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The Minority Staff of the House Committee on Energy an Commerce has released a district-by-district report explaining the impact of the Supreme Court’s decision invalidating the tax credits, in each district. In total, they estimate $65 billion will be lost.

The report from Rep. Henry Waxman, ranking member on the Energy and Commerce Committee, details the impact that a ruling against the law in the case, King v. Burwell, would have on taxpayers in every zip code.

“If the law’s opponents succeed, they will deprive Americans of $65 billion in tax credits, making it more difficult for millions of middle class families to have the health insurance coverage they need,” Waxman, one of the authors of the Affordable Care Act, said in a statement Tuesday.

The states with the most subsidies at stake include Florida, which stands to lose $12.2 billion; Texas, which could lose $8.5 billion; and North Carolina, which could lose $4.5 billion.

 

Though, the other way to think about it is that $65 billion is being spent illegally. People should also be troubled by that, but not likely.

This report is a handy guide for constituents to call their representatives when the tax subsidies go away. I’m sure Waxman was tempted to include the switchboard numbers. This is why Congress should start planning for this now, not later.

The Times explores the debate over the right of bakers to decline to bake cakes for gay weddings.

The cases are largely being fought, and some say fueled, by two legal advocacy organizations: the American Civil Liberties Union, which supportssame-sex marriage, and the Alliance Defending Freedom, which opposes it. Each side cites bedrock American principles: First Amendment rights of religion and speech versus prohibitions in 21 states against discrimination in public accommodations on the basis of sexual orientation.

One baker also declines: to make Halloween treats (no devil candy) or erotic pastries (no penis cupcakes).

Jack Phillips is a baker whose evangelical Protestant faith informs his business. There are no Halloween treats in his bakery — he does not see devils and witches as a laughing matter. He will not make erotic-themed pastries — they offend his sense of morality. And he declines cake orders for same-sex weddings because he believes Christianity teaches that homosexuality is wrong.

Mr. Phillips, whose refusal two years ago to make a cake for a gay male couple has led to a court battle now getting underway, is one of a small number of wedding vendors across the country who are emerging as the unlikely face of faith-based resistance to same-sex marriage.

These claims are not limited to baking:

There have been more than a half-dozen other instances of business owners, most citing their understanding of Christian faith, declining to provide services for same-sex weddings. They include a photographer in New Mexico, a florist in Washington State, a bakery in Oregon, an inn in Vermont and wedding chapels in Idaho and in Nevada. And new cases continue to arise — over the last few weeks, a wedding planner in Arizonadeclined to work with a lesbian couple, and a business in California refused to photograph the wedding of a gay male couple (and then closed its doors after an outcry).

The article notes that the two organizations supporting the defense of the bakers and other professionals, are both the ACLU and ADF:

The cases are largely being fought, and some say fueled, by two legal advocacy organizations: the American Civil Liberties Union, which supportssame-sex marriage, and the Alliance Defending Freedom, which opposes it. Each side cites bedrock American principles: First Amendment rights of religion and speech versus prohibitions in 21 states against discrimination in public accommodations on the basis of sexual orientation.

Interestingly, the article quotes ADF, but not the ACLU.

Jack Phillips is a baker whose evangelical Protestant faith informs his business. There are no Halloween treats in his bakery — he does not see devils and witches as a laughing matter. He will not make erotic-themed pastries — they offend his sense of morality. And he declines cake orders for same-sex weddings because he believes Christianity teaches that homosexuality is wrong.

Mr. Phillips, whose refusal two years ago to make a cake for a gay male couple has led to a court battle now getting underway, is one of a small number of wedding vendors across the country who are emerging as the unlikely face of faith-based resistance to same-sex marriage.

I wonder if the ACLU was even willing to be quoted here. As I’ve remarked before, I’ve sensed a fissure in the ACLU. It is quite evident on the topic of free speech, but it is also fracturing on issues relating to gay marriage. This is the topic of my in-progress article, Collective Liberty.

Update: On a closer read, I see that the sentence from the Times is poorly worded.

