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In the government’s sur-reply in Texas v. United States, it attempts to narrow the scope of injunctive relief in a few different ways. By way of background, one of the key arguments the states make concerning standing is that, due to DAPA, the states will have to incur additional costs by issuing additional drivers licenses. This, by itself, is not a constitutional violation, but a way to get a foot into federal court. Texas attached to its briefs declarations from three states–Texas, Wisconsin, and Indiana–describing the costs imposed on the state programs.

The government makes a few stabs at this, and first claims that relief may be limited to those three states.

Only three of the Plaintiff States – Texas, Wisconsin, and Indiana – have filed declarations purporting to show that the 2014 Deferred Action Guidance will impose costs on the State as a result of “state licensing programs.”1 See Pls.’ Reply in Supp. of Mot. for Prelim. Inj. (“Pls.’ Reply”) at 42 [ECF No. 64].

Second, in a footnote, the government stresses that each state will be required to demonstrate standing.

1 Contrary to Plaintiffs’ suggestion, no State can be excused from demonstrating standing in this case. Each party seeking separate relief must itself demonstrate an independent basis for standing. See LULAC v. City of Boerne, 659 F.3d 421, 428 (5th Cir. 2011).

Specifically, each state would require custom-tailored relief based on their local statutory regimes.

And each State necessarily seeks separate relief here, because an injunction may only be granted (if at all) to the extent necessary to remedy the harm to the party seeking it. See Hernandez v. Reno, 91 F.3d 776, 781 (5th Cir. 1996) (modifying nationwide injunction to apply only to plaintiff).

I think this misstates the issue. The states aren’t asserting that DAPA needs to be enjoined to ensure the proper functioning of their state licensing program. DAPA results in an injury, which provides standing to bring a Take Care clause challenge.

This may sound cynical, but virtually all of the major separation of powers cases were brought under fairly mundane injuries. Myers and Humphrey’s Executor arose from a suit in the Court of Claims for unpaid salaries. Dames & Moore v. Regan arose from a claim over unpaid debts. Noel Canning arose from a run-of-the-mill labor dispute.

Once there is an injury and standing, the courts cannot avoid the constitutional issue. As Chief Justice Taft wrote in Myers v. United States:

We are therefore confronted by the constitutional question and can not avoid it.

If DAPA is enjoined, and the ex ante status quo is restored, none of the states will have to make any changes to their licensing laws. As I’ve argued in a previous post, the district court does have the authority to issue a nationwide injunction in this case.

(Full Disclosure: I filed a brief in support of Texas’s challenge).

This will be the first in a series of posts exploring various aspects of the government’s sur-reply in Texas v. United States. As I noted in an earlier post, the government’s previous filings were extremely lackluster. The new brief is significantly improved, and makes much stronger arguments. However, in making certain arguments, I think the government may have put forward certain factual predicates that will make their case much, much weaker on appeal. (For full disclosure I filed a brief supporting Texas).

The United States argues that Youngstown is not the correct framework to understand DAPA (p. 2):

Despite mentioning Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), only in passing in their opening brief, Plaintiffs have made clear through their Reply and at oral argument that their purported constitutional claim hinges fully on that case. But Youngstown is inapposite and fails to support Plaintiffs’ claim. In Youngstown, the Executive concededly acted outside statutorily-delegated authority and therefore sought to justify its actions by reference to the Take Care Clause. By contrast, the Secretary of Homeland Security’s actions here were based on authority delegated to him by Congress pursuant to statutes that require him to prioritize the enforcement of immigration laws, consistent with the scarce resources provided by Congress.

The government’s argument begs the question: Texas challenges whether Congress has in fact delegated this authority. The framework we use to determine the conjunction or disjunction of Congress and the President is Youngstown. Or more specifically, Justice Jackson’s framework in Youngstown. Yet, the government seems to fault Texas for citing “singularly” Justice Jackson:

Plaintiffs now focus singularly on Justice Jackson’s concurrence in Youngstown, 343 U.S. 579 (1952), to support their constitutional claim, but that case does not demonstrate an independent cause of action against the Executive under the Take Care Clause.

No offense to Justice Black’s “majority” opinion, but Jackson’s canonical concurring opinion has become the definitive statement of the separation of powers.

Then-Judge Roberts stated this fact clearly at his confirmation hearing during a colloquy with Senator Leahy:

SENATOR LEAHY: But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?
ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, ’52, whatever it was . . . . Youngstown’s a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR’s attorney general and certainly a proponent of expansive executive powers . . .

