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At 10:22 p.m., Judge Hanen issued his long-awaited decision in Texas v. United States, temporarily enjoining DHS from implementing DAPA. (Disclosure: I filed a brief in support of Texas.) The injunction is here. The opinion is here. The 123-page decision is extremely thorough. It spends over 60 pages on standing, and the remainder on the procedural APA claim. It doesn’t even address the Take Care clause.

The opinion has tw0 main parts. First, it finds that the states have standing. Second, it concludes that DHS lacks the discretion to institute DAPA.

The standing analysis tracks closely the arguments advanced by Texas, which I addressed here. In short, DAPA provides legal presence to aliens, who can then obtain drivers licenses in the states. This court concluded (correctly in my mind) that these licenses impose a cost on the states. The DOJ previously argued in the 9th Circuit that it was unconstitutional for Arizona to exclude DACA beneficiaries from receiving drivers licenses. The court found a similar analysis estops the government from claiming Texas can change its laws to deny DAPA beneficiaries licenses. The court (correctly in my mind) rejects the argument that DAPA will cause an influx of illegal immigration. This argument was too speculative. The standing analysis is really thorough. Contrary to what you may think, I am fairly confident this will stand up on appeal. The merits, is another story.

The merits analysis begins on p. 68. On p. 92, the court explains that Congress knows how to “delegate discretionary authority,” and has not done so here.

On p. 98, the court finds a “complete abdication” under Heckler v. Cheney.

 

The court also makes a point I address in Part II of my series of DAPA–the Secretary, and not individual officers set the the policies. There is no individual discretion (p. 108).

In an extended footnote, the court explains that DHS could not identify a single applicant denied for DACA due to discretionary factors.

Although the court doe snot reach the constitutional issue, the “abdication” analysis under the APA claim mirrors what a constitutional “Take Care” analysis would look like. So the court tipped his hand how the constitutional analysis would come out.

The final portion of Judge Hanen’s opinion stresses over, and over again, that a preliminary injunction is warranted to maintain the status quo. This is an important point that has been stressed with the same-sex marriage litigation. Allowing 4 million people to sign up for DAPA cannot be undone. The President has said so himself. From p. 121:

I’m certain much of the analysis you will read focuses on Judge Hanen’s previous writings about immigration and executive power. The 123 page decision is extremely thoughtful and comprehensive. Unlike the drivel from the District Court in Pennsylvania that reached out to decide an issue that was not before him, Judge Hanen has authored an authoritative and measured analysis of a really difficult legal issue.

What next? As I noted in this post in December, once the preliminary injunction issues, this case will rocket up to the 5th Circuit, and to SCOTUS by the end of this term. The Court will have to resolve this issue, and cannot let it linger on the certiorari docket till next term. As if this term couldn’t get any more intense!

The Southern District of Texas has issued a temporary injunction enjoining the United States, and all of its officers from implementing any aspect of DAPA. The injunction is here. The opinion is here.

I will update this post as I digest the opinion.

Update: My analysis is here.

There has been much debate of late about whether the plaintiffs in King v. Burwell have standing, and whether the Court should do anything to check on it. Nick Bagley and David Ziff comment.  While I haven’t studied this issue too closely, a recent decision from the 11th Circuit in another Obamacare case may be on point.

In this case, an orthodontist, who employed more than 50 employees, sought a declaration that the delay of the ACA’s employer mandate was invalid. The 11th Circuit, in a divided opinion, found that the plaintiff lacked standing. But the dissent makes the point, which is not disputed, that for purposes of standing, courts should presume the facts in the complaint (and sworn affidavits) are correct:

The majority says that because “Kawa’s complaint does not mention the word ‘interest,’ let alone allege that Kawa had specific plans to invest its money into an interest-bearing asset . . . [its] lost-interest argument is waived.” But I am mindful that “[w]hen the defendant challenges standing via a motion to dismiss, both trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993) (quotation marks omitted). We may find standing “based on the facts alleged in the complaint.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (emphasis added). …

I agree with the majority’s suggestion that Kawa has poorly explained how expending funds in 2013 rather than in 2015 would injure it. However, a party’s deficient enunciation of a legal argument does not strip us of our duty to view the complaint in the light most favorable to the plaintiff and determine whether it has alleged facts sufficient to show standing. See Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990) (“Facial attacks on the complaint require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his complaint are taken as true for the purposes of the motion.” (quotation marks omitted)).