The cases are largely being fought, and some say fueled, by two legal advocacy organizations: the American Civil Liberties Union, which supportssame-sex marriage, and the Alliance Defending Freedom, which opposes it. Each side cites bedrock American principles: First Amendment rights of religion and speech versus prohibitions in 21 states against discrimination in public accommodations on the basis of sexual orientation.

They mean that the ADF supports the “bedrock American principles” of “First Amendment rights of religion and speech.” The ACLU supports the other “bedrock American Principles” of “discrimination in public accommodations on the basis of sexual orientation.”

You know, I think this may be a Freudian slip on my part. When I see “bedrock American Principles” of “First Amendment rights of religion and speech,” my mind immediately thinks of the ACLU. Now, ti seems protections based on sexual orientation have trumped. This makes my point on “collective liberty” more apt.

I see that the ACLU field a brief in support of the Elane Photography Case. My mistake.

At the Originalism Blog, Mike Ramsey expressed his doubts about my view on executive action, noting that there is nothing in the Take Care clause that prohibits a categorical decision not to enforce elements of the law.

I have been planning on doing some more thinking about the “Take Care” clause itself, and his post has motivated me to dig further.

I think there are a few textual hooks in Article II to think about. First, the President must “take care.” Second, he must do so “faithfully.”

What does “faithfully” mean? It would seem to impose some kind of “good faith” standard. Now, is that an objective “good faith” standard–that is, what would Congress want the President to do in such a situation. Or a “subjective” good faith standard–that is, how does the President view his own independent duty to execute the law. I could go either way on this question, but I think a colorable argument can be made that the former is better.

The President serves as a “faithful” agent of Congress, charged to execute the laws it enacts. (This is the basis of the modern administrative state and the non-delegation doctrine). The President always has an independent constitutional duty to not obey unconstitutional laws, but the President still must be a faithful steward of the laws of Congress.

It is here that I think the disconnect occurs. It is very true that Congress only appropriates a fraction of the amount of money necessary to enforce all drug crimes. But it does so, knowing that the threat of enforcement nationwide serves as a deterrent to committing these crimes (I’m sure there are reams of legislative history on this point). When the President categorically declines to enforce the drug laws in several states, the deterrent effect–which Congress asked the President to execute–is eliminated. Here, I don’t think it can be said the President is acting as a faithful agent of Congress. In fact, he is thwarting what Congress designed. With respect to immigration, the President has said as much, that he thinks the laws are “broken” and he wants to change it.

I’m still giving this topic thought, so my analysis is tentative.

Update: Timothy Sandefur offers more thoughts on the text of the Constitution in response to Ilya Somin’s article in Reason (which I will respond to in due time).

First, Tim has similar thoughts about the weight of the word “faithfully.”

First, the language of the Constitution. This clause may be the most mandatory language in the entire document.* Not only does it use the word “shall”—the President shall take care, not “should” or “ought to” or “can”—but what he shall do is “take care.” Not just that he shall enforce the law, but that he shall take care to enforce it. And not even just enforce the law—but he shall “faithfully execute” the law. He isn’t supposed to just execute the law, but he shall take care to execute it faithfully. He shall execute it in good faith. He shall execute the law in a manner that is faithful—true to their letter and spirit; sincere; loyal.

That term “faithfully execute” is found elsewhere in the Constitution: the President must take an oath that he “shall faithfully execute the office of President of the United States.” His obligation to execute the law is thus equal to the very oath that he must take before entering the office of President. In short, the Take Care Clause is pitched at the highest register of constitutional obligation.

This provision was written for the sole purpose of preventing the President from suspending enforcement of the laws of the United States. As the Virginia Declaration of Rights declared, “all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people, is injurious to their rights and ought not to be exercised.” In this, the Declaration was reaffirming a provision in the English Bill of Rights of 1689: “That the pretended power of suspending…the execution of laws, by regal authority, without consent of parliament, is illegal.”

