beat to save my life. I totally cannot keep a beat to save my life. But I have a facility that some of my colleagues find very strange. I can follow.”

Justice Thomas interjected, with his booming laughter, “That’s good.”

Justice Alito, with perhaps the best line of the night, said, “It’s a revelation to know that Sonia likes to follow. I think we are going to start dancing in the conference room.”

Second, Justice Alito was asked to describe traits he admires about Justice Sotomayor. Again, his answer in a whimsical fashion veered back to her strong views.

SA: These are traits i admire. Sonia is very independent. She is very, very, very thorough in her preparation, not only on the merits cases, but on the hundreds of cert petitions that we discuss every term. She is very strong in her views. She doesn’t give up on the rest of us. [CT is chuckling] Even when she sees we are going off, the majority is going off in the wrong direction, she throws up her hands up and says, “what can I do.” She has hope that she can convince us. She makes good arguments. Sometimes she succeeds.

Justice Sotomayor remarked, “I’ve been called incessantly optimistic.”

Again, with his booming laughter, Justice Thomas pipes up: “Goodness she never gives up.” Mimicking Sotomayor, he says, “Just relist that, I’m sure I can get one of you.” I can imagine that is a common occurrence at conference–and could be a contributing factor to the new relist policy.

Third, all of the Justices were asked what their greatest strengths and weaknesses were. Justice Sotomayor admitted that her greatest weakness was that she gets “oblivious” to the world around her during arguments. Though, she suggested that she is trying to get better.

When I’m involved in an argument I become oblivious to the world around me. And I’m just trained in on the person who I am engaging with. I am seeking an answer. To some it seems I am being combative when I really just searching for an answer. And that has held me in bad stead. And I think it still does. And I try harder as each year passes to correct some of that.

I’m working on a project that counts the number of times a Justice interrupts another Justice from 2010-2014. I may be able to provide metrics to the progress.

Finally, as a way to remind us that “race matters” (in case we didn’t get the picture from reading her Schuette dissent), Justice Sotomayor provides a hierarchy of Latin American dance skills.

SS: Among Hispanic men, the best dancers in terms of keeping a beat are Dominicans. The worst are Cubans because they take little steps.

CT: That’s profiling

SS: It is. But it proves itself right a lot. Cubans have these very tight little steps. I can never dance with a cubans. Puerto Ricans I can dance with too.

CT: You are going to be in trouble with the Cubans.

SS: I know.

You see, race does matter! Though any effort to rearrange dance cards in the middle of a party may run afoul of the political process theory.

(All of these are my own transcriptions–there was no transcript I could find–so all errors are my own).

Yesterday I explained how New York and New Jersey are somewhat constitutionally restrained from enacting Ebola quarantines that are at odds with the President’s policy. Under the Obama Administration’s view of the Supremacy Clause in Arizona v. United States, the states cannot take actions that frustrate federal policy. Even if the state thinks they are helping (and objectively they are), the United States may find the assistance counter-productive, and thus the actions are pre-empted under the Supremacy Clause.

Today, the Times reports that the White House is pressuring New York and New Jersey to reverse their mandatory policy of quarantining Ebola patients.

The Obama administration has been pushing the governors of New York and New Jersey to reverse their decision ordering all medical workers returning from West Africa who had contact with Ebola patients to be quarantined, an administration official said.

But on Sunday both governors, Andrew M. Cuomo of New York and Chris Christie of New Jersey, stood by their decision, saying that the federal guidelines did not go far enough.

This is a repeat of Arizona SB 1070. Arizona said the federal government was not going far enough in its protection of the borders, so they decided to enact additional laws that required people show ID to ensure their legal status. (I’ll put asides any 4th Amendment or Equal Protection issues, as this was a pre-enforcement facial challenge, not as applied). The Obama Administration took Arizona to Court. Will the same fate lie for New York and New Jersey. Probably not. But, there will be “pressure” to “rescind the order.”

Ever since Mr. Cuomo, a Democrat, and Mr. Christie, a Republican, announced the plan at a hastily called news conference on Friday evening, top administration officials have been speaking with Mr. Cuomo daily and have also been in touch with Mr. Christie, trying to get them to rescind the order.

Samantha Power, UN Ambassador, calls these policies “haphazard” and counterproductive.

Power, who is traveling in West Africa, told NBC News that quarantine plans in New York, New Jersey and Illinois are “haphazard and not well thought out,” and could discourage health workers from going to West Africa in the first place.

“We cannot take measures here that are going to impact our ability to flood the zone,” Power said. “We have to find the right balance between addressing the legitimate fears that people have and encouraging and incentivizing these heroes.”

Officials in New Jersey, New York and Illinois, who acted in the wake of a new Ebola case in New York, said they cannot rely on people to quarantine themselves.

“I don’t think when you’re dealing with something as serious as this you can count on a voluntary system,” said New Jersey Gov. Chris Christie, a Republican, speaking onFox News Sunday. “This is the government’s job.”

He added: “I think this is a policy that will become a national policy sooner or later.”

Of course it is the “government’s job.” But which government? The state, or the federal government? Darrell Issa explains that the states will act where the United States will not:

Republican members of Congress have also called on the Obama administration to enact more travel restrictions into and out of West Africa.

Rep. Darrell Issa, R-Calif., chairman of the House Oversight and Government Reform Committee, told CNN’s State of the Union that state officials are taking action in the absence of federal leadership.