As fate would have it, John G. Roberts clerked for Justice Rehnquist the term that the Court decided Dames & Moore v. Regan, 453 U.S. 654 (1981), which (mostly) reaffirmed Youngstown.

Ditto for then-Judge Alito:

SENATOR SPECTER: Judge Alito, I want to turn now to executive power and ask you first if you agree with the quotation from Justice Jackson’s concurrence in the Youngstown Steel seizure case about the evaluation of presidential power that I cited yesterday.
ALITO: I do. I think it provides a very useful framework. And it has been used by the Supreme Court in a number of important subsequent cases: in the Dames and Moore case, for example, involving the release of the hostages from Iran. And it doesn’t answer every question that comes up in this area, but it provides a very useful way of looking at them.

And then-Judge Sotomayor:

The best description of how to approach those questions was done by Justice Jackson in his concurring opinion in the Youngstown’s case. And that opinion laid out a framework that generally is applied to all questions of executive action, which is that you have to look at the powers of each branch together.

Same for then-General Kagan:

And we have actually never argued that Article 2 alone would provide such authority, and the question you raise really — the usual framework that people use when they think about this question is something called Youngstown, the — of course, Justice Jackson’s opinion in Youngstown. And he sets forth three different zones

So yeah, Jackson is the rule of law.

The government also tries to distinguish Youngstown by explaining it was not a “Take Care” clause case.

To be clear, Youngstown did not involve a claim brought under the Take Care Clause against the President. Rather, the steel companies brought an action against the Secretary of Commerce claiming that the President’s Executive Order, which directed the Secretary of Commerce to seize privately owned steel mills, was not authorized by an act of Congress or by the Constitution. 343 U.S. at 583. The Government acknowledged that it failed to meet conditions necessary to invoke two statutes that would have authorized the Executive to take personal and real property under certain circumstances. Id. at 585-86. Instead, the Government invoked, as a defense, the President’s inherent authority under Article II, including the Take Care Clause, to act without statutory authority. Id. at 587. Thus, Youngstown’s use of the Take Care Clause obtains only in the rare circumstance where the President takes action concededly outside the authority conferred by statute and then relies solely on powers inherent in Article II as a defense to a claim that his order was ultra vires.

This isn’t accurate. While Youngstown was not a “Take Care” clause case, at its core, the Court, and Jackson, found that the President engaged in lawmaking. Why did the President engage in lawmaking? Because neither Congress nor the Constitution gave him the authority to seize the mills. He was no longer executing the law, but making the law. While Truman did not seek to rely on any statutory authority–basing his entire argument on inherent powers–Jackson’s entire framework looked to whether such congressional authority may exist. Here, Jackson provides the rule of decision to determine whether the President is acting according to law, or contrary to it.The same principle, Texas (and I) argue applies to DAPA. Jackson wasn’t simply deciding the case before him–he understood that his opinion would be cited in circumstances he could not anticipate (such as this one). I’m reminded of the final paragraph of Justice Scalia’s concurring/dissenting opinion in Noel Canning:

It is not every day that we encounter a proper case or controversy requiring interpretation of the Constitution’s structural provisions. Most of the time, the interpretation of those provisions is left to the political branches — which, in deciding how much respect to afford the constitutional text, often take their cues from this Court. We should therefore take every opportunity to affirm the primacy of the Constitution’s enduring principles over the politics of the moment. Our failure to do so today will resonate well beyond the particular dispute at hand. Sad, but true: The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.

The government’s position begs the question–they assume the President was acting according to statutory authority.

That is categorically different from the situation here, where the Secretary of Homeland Security has acted pursuant to a congressional mandate to prioritize enforcement resources and within the Executive Branch’s longstanding enforcement discretion under the immigration laws, Homeland Security Act, and other congressional enactments.

But that is the entire nature of the dispute. And Jackson’s tiers provides a path to resolve that query.

The government makes another unsuccessful effort to distinguish Youngstown–DAPA is not an executive order!.

Additionally, Plaintiffs here are not suing the President, nor are they challenging any action taken by him. Unlike Youngstown, there has been no Executive Order issued by the President; the only issue before the Court is whether the Secretary’s 2014 Deferred Action Guidance is lawful within the framework of the INA and other immigration laws.

