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From the Washington Post, a photograph of a bookshelf at Idle Times in D.C. places my book to the “Left of Center.” I’m on the same shelf as “Marxism.”

H/T Lowell Jacobson

The lecture notes are here. The live chat is here.

The Executive Power II – Removal Power

• The Executive Power – Article II (296-297).
• Notes (306-308).
• The “Removal” Power (348-351).
• Myers v. United States (351-366).
• Humphrey’s Executor v. United States (366-370).
• Morrison v. Olson – Removal (370-382).

The majority opinion Myers v. United States was authored by Chief Justice William Howard Taft, who had previously served as President of the United States (the only person to serve in both offices). Taft is in the first row in the middle. One dissent was authored by Justice Brandeis (first row, first on the right), who was the first Jewish Justice appointed to the bench. The other dissent was penned by Justice Oliver Wendell Holmes (first row, second from left). The other dissent was by Justice James McReynolds (first row, first from the left).

This is Justice Taft, who had the second-nicest mustache on the Court.

This is Justice Oliver Wendell Holmes, who had the nicest mustache on the Court.

This is Justice Louis Brandeis.

 

Justice Joseph Story, who served on the Supreme Court from 1811-1845, published in 1833 his commentaries on the Constitution, that offered explanations for many constitutional questions.

This is Justice George Sutherland, one of the “Four Horsemen” who opposed President Roosevelt’s agenda, who authored Humphrey’s Executor v. United States.

This is William E.Humphrey, who served as the commissioner of the FTC, and who was removed by President Roosevelt.

This is Alexia Morrison, the independent counsel in Morrison v. Olson.

This is Ted Olson, who served in the Reagan Justice Department, and was subject to investigation by Morrison.

Chief Justice Rehnquist wrote the majority opinion for the Court.

This is the Justice Scalia bobblehead. Note the wolf, because of his famous line that “this wolf comes as a wolf.”

Texas has filed what promises to be the last filing in the volley of Texas v. United States. Noteworthy is that Texas (for whom I filed an amicus brief) wrote that the United States sandbagged them by filing numerous declarations after the hearing.

The new declarations accompanying Defendants’ sur-reply do not create any material factual dispute, for all of the reasons explained here and previously. Indeed, given that Defendants had over a week to review each and every one of Plaintiffs’ factual assertions before the hearing, and given that Defendants participated in the hearing without objection, they cannot later manufacture a fact dispute by offering new, post-hearing declarations. That is sandbagging.

I tend to agree about the timing, though these declarations are important to show that there is not in fact the type of case-by-case discretion claimed by OLC. More on that later.

If anyone is in the Los Angeles area, I will be giving a talk today at 12:30 at the Southwestern Law School on the 1st Amendment, the 2nd Amendment, and 3D-Printed guns. The event will be in the Westmoreland building in room W329 at 3050 Wilshire Blvd. See you there!

The New York Times reports on the “political firestorm” that will erupt when 6 million people are required to pay the inaugural Obamacare tax penalty. (Remember when the President waived it for everyone last year?). Apparently, many have been exempted, and even more will be exempted.

Obama administration officials and other supporters of the Affordable Care Act say they worry that the tax-filing season will generate new anger as uninsured consumers learn that they must pay tax penalties and as many people struggle with complex forms needed to justify tax credits they received in 2014 to pay for health insurance.

The White House has already granted some exemptions and is considering more to avoid a political firestorm.

Mark J. Mazur, the assistant Treasury secretary for tax policy, said up to six million taxpayers would have to “pay a fee this year because they made a choice not to obtain health care coverage that they could have afforded.” …

Federal officials have authorized more than 30 types of exemptions from the penalty for not having insurance. One is for low-income people who live in states that did not expand Medicaid. Another is available to people who would have to pay premiums amounting to more than 8 percent of their household income. The government will also allow a variety of hardship exemptions and in most cases will require taxpayers to send in documents as evidence of hardship.

What are these new exemptions and how are they being issued? The article does not explain. There is no indication of what these waivers from the law are. There isn’t even a discussion of whether these exemptions are lawful. It’s as if this is not a fact worthy of reporting.

I don’t mean to pile onto the Times, but I fear that this is the new normal in the separation of powers. In class recently, I asked a student what should the President have done during the Fall of 2013 as millions of policies were being cancelled as a result of Obamacare. The student, sincerely, said “issue an executive order.” That was his first thought. I asked a follow-up: How can the President change the law. It took several follow-ups for another student to say, “Ask Congress to change the law?” Yes!

It is remarkable that people today do not think of Congress changing laws as the first option. Much of the blame falls with Congress, which hasn’t enacted different laws–but the President bears an even greater share of the blame for taking matters into his own hands in the face of this gridlock. Congress may have a civic duty to pass laws, but has no constitutional obligation to do so. The President, on the other hand, has a constitutional duty to faithfully execute the laws Congress enacts.

The havoc the current legal culture breeds is in distorting how the citizenry think about the separation of powers. The Saturday Nigh Light skit about how a Bill becomes a law (Executive Order!) is a testament to this fact. This is one of the scariest aspects of the current legal regime–an entire generation will grow up thinking an executive order to bypass a uncooperative Congress is the way to go.