“Governors of both parties are reacting because there isn’t a trust in the leadership of this administration,” Issa said.

But wasn’t that exactly the issue in Arizona v. US? The states cannot fill this gap.

And now, other states are imposing similar quarantines:

But in that time, two more states – Illinois and Florida – announced that they were instituting similar policies.

Federal officials made it clear that they do not agree with the governors about the need or effectiveness of a total quarantine for health care workers, though they were careful not to directly criticize the governors themselves.

A senior administration official, who did not want to be identified in order to discuss private conversations with state officials on the issue, called the decision by the governors “uncoordinated, very hurried, an immediate reaction to the New York City case that doesn’t comport with science.”

This sounds likes a perfect case for a single federal policy, yet the states are not satisfied with the Obama Administration’s approach.

Add to this mess the inevitable due process violations of the people being detained. One woman, who was exposed to ebola but has exhibited no symptoms, is being kept in a tent in New Jersey in “inhumane” conditions.

At the same time, the first person to be forced into isolation under the new protocols, Kaci Hickox, a nurse returning from Sierra Leone, planned to mount a legal challenge to the quarantine order. Despite having no symptoms, she has been kept under quarantine at a hospital in New Jersey. On Sunday, she spoke to CNN about the way she has been treated, describing it as “inhumane.” …

She also blasted Mr. Christie for saying that she was sick, when it was clear that she was not running a fever and had tested negative for Ebola.

“The first thing I would say to Governor Christie is that I wish he would be more careful about his statements about my medical condition,” she said. “If he knew anything about Ebola he would know that asymptomatic people are not infectious.”

She spoke from the inside of a medical tent where she has been quarantined since Friday night. The tent has a portable toilet, but no shower. There is no television and weak cellphone reception.

“I also want to be treated with compassion and humanity, and I don’t feel I’ve been treated that way in the past three days,” she said in the interview. “I think this is an extreme that is really unacceptable. I feel like my basic human rights have been violated.”

Will litigation follow? Can you imagine a federal lawsuit where DOJ seeks an injunctions restraining Chris Christie from quarantining Hickox?

 The ACLU is already warning about “constitutional concerns” about the “police power.”

Civil liberties activists raised concerns about the constitutionality of the new rules, warning they could discourage health workers from volunteering to fight Ebola in Africa.

“We understand the importance of protecting the public from an Ebola outbreak,” the American Civil Liberties Union said in a statement reported by the New York Times, adding that the mandatory orders for isolation “raise serious constitutional concerns about the state abusing its police powers by detaining people who are exhibiting no Ebola symptoms”.

I’ll link to a post I wrote two months ago, titled “Liberty in the Time of Ebola.” The time to consider these issues is before, not during pandemics when liberties tend to go out the window. Now, it is already too late.

Update: Late Sunday, the Hill Reports that the administration is working on policies to deal with workers returning from Western Africa. Can you say, pre-emption?

A senior administration official said late Sunday that work is underway on new guidelines for healthcare workers returning from Ebola-ravaged areas.

The official said the administration is working to develop guidelines that will protect Americans and enable workers to tackle the epidemic in West Africa.

“We have been taking a close look at policies for returning healthcare workers, recognizing that these medical professionals’ selfless efforts to fight this disease on the frontlines will be critical to bringing this epidemic under control, the only way to eliminate the risk of additional cases here at home,” the official said.

In remarks at the University of New Hampshire, Justice Sotomayor explained that her “most satisfying professional moment” has been “convinc[ing] a colleague” to change his or her mind:

Questions included what was the first thing she did after being confirmed on the high court (she went to a friend’s “and I collapsed for a month”) and what her most satisfying professional moment has been.

She answered the latter by saying she couldn’t give the full details of her most satisfying professional moments “but they’re usually when you can convince a colleague to change” their mind on an issue that you feel strongly about.

“The reality is, it doesn’t happen that often,” Sotomayor said. That’s because before the justices actually vote, they’ve all read the briefs and studied the issues and “we’re pretty well-prepared.”

“By the time we got to oral arguments, if you haven’t convinced us in you’re brief, you’ve made a big mistake,” she said.

This is an interesting revelation, as Joan Biskupic’s recent book highlighted the fact that it is not Sotomayor’s preference to try to persuade other Justices. Her colleagues described her as “solo operator.” This is in stark contrast to the “shrewd tactician” Elena Kagan.

Yet, we see that Sotomayor was able to convince her colleagues not to invalidate the UT affirmative action program, and pushed the majority in Fisher to duck the issue with her dissent. I wonder if this is the case she talks about as the “most satisfying professional moment” of her career.

As an aside, I’m still not sure how her Fisher ploy worked, as Sotomayor ultimately published her dissent in Schuette, and the other Justices took public umbrage to it–Chief Justice Roberts in particular who was offended to being called out of touch. After some more thought, I suspect this may be akin to the Court’s decision to order reargument in Citizens United in the face of a dissent from Justice Souter that the Court invalidated the law, even though the argument was not briefed. In Fisher, Bert Rein specifically did not ask the Court to overturn Grutter, so it may have been a bridge too far. This is keeping with what Richard Re has called the Doctrine of One Last Chance. I think the parts of Sotomayor’s dissent that persuaded the Justices never made it into Schuette. I can’t imagine any Justices were persuaded to change their minds by being called out-of-touch.