In other words, at the appellate stage, courts will assume the facts, as pleaded, are true for purposes of standing. If the affidavits, as written, justify standing, it would not seem consistent with precedent to start poking under the covers, especially where the lower courts did not see fit to challenge the case on standing. Note, this is different from a legal determination that standing is lacking–this is always fair game for courts to consider. For example, consider the case of plaintiff Douglas Hurst. Bagley writes:

In his declaration, Hurst also said that he is “not eligible for health insurance from the government or any employer.” This allegation may likewise be false: Hurst’s wifehas described him as a Vietnam veteran, which would qualify him for VA coverage. It’s possible that Hurst has never enrolled in VA coverage; that’s what his lawyers say. If so, he could be eligible for tax credits. But it’s the rare 63-year old who hasn’t needed health care—and rarer still for someone to pay for care when he can get it for free. It’s reasonable to wonder whether Hurst, like King, also has a VA card.

Nick is correct to “wonder” whether Hurst has enrolled for VA Coverage, but to follow these precedents, such inquiries are outside the judicial realm. If Hurst’s sworn statement says he is “not eligible for health insurance from the government or any employer,” then that is the fact the courts should rely on. (I understand this issue was litigated below, and the courts rejected the government’s arguments). David Ziff writes that he could not find a single  “a case in which an appellate court has taken notice of additional facts on appeal to contradict standing-related evidence submitted in the trial court.” That is probably because no such case exists.

Further, to get on old usual hobby horse, the Supreme Court, as are all appellate courts, are not equipped to add factual evidence to the record. The rules of evidence and adversary proceedings are simply not present outside the district court. (Though I wonder if WSJ and Mother Jones would file an investigative reporting amicus!).

If there doubts about standing, the case should be remanded to the district court for further proceedings.

Disclosure: I filed a brief on behalf of petitioners.

Whenever I write a post about Justice Ginsburg’s most recent comments, I brace myself for the torrent of criticisms. They usually fall along 7 lines. I will try to identify them here, so I can simply link back in the future. I don’t claim I have perfect responses, but these seem to be the most common criticisms I receive.

1. But what about Justice Scalia? This comment goes something like this–“Justice Scalia has been talking about abortion or homosexuality for years. Isn’t that inappropriate?” Invariably, all of these comments circle back to Scalia’s remarks about his published dissents in Planned Parenthood v. Casey and Lawrence v. Texas. I see a huge difference between a Justice commenting on a case he already decided, and weighing in on a case not yet decided. I am not a big of this practice. I would prefer a Justice let their opinions speak for themselves. But, talking about already-decided cases doesn’t run the risk of inserting bias into pending cases. Now, some may reply, “his comments about abortion from Casey will impact his decision in Carhart. If he thinks there is no constitutional right to abortion, of course the partial birth abortion ban is constitutional.” Likewise, his dissent in Lawrence already made the argument that if states cannot criminalize sodomy and express moral disapproval about homosexuality, they also cannot prohibit same-sex marriage. In a way, he expressed his opinion on this topic a decade ago. But if he now makes this point explicitly in public comments–that bans on same-sex marriage must be upheld–he acts inappropriately. This is the case pending before him. There is definitely a fine line here, and I don’t pretend that Scalia is always on the correct side.  I’ve frequently criticized Scalia where he messes up.
2. What difference does it make? This criticism contends, “we all know how Justice Ginsburg is going to rule in this case. Why do we care what statements she makes?” I am not so formalistic to think that Justices approach all cases with blank slate. They certainly have priors–some we can glean from previous decisions, and some we may never know about. But historically, judges strive to maintain the appearance of propriety, so the litigants and the justice system at large think they are getting a fair shake. Judges wear flowing robes (and doilies) and sit behind majestic columns to impart a sense of detachment from the everyday society. Whether this is true or not, the courts support this image. These sorts of comments destroy that veneer.
3. Don’t we want to know what they think? This argument is made most forcefully by my friend Eric Segall. To summarize, Eric argues that it is better that we know what the Justices are thinking. I won’t even attempt to respond to Eric’s argument here, short of my answer, “I’d rather we didn’t know.” Following from my previous comment, I think the Justice system would be materially worse off if the pretenses of neutrality were cast away. Again, this is a deeper philosophical issue that goes far beyond Justice Ginsburg.
4. Won’t their questions at oral arguments give away their opinions? Another species of this critique is that the Justices often signal how they will vote during oral arguments. Empirically, this is not correct. If this were the case, then experts would be able to predict the votes of 8 Justices (Thomas excepted) with stunning accuracy. They don’t. They barely beat chance. Even the most sophisticated algorithms based on oral argument transcripts can only get 70%. The best players on FantasySCOTUS only get about 80% correct. While a justice’s questions may often suggest which way they are leaning, often Justices serve as the devil’s advocate–they want the lawyer to strengthen or weaken a different argument. The question of whether a Justice is signaling his views, or playing devil’s advocate, is ample to maintain the appearance of neutrality.
5. The Justices are not bound by the Code of Judicial Ethics? Yes, the Justices are not bound by the rules of ethics that the lower courts are subject to. Although, they claim they abide by the canons of ethics. The Court adopted an “Ethics Resolution” in 1991, before RBG joined, promising to abide by the canons.
6. But she is the NOTORIOUS RBG?! Some argue that Ginsburg is 81, a living legend, and has no fucks to give (pardon the expression). Who cares if she comes to the State of the Union drunk. YOLO. Next time she should bring a selfie stick! #NotoriousRBG As I noted following Hobby Lobby in a post titled Ruth Bader Hubris, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” It becomes very dangerous when people glamorize a person whose job is to decide important legal issues. The opinions and the person blend together, making it difficult to separate the two.
7. What about Posner? The last, best hope of justifying any questionable behavior by a Judge is to cite Judge Posner. I’m sorry, this doesn’t work. Judge Posner is sui generis, and I don’t necessarily mean that in a positive way. He lives by his own code. He routinely writes and speaks, at great length, about topics that come before him. These comments are not limited to discussions of his opinions, but represent commentary on the most important issues of our time. He also routinely criticizes Supreme Court precedent in books and columns, outside the scope of his judicial duty. We can debate at length the role of Posner, but he should not serve as some sore of lodestar to assess the ethicality of what judges do. I would be content to leave him as an outlier.

