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The decision in T-Mobile v. City of Roswell presents an odd split. Justice Sotomayor writes for the majority, joined by Justices Scalia, Kennedy, Breyer, Alito (in judgment), and Kagan. In dissent were CJ Roberts, Justices Ginsburg and Thomas. That means that Justice Scalia would have assigned the majority to Justice Sotomayor. How often does that happen?

Fittingly, in a footnote Justice Sotomayor cites Justice Scalia’s and Garner’s “Reading Law” in a paragraph where petitioners cite Garner’s Black’s Dictionary!

First, petitioner argues that the word “decision” in the statute—the thing that must be “in writing”—connotes a written document that itself provides all the reasons for a given judgment. See Brief for Petitioner 24 (quoting Black’s Law Dictionary 407 (6th ed. 1990) (a “decision” is a written document providing “‘the reasons given for [a] judgment’”)). But even petitioner concedes, with its pre­ ferred dictionary in hand, that the word “decision” can also mean “something short of a statement of reasons explain­ ing a determination.” Brief for Petitioner 24 (citing Black’s Law Dictionary, at 407).5

FN5. One of petitioner’s amici argues that Congress has used the word “decision” in the context of other communications laws to mean some­ thing more than a judgment or verdict. See Brief for Chamber of Commerce of the United States of America (Chamber) et al. 9–13. But while it is true that a word used across “the same act” should be given the same meaning, see Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. ___, ___ (2012) (slip op., at 10), the Chamber’s evidence is less persua­ sive because it arises out of entirely different “acts” and does not involve any term of art. By relying on other parts of Title 47 of the U. S. Code—some enacted in the Communications Act of 1934 decades before the enactment of the Telecommunications Act of 1996 at issue here—the Chamber stretches to invoke this canon of construction beyond its most forceful application. See A. Scalia & B. Garner, Read­ ing Law: The Interpretation of Legal Texts 172–173 (2012).

Not to be outdone, CJ Roberts cites Garner’s “Dictionary of Modern Legal Usage” in dissent:

But like the majority, I reject T- Mobile’s contention that the term “decision” inherently demands a statement of reasons. Dictionary definitions support that conclusion. See ante, at 12 (citing Black’s Law Dictionary); see also B. Garner, A Dictionary of Mod- ern Legal Usage 251 (2d ed. 1995) (grouping “decision” with “judgment,” as distinct from “opinion”).

I presented my paper, Gridlock and Executive Power, at the works-in-progress panel at the Federalist Society not-so-much-in-the-shadow-anymore Faculty Conference.

Here is the audio of the event.

The National Law Journal selected the brief Ilya Shapiro and I submitted to the Supreme Court in King v. Burwell as the “Brief of the Week.” Here is the introduction:

When South Texas College of Law professor Josh Blackman was researching his first book on the Affordable Care Act, he flagged all of the times he thought the Obama administration overstepped its authority in implementing the statute. King v. Burwell, the latest conservative challenge to the health care law, gave Blackman a chance to use that material.

Kingasks a narrow question: Can the executive branch extend tax credits to people who buy insurance through the federal marketplace? Blackman’s amicus brief, which he wrote with the Cato Institute, argues that the Internal Revenue Service’s decision to expand subsidy eligibility beyond state-run exchanges is part of a dangerous pattern of “executive lawmaking.”

“By radically and unilaterally modifying the core mechanisms Congress selected, the executive has warped the ACA, reengineering the statute based on the administration’s present-day policy preferences,” the libertarian think tank and Blackman argue in the brief.

Ilya Shapiro, a senior fellow at Cato and friend of Blackman’s, is counsel of record.

The NLJ also offers a nice plug for my in-progress-book, and announces the working full title.

Blackman is now working on a new book, which will chart legal challenges to the ACA from 2013 through the next presidential election. The working title is “Unraveled: Obamacare, Religious Freedom and Executive Power.”

Also, don’t ask me about how FantasySCOTUS will resolve this case–I’ve recused.

Blackman also has a keen interest in using statistics and other data to help predict how courts will rule. He directs judicial research for the analytics consulting firm LexPredict, and founded FantasySCOTUS, a “fantasy football”-style league for Supreme Court buffs.

As for Blackman’s prediction on whether King will be 5-4 like previous health-care challenges? The expert in analytics and the ACA said he’s going to recuse himself from weighing in.

I have already bought my tickets for D.C. on March 4. See everyone at the Court for arguments.