As the USA Today noted, while President Obama may not have issued as many executive orders as his predecessors, he has issued a lot of executive memorandums. It doesn’t matter what you call it. What is being challenged is the President’s failure to faithfully execute the laws and to engage in actions contrary to the law.  During oral arguments in Brownsville, a Deputy Assistant Attorney General made this point. The judge was not persuaded. The DAAG quickly retreated, and said something like “well, maybe this is a distinction without a difference.”

After spending a few pages explaining why Youngstown is inapplicable, the government explains why DAPA is consistent with Justice Jackson’s concurring opinion (p. 18):

P. 18

In all events, Plaintiffs’ Take Care Clause claim – even were it cognizable – necessarily fails because Plaintiffs cannot demonstrate that the Executive acted contrary to the express command of the statutes Congress has enacted. As explained below, the Secretary’s actions are not foreclosed by statute, and, indeed, are consistent with recognized enforcement discretion under the immigration laws.

The OLC Memorandum’s discussion of Youngstown is consistent with the above points, as it cited the Jackson concurrence for the obvious point that, as a statutory matter, enforcement decisions have to be consonant with, rather than contrary to, congressional policies underlying the statute that the agency is charged with administering. OLC Op. at 6 (Defs.’ Ex. 2). The Secretary has not exceeded those limits here. Id. at 31.

Well, yes, that’s the question. Is DAPA “consonant with, rather than contrary to, congressional policies.” In Part I of my two-part series, I argue the answer to that question is no, contrary to the OLC memo’s superficial analysis.

By the way, the government didn’t even faithfully cite the take care clause:

The Take Care Clause vests discretionary authority directly in the President, not the Legislative or Judicial Branch, to take care that the laws are properly executed.

The word is “faithfully,” not “properly.” This is almost as bad as the Supreme Court’s replacement of the phrase “public use” in the 5th Amendment with “public purpose.”

In recent years, there has been a proliferation of “scholars’ briefs.” (I have joined several). On some of the briefs, a Law Professor has served in two capacities: as both counsel and amicus. On the one hand, the scholar lends his or her academic imprimatur to the brief, providing additional credibility to the legal arguments in the brief. In theory, at least, arguments made by a scholars should receive more weight than arguments made by a regular lawyer. On the other hand, the professor serves as an advocate with a duty of zealous representation. In most cases, the client is a group of law professors, or organizations whose interests are aligned with the amicus. But, the same rules of professional responsibility apply.

I see that these two roles may be inherently in tension. The role of the scholar and that of the advocate is different. I don’t know that I can do both simultaneously. As a scholar, I go out of my way to charitably describe both sides of an argument (as best as I can). As an advocate, this tact would be foolish, and possibly unethical to the extent that it impaired my client’s case. As a professor, I would be hesitant to make an argument that hasn’t been completely thought through, as it may impact my scholarly reputation. As an advocate, especially in litigation that is moving quickly, a much more lax standard would apply to provide the tribunal with the best arguments counsel can muster. As an advocate there are certain arguments I would not be comfortable making as a scholar, and vice versa.

Granted, a lot of scholarship (mine included) veers towards advocacy. Further, this is not to say that scholars cannot contribute to the briefs. They should–a big problem with the scholars’ briefs is that the professors sometimes blindly sign their names to them.

Formally at least, having separate parties as amicus and counsel helps to keep the roles distinct.

Is there any etiquette on this? I welcome your thoughts on this question.

Update: My good friend Steve Vladeck post a thoughtful reply at Prawfs. I think our biggest point of disagreement is this:

Otherwise, what Josh is suggesting is that academic experts either not involve themselves in drafting the brief that is ultimately on their behalf, or not include themselves as one of the experts whenever they have helped to draft the argument–even when their academic expertise and their legal drafting perfectly dovetail.

That isn’t at all what I think. I wrote in my post “this is not to say that scholars cannot contribute to the briefs. They should.” The sole focus was whether the same professor should both join the brief as amicus, and sign on as counsel. The duties as an advocate under the model rules of ethics differ from norms as a scholars. Even though Law Professors write briefs on behalf of other scholars, they are still bound by duties of zealous representation. Ask yourself: are there any arguments that you would make in a brief that you would not make in a law review article. If the answer is yes, then you recognize the differing roles of the advocate and the scholar. If the answer is no, then you are not serving as a zealous advocate for your client. It is possible, but potentially problematic for professors to have it both ways. Even where the client is a group of professors, the same obligations apply. To advance the interests of your client, the author of the brief may decide to make arguments that wouldn’t fly in a law review. But if the author of the brief is also an amicus, the author’s scholarly reputation would limit such decisions.