There is no other reason for this constitutional sentence except to prohibit the President from choosing to suspend the enforcement of duly enacted laws—and if you were going to write a constitutional provision to prohibit the President from refusing to enforce the laws, and wanted to write that provision in the strongest possible terms, you would use exactly the language that this provision uses. You would mandate in the strongest language of the Constitution, that the President take care faithfully to execute the laws.

…

The prohibitions on “suspension” in the Virginia Bill of Rights and the 1689 Bill of Rights that I’ve quoted above were largely inspired by the King issuing patents to bar application of the Test Oath. Those didn’t prohibit future prosecutions. They just suspended the application of the laws. (Royal courts held this to be constitutional, which is why the Bill of Rights was necessary.) Thus prohibitions on future prosecution aren’t synonymous with illegal suspension of the law, nor the sine qua non of faithlessness under our Constitution.

 

A Federal District Court in the Western District of Pennsylvania (where I clerked for a different judge) has found DAPA, President Obama’s executive action on immigration was unconstitutional. Jon Adler links to the opinion. First, as a threshold matter, the procedural posture of this case is somewhat odd. Adler writes:

The case involves an individual who was deported and then reentered the country unlawfully. In considering how to sentence the defendant, the court sought supplemental briefing on the applicability of the new policies to the defendant, and whether these policies would provide the defendant with additional avenues for seeking the deferral of his deportation.  In this case, however, it’s not entirely clear it was necessary to reach the constitutional question to resolve the issues before the court with regard to the defendant’s sentence.

In fact, after the analysis finding that DAPA is unconstitutional, the court concluded that it did not apply to the defendant. Even the most basic avoidance cannon would say this was a serious reach. It would have been appropriate, if at all, to say that because the policy doesn’t apply to the defendant, there is no need to reach the constitutionality of DAPA. But the court did the exact opposite.

With that being said, I’d like to offer some preliminary thoughts on the merits of the case, which serve as a preview of things to come in Texas’s DAPA challenge. After walking through the OLC memo, and analysis of the policy, the opinion cites President Obama’s numerous statements explaining that executive action on immigration of this scope would be unlawful.

The core of the analysis is on p. 18-22. First, the court makes a point I’ve been repeating since the summer (SSRN and National Review)–“inaction by Congress does not make unconstitutional executive action constitutional.”

 

The mere fact that Congress says on to a President does not license him to expand the scope of his executive powers. This was a point that ll 9 Justices agreed upon in Noel Canning.

The court also uses an example I have oft-repeated: could the President use prosecutorial discretion as a means to implement a lower income tax rate?

 

The court concludes that this executive action “creates laws.”

 

Next, the court explains why this executive action “goes beyond prosecutorial discretion” and amounts to “legislation.” In short, rather than examining individuals on a “case-by-case” basis, it “provides for a systematic and rigid process” to treat individuals different. Those who “fall within these broad categories” will receive “substantive rights.” This echoes a point I made in National Review–even if DAPA (as well as DACA) is defensible in theory, in practice it is designed to eliminate any meaningful discretion, and rather is designed to amount to a blanket waiver.

The court is right that “the threshold criteria will almost wholly determine eligibility.” I should add that these “threshold criteria” were set by the President after “60 iterations” and telling the lawyers to go further. This “formulaic application of criteria” is a rubber stamp.

Second, the president is not only rearranging his priorities, but also “provides for a process by which undocumented immigrants will become quasi-United States Citizens.”

Making this point eloquently is President Obama. Although DAPA, formerly known as IAEA, only offers a two-year reprieve from deportations, the President admitted what is obvious–once the immigrants receive some status, it will be politically impossible for any future president to remove them.

“It’s true a future administration might try to reverse some of our policies. But I’ll be honest with you — the American people basically have a good heart and want to treat people fairly and every survey shows that if, in fact, somebody has come out and subjected themselves to a background check, registered, paid their taxes, the American people support allowing them to stay. So any future administration that tried to punish people for doing the right thing, I think, would not have the support of the American people,” Mr. Obama told a supportive crowd at a town hall meeting in Nashville. “It’s true, theoretically, a future administration could do something that I think would be very damaging. It’s not likely,politically, that they reverse everything we’ve done.”