I don’t claim that these argument are air-tight and clear-cut. I also don’t claim that my position is correct. Ethical arguments often exist in the areas of grey between black and white. But in the future, when a Judge speaks out of turn, I’ll link back here.

Justice Ginsburg has taken to her nickname, the Notorious R.B.G. She has told the story that her law clerks had to explain to her what it meant. Although, I doubt they explained to her how Christopher George Wallace gained the monicker Notorious B.I.G. The talented rapper, before he made it big (pun intended), was a high school dropout, arrested for weapons charges by the age of 17, spent 9 months in prison for dealing crack at 18, was arrested for threatening to kill two fans, and was later arrested again for drug and weapon charges. In any event, the name has stuck, such that a Google search for “Notorious” brings up RBG before BIG.

Yet, as this term progresses, the notoriety RBG is drawing to herself becomes less and less appropriate for the role of a Justice. In a recent interview with Bloomberg, Ginsburg is asked about the possible impact of the Court’s potential ruling on same-sex marriage.

Are you concerned, that if this Court, this year were to say that there is a constitutional right for same-sex couples to marry, that there are parts of the country that would not be able to accept or would not accept that decision.

The correct answer would have been, “I cannot answer that question because this case is currently pending before the Court.” Even accepting the premise of the question–that the Court will find a “constitutional right for same-sex couples to marry”–casts a weight on how RBG will rule. (As if her vote is in any doubt, but I still feign for the appearance of neutrality.”)

But, the Notorious RBG sought to add to her notoriety. I transcribe here her entire answer (only an excerpt is included here).

I think it is doubtful that it wouldn’t be accepted. The change in people’s attitude has been enormous. In recent years people have said this is the way I am. And others looked around and we discovered it’s our next-door neighbor. We’re very fond of them. Or it’s our children’s best friend, or even our child. I think that s more and more people came out and said ‘this is who, I am the rest of us recognized they are one of us.

Imagine if someone asked a Justice how people will react if the IRS rule in King was nullified?  Oh wait. Ginsburg kinda answered that too.

Asked about the president’s legacy, Ginsburg pointed to the law, known as Obamacare, which she voted to uphold in the 2012 case.

“Our country was just about the only Western industrialized country that didn’t have universal health care for all of the people, and he made the first giant step in that direction,” she said. “That’s certainly one of the things he will be remembered for.”

These questions are premised on the Court ruling a certain way, and should not be answered.  These are the type of policy arguments that appear in an amicus brief, not in the statements of the Justices, delivered at the Supreme Court.

Speaking of which, the Human Rights Campign is soliciting signatures for its “People’s Brief” with RBG’s quote from this interview. It is captioned, “Supreme Court Justice Ruth Bader Ginsburg agrees Americans are ready for marriage equality.” “Agrees”! Are they actually arguing that Justice Ginsburg has made up her mind, and agrees with HRC on this issue? We all know this is the case, but it is unseemly for advocates before the Court to make such representations in seeking signatures for an amicus brief!