Here is an example. I was once asked to join a scholars’ amicus brief in a case. The brief was excellent, and I agreed with 99% of it. But there was one sentence that I did not agree with as a scholar, and went in a direction that was different from the tenor of the brief. As a matter of law, it was a perfectly valid argument to make, but I was not comfortable lending my name to it. I told the author of the brief (a lawyer at a firm) that I would not join the brief unless that sentence was deleted. After some wrangling, the lawyer agreed to delete that sentence, and I joined the brief as amicus. Were I not only the amicus, but also the counsel, I don’t know if I could have pulled a similar move, especially if the other amici agreed with that sentence.

My point is not that all briefs where a professor serves as counsel and amicus are wrong. Rather, my point is solely to identify that a tension may arise.

Steve raises a number of important points, which I take as fair. But I can still see where these tension may emerge.

Also, with permission, I repost these comments from Sam Bagenstos (Michigan):

Interesting topic. I’m not a big fan of law professors’ briefs generally (though I think I joined one or two in my early days in the academy). But I think that serving as counsel-and-client actually mitigates some of the problems with such briefs. One problem with a law professors’ brief is that the brief trades on the scholarly reputation of the clients, but there is no particular guarantee that the clients wrote or approved of any particular language in the brief. Indeed, you would expect that the brief would be written by counsel, not the client (as at least one large law firm partner is learning right now). Serving as counsel and client means that the professor has to take a greater responsibility for what is in the brief. For myself, I prefer to represent clients who have a non-academic interest in the matter before the Court. The brief can explain how that interest will be affected (which I think is typically the most important function of an amicus brief anyway), then make an argument that will stand or fall on its own merits, and not based on the scholarly reputation of the client.

Update 2: David Ziff posts another thoughtful reply to my post. Here is a snippet:

Which brings us back to Blackman’s point. In the hypothetical, he’s both the lawyer and the client. Though he may be personally torn between a strong desire for a particular outcome (say, the dismantling of the Affordable Care Act) and a strong desire for another outcome (say, retaining credibility as a legal scholar), that’s the same sort of internal debate clients have all the time. And its the client’s decision that governs.

There’s no ethical problem because the client wins. If Blackman the amicus decides that he doesn’t want to advance an argument because it would run counter to his role as a public scholar, then amicus Blackman can just tell lawyer Blackman not to make that argument. Lawyer Blackman should do what amicus Blackman says because lawyer Blackman’s duty is to his client not to winning the case.

I think I agree with everything except the last sentence. When you file a brief in support of a party, you aren’t just advancing your client’s interest, but you are supporting the petitioner or respondent. Here, I think the brief in support of neither party plays an important role. But to the extent that you are choosing sides, and backing the petitioner or respondent, you do have some interest in seeing your preferred party win the case.

On Monday, February 2, I spoke at the Southwestern Law School in Los Angeles on the constitutionality of bans on 3D-printed guns. Joining me on the panel were Charlie Bleck of the Brady Campaign and Timothy Weiner of the California Attorney General’s Office. It was an enlightening discussion.

Today, a patchwork of state laws exists concerning vaccinations. Wide-ranging exemptions in some states increase the chance of exposures, resulting in potential collective action problems as diseases spread across borders. There is no single, nationwide vaccination mandate. They key precedent, Jacobson v. Massachusetts, only  concerns the state police power, and does not address the federal government’s powers. Does Congress have the power to enact a federal vaccination ban that requires all children to receive a vaccine?

This issue came up during oral argument in NFIB v. Sebelius. Justice Breyer asked Attorney Michael Carvin whether the federal government could mandate inoculation against an epidemic. Mike Carvin answered no, based on Morrison (a case Breyer dissented in).

JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent — I can make the number as high as I want — but the — the — you’d say the Federal Government doesn’t have the power to get people inoculated, to require them to be inoculated, because that’s just statistical.
MR. CARVIN: Well, in all candor, I think Morrison must have decided that issue, right? Because people who commit violence against –
JUSTICE BREYER: Is your answer to that yes or no?
MR. CARVIN: Oh, I’m sorry; my answer is no, they couldn’t do it, because Morrison –
JUSTICE BREYER: No, they could not do it.
MR. CARVIN: Yes.
JUSTICE BREYER: They cannot require people even if this disease is sweeping the country to be inoculated. The Federal Government has no power, and if there’s — okay, fine. Go ahead.