This candor makes the President’s claim about the limited scope of the order even less plausible. This quotation should be cited prominently in any motion for a preliminary injunction to show irreparable harm.

Then, the court concludes that DAPA is unconstitutional:

Although I find much of the analysis persuasive, the conclusion simply does not follow. It isn’t clear why the court was even in a position to find the law unconstitutional, nor is it clear what this declaration means. Oh, to be the AUSA who has to tell his/her boss about this order…

I am co-authoring an article that will appear in the Georgetown Law Journal Online on the constitutionality of DAPA. It should appear this spring, and will be on SSRN by the end of the month. Stay tuned.

Here is the first question of my Property I final, inspired by the Back to the Future Trilogy. I managed to work in the time-traveling DeLorean with trips from 1985 to 1955, 2015, alternate 1985, 1885, and back to good ‘ole 1985. Marty (here Arty) travels through time to figure out the title to Blackacre. See if you can catch all the references. I worked in a number of verbatim quotes, and scenes from the movie. The almanac that Doc takes from Marty, dumps on the trash can, and is then taken by Biff, is a perfect test for mislaid and abandoned property.

Question 1 (50%)

Instructions:

Today is June 1, 2015. But this case begins in the year 1985, where hair was big, jeans were ripped, and everyone was looking for the beef. Then it jumps back in time to 1955, where hair was quaffed, jeans were tight, and everyone liked Ike. But not before a final detour to 1885, where hair was covered, jeans were riveted, and everyone was looking for gold.

You are an associate in the law firm of Bach, Tew, DaFütcher LLP. You are asked to prepare a memo of no more than 500 words that analyzes a series of property disputes that occur in 1885, 1955, 1985, and 2015, among Arty, Biff, Doc, George, Lorraine, Seamus, and Tannen. This case is currently pending before the District Court of Hill Valley, Texas. Texas adheres to all common law property rules, as articulated in the Restatement (First) of Property. For purposes of this case, assume that the court has jurisdiction over all claims; none of the claims are barred by any statute of limitations; and the Rule Against Perpetuities, or any other principle that destroys future interests, do not apply.

—

1985

Arty comes from a long line of residents in Hill Valley, Texas. Arty, a 17-year old, lives with his mother Lorraine and his father George. George was born in 1885. George, who was orphaned at a young age, was raised by his grandfather Seamus. Seamus, Arty’s paternal great-grandfather, was born in 1840 and died in 1940.

Arty’s family has been in the town since the middle of the 19th century, and has long had an interest in Blackacre. However, due to a fire in the records office, all deeds concerning Blackacre were lost. With the state of property in Hill Valley in ashes, Arty has an idea. His friend Doc built a time machine out of a DeLorean sports car. With the DeLorean, they decided to travel through time in an excellent property adventure, to research the history of Blackacre. Alas, as with all time travel, there would be many unintended consequences.

Blasting a Huey Lewis & the News cassette tape, Arty and Doc rev up the plutonium-powered DeLorean to 88 miles per hour, and drive back in time. Their first stop was 1955, to investigate the estate of Blackacre.

1955

After breaking the space-time continuum to travel back to “good ‘ole 1955,” Arty and Doc go to the Hill Valley Courthouse, and discover a deed for Blackacre, which was recorded in year 1885.

From Seamus, all of the land on Blackacre to my grandson George for life, then to George’s first born son, but if any issue of George’s first-born son are ever convicted of a crime, then to Doc and his heirs.

Doc is really confused. He wasn’t born until 1930, and there was no one else living in Hill Valley in 1885 with that name (he checked the census!). How could Arty’s great-grandfather possibly give him an interest in Blackacre? Arty was secretly happy, as he knew he would be George’s first-born son—even though he would not be born for another 12 years. Blackacre was his soon enough, he thought! Arty and Doc make a copy of the deed for Blackacre.