In today’s remarkably short (6 pages!) decision in Whitfield v. United States, Justice Scalia makes an effective use of a contemporary dictionary to give a word its “original meaning”:

Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” Carter v. United States, 530 U. S. 255, 280 (2000) (GINSBURG, J., dissenting). Section 2113 has been amended frequently, but the relevant phrase—“forces any person to accompany him without the consent of such person”—has remained unchanged, and so presumptively retains its original meaning. Vermont Agency of Natural Resources v. United States ex rel. Ste- vens, 529 U. S. 765, 783, n. 12 (2000).

In 1934, just as today, to “accompany” someone meant to “go with” him. See Oxford English Dictionary 60 (1st ed. 1933) (defining “accompany” as: “To go in company with, to go along with”).

The opinion gets even more “original” when he cites Dickens and Austen.

The word does not, as Whitfield contends, connote movement over a substantial distance. It was, and still is, perfectly natural to speak of accompany- ing someone over a relatively short distance, for example: from one area within a bank “to the vault”;1 “to the altar” at a wedding;2 “up the stairway”;3 or into, out of, or across a room.4 English literature is replete with examples. See, e.g., C. Dickens, David Copperfield 529 (Modern Library ed. 2000) (Uriah “accompanied me into Mr. Wickfield’s room”); J. Austen, Pride and Prejudice 182 (Greenwich ed. 1982) (Elizabeth “accompanied her out of the room”).

Scalia returns to the Dellinger reference forcefully.

The Con- gress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.

This is a very well-written opinion.

In an amicus brief opposing Texas’s motion for a preliminary injunction, Washington, on behalf of dozen other states disputes that the states suffer an injury as a result of DAPA. In short, they argue that DAPA will benefit states, not cause harm.

Although Plaintiffs speculate that the immigration directives will cause them “drastic injuries,” their dire predictions directly conflict with available data. Programs deferring immigration action are not new. Past experience demonstrates that suspending deportation and providing work authorization benefits families and state economies by authorizing work, increasing earnings, and growing the tax base. ….

Allowing immigrants to work legally and increase their wages has far-reaching, positive impacts on state and local economies. In Washington, for example, approximately 105,000 people are anticipated to be eligible for deferred immigration action.19 Assuming that even a portion of the eligible undocumented immigrants register, request a reprieve from deportation, and obtain a temporary work permit, it is estimated that Washington’s tax revenues will grow by $57 million over the next five years.20 California’s tax revenues are estimated to grow by $904 million over the next five years with an anticipated 1,214,00 people eligible for deferred immigration action. 21 The tax consequences for the Plaintiff States are similarly positive. For example, if the estimated 594,000 undocumented immigrants eligible for deferred action in Texas receive temporary work permits, it will lead to an estimated $338 million increase in the state tax base over five years.22

This shot misses its target. Entirely. That an unconstitutional action may benefit the states in no way diminishes the injuries suffered. A non-lawyer friend recently made this point when I explained that DAPA imposes a cost on the state. She replied that the immigrants who can work will add to the economy, so there is no net cost. I then proceeded to explain that this isn’t how standing works.

If DAPA results in a single dollar of cost incurred by the state, that is sufficient for standing. Whether or not the undocumented aliens will contribute money to the economy, and offset the dollar is irrelevant.

The brief also includes an inapposite reference to the brief I joined on behalf of the Cato Institute.

Seeking to give a contrary impression, Plaintiffs misleadingly focus on one sub- category of undocumented immigrants—minor children—to claim that DACA has caused a surge of immigrants. But this is just untrue, as their own amici have acknowledged. The Cato Institute, which has submitted an amicus brief in support of the plaintiff States (ECF No. 61-2), has concluded: “Few facts of the unaccompanied children (UAC) surge are consistent with the theory that DACA caused the surge.”27

27. Cato Inst., Alex Nowrasteh, DACA Did Not Cause the Surge in Unaccompanied Children (July 29, 2014), available at http://www.cato.org/blog/daca-did-not-cause-surge-unaccompanied-children.

The amicus brief takes no position on whether DACA or DAPA will lead to a “surge of immigrants.”

Although, this reference is helpful. The Cato Institute has taken the position that DAPA is good policy, bad law, and terrible precedent. I take my hat off to a think tank that is able to praise an executive action from a policy perspective, and at the same time challenge its constitutionality in court.

As an aside, the Washington State Solicitor General has also in the past cited my and Ilya Shapiro’s work for something we never said.