(As an aside, that photo of Ginsburg is about 20 years old. I think it is from the Court’s group picture in 1994. She isn’t even wearing a teacup jabot! Her first group picture with a doily was in 2006).

Ginsburg’s next comment compares bans on same-sex marriage to segregation laws.

There was a familiarity with people that didn’t exist in the beginning when the race problem was on the front burner. Because we lived in segregated communities. It was truly a we/they kind of thing. It is not so with the gay rights movement. I do not think it would take a large adjustment.

Here, she speaks entirely out of turn, and labels the animus behind bans on gay marriage with those about miscegenation. She compares the “race problem” with same-sex marriage bans. This is a seriously value-laden judgment that tars millions of Americans with the brush of bigotry–and potentially her own colleague, who is in an inter-racial marriage. But it is clear how Justice Ginsburg views the millions of Americans who not-too-long ago voted to amend state constitutions.

Yet Ginsburg’s argument also take on a salience I don’t think she appreciates. Footnote Four is often cited to explain why certain “discrete and insular” groups are entitled to heightened judicial reinforcement of their rights. If this is a doctrine the Court seriously (contestable), would the gay rights movement fit in? Though small in number, is this a group that lacks the political power today to advance their causes through the political process? This issue came up in February of 2012 when the federal district court in California invalidated DOMA. Whatever the argument was about the political clout of the gay-rights movement in February of 2012, as acknowledged by RBG herself, three years later it is much, much stronger. This is a huge testament to the power and message of the gay-rights community, that people have (in staggering number) supported their causes. But it is a double-edged sword. With this heightened political power, the argument for a judicial intervention becomes much, much weaker, as the political process becomes a more viable option for change.

Ginsburg’s final comments should have been her first.

And of course we shouldn’t speak much more about this subject because one way or the other it will be decided before we leave town in June.

As she says this she smirks.

This isn’t the first time this term she has made comments that potentially warrant recusal. She previously made comments about Texas’s abortion laws, while they were on appeal to SCOTUS (here and here). The National Organization for Marriage has called on RBG to recuse in this case.

As I noted following Hobby Lobby in a post titled Ruth Bader Hubris, “After a certain point, it becomes difficult to separate Justice Ruth Bader Ginsburg and the Notorious RBG. As a cause célèbre, she is now beyond the reach of normal commentary on the Court.” If Justice Ginsburg is intent on staying on the bench, she should comport herself as a Justice, and stop talking about pending cases. Court watchers should stop fawning over her inappropriate comments, even if they agree with it.

Further, I’m amazed that people are praising the fact that a Justice came to the State of the Union so intoxicated that she fell asleep. So much for sober as a judge. The district judge for whom I clerked was so serious about this image, that he wouldn’t even drink a beer in public, lest someone accuse him of judging under the influence. Also, she has fallen asleep in years past, so either she has been drunk before, or she just doesn’t bother staying awake. I’m not sure which is worse. If most people feel asleep at work, due to intoxication, they would be fired. (Although I’m sure EEOC would sue for a violation of the ADA).

I hope people can put aside the celebrity,  and recognize that one of the 9 most important Judges in the world is acting entirely inappropriately–and she doesn’t seem to care.

Update: In response to Rick Hasen, who asks me to compare RBG to Scalia, I post here a comment I made over the summer with respect to abortion:

What makes this comment so problematic is that she referred to a specific law that is currently before the 5th Circuit, and will be appealed to SCOTUS one way or the other. Scalia and GInsburg have talked about abortion and the death penalty ad nauseum for decades, but it was always framed in terms of the issues they discussed in their dissents–not specific cases that may come before the Court. RBG’s comments seem akin to Scalia’s comments about the pledge of allegiance while the Newdow litigation was making its way through the lower courts. Scalia did recuse there.

The same dynamic apply here. Scalia and Ginsburg can and do make comments about general issues, but Ginsburg directly addresses pending cases in a way that I deem wildly inappropriate. When Scalia did so, he recused in Newdow.

Update 2: A flashback to Dahlia Lithwick’s comments on Justice Scalia recusal in Newdow in 2003:

Is this brilliant jurist losing his mind? Is he so frustrated by 17 years of failure to sway an allegedly conservative court to his side on social issues that he no longer cares who he offends or how biased he may appear? Has he become so swept up by the Coulter/Limbaugh/O’Reilly game of court-bashing that he cannot see how damaging it is when played by a justice? Or is he running for elected office? What possesses Justice Scalia to eschew the reclusive public life of many justices, or at least the blandly apolitical public lives of most, to play the role of benighted public intellectual and knight gallant in the culture wars?

And, Scalia recused.