Having messed enough with the past, Arty and Doc decide to venture into the great unknown—the year 2015. Blasting Elvis Presley from their AM radio, the duo went back to the future.

2015

Miraculously, in the brief period between December 2, 2014 and January 1, 2015, there was a technological revolution. Now there are flying cars, robots doing chores, and kids floating around on hoverboards.

Arty and Doc go to the Hill Valley Courthouse to check up on the state of Blackacre. Just as they enter, they see some teenager flying on a hoverboard in front of the Courthouse. Out of nowhere RoboCop knocks over the hoverboard, and screams “Arty Jr.” you are under arrest. “For what?!” the teen screams. The officer replies, “For selling your kidney. You have the right to remain silent…” Ignoring the warning, Arty Jr. shot back and said, “It’s my body and I can do what I want!” It seems young Arty Jr., who was in the need of some extra cash, sold his kidney on the black market, in violation of Texas’s ban on organ sales. RoboCop laughs, and says his trial would be scheduled next week (justice moves much faster in 2015–just you wait!).

Arty panics, and realizes the teen, who looks just like him, is his son in the future! Arty decides he must go back in time to prevent his son from getting convicted. Doc, for reasons we shall see, isn’t so keen on changing that past.

But before they venture back in time, Arty has a genius idea. He goes to the Hill Valley Bookstore and buys a sports almanac that lists the results of all sporting events in the 20th century. Arty decides that he can travel back in time, and place bets on all the winning teams. Easy money!

Doc is furious with his idea. He steals the almanac out of Arty’s hands, and throws it on top of an overflowing garbage can outside of the Bookstore. The almanac teeters on top of the trash. Doc tells him that he should not be profiting from the future.

Lurking in the shadows was Biff. Biff—who 60 years earlier was rejected by Arty’s mother Lorraine—seized on this opportunity. While Arty and Doc were fighting, Biff finds the almanac atop the garbage can, takes it, hops in the DeLorean, and travels back to 1955. He then gives the almanac to his younger self in 1955. The Biff of 2015 explains to the Biff of 1955, “this book tells the future. All you have to do is bet on the winning team.” Biff then returns back to 2015, before Arty and Doc even realize the DeLorean is gone. But Biff had already changed the course of time. The 1955 Biff proceeds to place winning bets on all sporting events. By 1985, Biff became a billionaire, and is called the “Luckiest Man on Earth.”

Totally unaware of Biff’s time-travels, Arty and Doc agree to go back to 1985, and leave the future as it is. They hop into the DeLorean, and turn on the satellite radio. They are confused by someone named Miley Cyrus singing about “twerking.” As they accelerate to 88 MPH, the time machine is struck by lightning, scrambling the time circuits. Rather than going back to 1985, they hop a century earlier, winding up in 1885.

1885

In 1885, Hill Valley was still a frontier town. Arty goes to Blackacre to check on the land. Arty’s great-grandfather Seamus, was standing on Blackacre, holding his recently orphaned grandson, the boy George. Arty, without revealing his identity asked how Seamus acquired Blackacre. Seamus replied that his father had acquired it from the Texans, a Native American tribe, in 1823, and it has stayed in the family since. Arty asked if there was any deed to show that Seamus owned it. Seamus, suspicious, fires his rifle at Arty.

Arty dodges the shot, but the bullet ricochets and strikes the ground. Immediately, a burst of oil starts gushing up. “Oil! Black gold! Texas tea!” Arty screams! Seamus has no idea what oil even is, so he ignores him. Without telling Seamus, Arty starts to pump oil from the ground.

The next day, Seamus’s neighbor Tannen, who owns the adjacent Whiteacre tells Arty to stop drilling. Tannen said, “you are taking oil from the reserves underneath Whiteacre.” Arty replied, and said, “Has anyone ever drilled here before”? Tannen replied, “No.” Arty laughs, and says “Too bad! Now all the oil is mine forever!”