In short, Carvin explains that if the federal government lacked the power to police domestic violence in Morrison, they lack a similar power to police against inoculation.

MR. CARVIN: Violence against women obviously creates the same negative impression on fellow citizens as this communicable disease, but the –and it has huge effects on the health care of our country. … I don’t know why having a disease is any more local than — that beating up a woman.

Justice Breyer went on to pursue another line of questioning, but I think the follow-up to Carvin should have been this–domestic violence, though a nationwide problem, exists on a case-by-case basis. One person can inflict violence on one or more women in his or her vicinity. In contrast, an epidemic is a nationwide problem that can spread exponentially. Think of Patient Zero at Disneyland in California. One infected person can spread the disease nationwide in a manner of days, in a way that domestic violence simply cannot have an interstate impact.

This view provides a strong backing for the so-called “collective action” approach to federal power, which a number of law professors advanced as the defining theory for NFIB v. Sebelius. The Court didn’t adopt this approach. However, protecting against an epidemic that spreads across borders seems a much stronger case for collection action than the ACA’s individual mandate.

Another angle to consider is whether the Necessary and Proper clause is broad enough to cover something as invasive as forcing individuals to be vaccinated. While this may be necessary, it is likely not proper. If the Court found that forcing someone to *buy* insurance is improper, then forcing someone to receive an injection is almost certainly beyond the scope of the federal government’s authority–even if this is within the police power of the state under Jacobson. This is even worse than the so-called broccoli horrible.

One more angle concerns the federal displacement of a traditional ground of state law. For centuries, the state police power has entailed regulation over inoculation and quarantines. According to that power, states have crafted various exemptions and approaches that, for better or worse, reflect the considered judgment of their elected branches. A nationwide federal policy would immediately preempt all of those laws. Under NFIB, this counsels against the constitutionality of this invasion of state power.

Or, imagine another hypothetical. Congress passes a statute that provides that schools will only receive money if 100% of their students are vaccinated–subject to very narrow religious exemptions (think of the ACA’s contraception mandate). The requirement to impose the vaccination mandate would be far too great to fall within the enumerated spending power. It would also displace the traditional state power over health and safety laws.

The time to think about these questions of constitutional law is before, not during outbreaks when there is a panic and people stop thinking rationally. I should also note the ACLU favorably cited Jacobson in their Obamacare brief. Also, don’t forget that Jacobson v. Massachusetts was the basis of Justice Holmes’s decision in Buck v. Bell.

“The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

Update: A 2014 note in the Columbia Law Review by Arjun K. Jaikumar addresses the constitutionality of a federal quarantine. Here is the abstract:

The Public Health Service Act (PHSA), codified at 42 U.S.C. §§ 201–300, confers federal authority to institute medical quarantine and isolation measures in response to outbreaks of specific infectious dis- eases. Congress’s authority to pass the PHSA is derived from the Commerce Clause of the U.S. Constitution. Until recently, the constitu- tionality of the PHSA’s quarantine provisions had not been extensively analyzed or seriously questioned in the academic literature. However, this Note argues that recent Commerce Clause jurisprudence from the Supreme Court, most notably the Court’s 2012 decision in National Federation of Independent Business v. Sebelius, calls the constitu- tional validity of the PHSA’s quarantine provisions into question. Specifically, this Note argues, NFIB may preclude Congress’s authority to quarantine individuals not engaged in economic activity or interstate travel.

This Note analyzes the history of quarantine and isolation regula- tions in the United States and the Court’s fractured decision in NFIB, concluding that a reading of NFIB that removes all regulation of in- activity from Congress’s jurisdiction under the Commerce Clause would indeed endanger the PHSA’s quarantine provisions. However, this Note argues, federal quarantine may survive NFIB based on a narrower reading limiting NFIB’s holding to purchase mandates and the compul- sion of economic activity; based on the “aggregation” loophole an- nounced in United States v. Morrison; or based on the second prong of Commerce Clause analysis announced in United States v. Lopez, which confers exceptionally broad authority on Congress to protect the instrumentalities of interstate commerce.