Seamus, a simple farmer, finds out about Arty’s acts, and becomes enraged. He executes and records a deed to make sure that Blackacre stays in his family. And if it doesn’t, he wants it to go to his newfound friend Doc. The deed provides:

From Seamus, all of the land on Blackacre to my grandson George for life, then to George’s first born son, but if any issue of George’s first-born son are ever convicted of a crime, then to Doc and his heirs.

(This was the deed Arty and Doc discovered in 1955).

Little did Seamus know, that the jerk who was drilling on his land would become George’s first-born son! Also, Seamus did not realize that his newfound friend Doc was actually from the future, and hadn’t even been born yet!

Seamus struck the drilling equipment with a sledgehammer, and stopped the pumping. The oil reserves underneath would remain dormant for 100 years.

Arty and Doc hop back into the DeLorean, humming the tune of “Home on the Range,” for one last trip home to 1985.

Alternate 1985

However, it was not the 1985 they expected. Due to Biff’s newfound fortune, an alternate timeline emerged. In 1972 Biff killed George, and married Lorraine (Arty’s mom). Biff was now Arty’s step-father.

Arty, who was not as upset as he should have been about his father’s death, cheered, and said “I own Blackacre, and all of its oil!” Arty then began drilling again on Blackacre, and discovered one of the largest reserves in North America.

Doc confronted Biff. Doc said, “you stole my almanac.” Doc demanded that Biff return the almanac. Biff laughed at him, and said “Hello, hello, anyone home! Think! I don’t owe you anything. Arty bought the almanac, not you!”

Over the next thirty years, soaked in oil money, Arty forgot about his time-travelling adventures, and started a family. His first son Arty, Jr. was born in 2000. Despite his massive wealth, Arty would not give his kid any money, leading his son to explore other means of getting cash. Ultimately, in the year 2015, Arty Jr. decided to sell his kidney for money. Alas—as we already know—RoboCop discovered the crime, and arrested him. Arty Jr. is about to stand trial for selling his organ on the black market.

—

This brings us back to your assignment in the year 2015. You are asked to write a memo of no more than 500 words for your senior partners analyzing the following five issues. Please pay special attention to the year in which the property dispute takes place.

 Questions

 

1. Doc files an action in replevin against Biff, seeking the return of the almanac. Biff counterclaims that he is the lawful owner of the almanac. The owner of the Hill Valley Bookstore intervenes, arguing that he is the rightful owner of the almanac. Arty, who is enjoying all of his oil money, asserts no claim in the almanac. Please address the strongest argument for ownership of the almanac for (a) Doc, (b) Biff, or (c) the owner of the Hill Valley Bookstore.

2. Arty Jr. is facing a criminal conviction for selling his kidney. While Texas law prohibits the sale of organs, you are asked to create a powerful argument to force the jury to nullify. In other words, you have to persuade the jury that the law banning the sale of organs is unjust, and Arty Jr. should not be convicted. Be sure to consider all relevant ethical, legal, and economic rationales in favor of allowing organ sales.

3. In 1885, after the dispute over the gushing oil, Seamus filed an action in the Hill Valley District Court, to quiet title, and asked the court to determine the present and future interests for Blackacre of George and Doc. The Texans Native American Tribe intervenes in that suit. How would a court in 1885 resolve that suit?

4. Due to the peculiar nature of this time-travelling case, you are asked to identify the present and future interests for Blackacre in a very special manner.

• At the time the deed was discovered in 1955 (before the trip back to 1885), how would a court in 1955 describe the present and future interests of (1) George, (2) Arty, and (3) Doc?
• How would a court in the alternate 1985 (where Biff killed George), identify the present and future interests of (1) Arty and (2) Doc.
• How would a court in 2015, assuming Arty Jr. is convicted, identify the present and future interests of (1) Arty and (2) Doc.

5. There is a dispute over the ownership of the oil reserves underneath Blackacre. There are four competing claims: (1) Arty, (2) the heirs of Tannen, (3) the heirs of Seamus (not Arty), and the (4) Texans Native American Tribe. Address the strongest argument for each claim, and conclude who should own the interest in the oil.