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While listening to the song, “All I Do Is Win–Remix” (EXTREMELY NSFW) I noticed that Nicki Minaj rapped about the Affordable Care Act’s individual mandate.

Turn to 2:45.

And here are the lyrics:

Ayo, all I do is win, ain’t that the reason that you really mad
Undisputed hailing all the way from Trinidad
I ain’t mad ma, see you on your bummy swag
I’m in that money green Jag, lot of money bags
I told Khaled you the best but I’m the bestest
Better run for cover if your name is on my checklist
You could talk slick, all the way down to the welfare
Ask the IRS bitch, I’m paying for your health care

It’s unclear if Minaj qualifies for subsidies. Rap Genius offers this commentary:

Nicki is also making a lot of money, which the government taxes to pay for the new national healthcare system.

Close enough.

For previous legal-inspired rap lyrics, see Lil Wayne who sampled Chief Justice Burger’s inaugural oath of Jimmy Carter. Wayne may also read Rand.

I joined an amicus brief on behalf of the Cato Institute and Professors Jonathan Adler and James Hufffman supporting the People for the Ethical Treatment of Property Owners (PETPO–catchy, no?) in their constitutional challenge to the enforcement of the Endangered Species Act. At issue in this case is the Utah prairie dog, which has absolutely no economic value, and has never dug any holes across state lines. Even under Lopez, Morrison, and Raich, this rodent cannot be considered interstate commerce, and the necessary and proper power cannot reach this far.

Trevor Burrus and Roger Pilon have this summary of the brief, aptly titled “Problematic Prairie Pup Protections Put “Propriety” In Perspective.”

The U.S. Fish and Wildlife Service, exercising power purportedly delegated to it pursuant to Congress’s power to regulate interstate commerce, has classified the countless Utah prairie dog, which has no commercial value and has never dug holes in any lands beyond southwestern Utah, as “threatened” under the Endangered Species Act (ESA), thereby prohibiting the “take” of said prairie dogs—which essentially means doing anything that disturbs the little rodents’ habitat. If the varmints invade their property, human residents cannot build homes, start or operate certain businesses, or, in the case of Cedar City, protect playgrounds, an airport, and a local cemetery from their burrowing and barking.

Joining as People for the Ethical Treatment of Property Owners (PETPO), and represented by the Pacific Legal Foundation, residents filed suit, claiming that the “take” rule for the noncommercial, intrastate Utah prairie dog exceeds Congress’s power to regulate interstate commerce. Congress has the power to regulate “commerce among the states,” not species. PETPO’s suit argues that the ESA cannot reach activities that are intrastate and noncommercial—activities, for example, like filling holes in your lawn or otherwise developing land where prairie dogs might live. The federal district court agreed and therefore struck down the “take” regulation. The case is now before the Tenth Circuit Court of Appeals.

Joined by constitutional law professors Jonathan H. Adler, James L. Huffman, and Josh Blackman, Cato has filed a brief supporting the landowners. We argue, consistent with prior Supreme Court precedent, that the Constitution’s Commerce Clause affords Congress the power to regulate only items, channels, or instrumentalities of interstate commerce. If Congress wants to regulate activities that “substantially affect” interstate commerce, that power rests in the Necessary and Proper Clause, which gives Congress the means to regulate interstate commerce—provided those means are both necessary and proper. But the prohibited activities do not substantially affect interstate commerce. Moreover, the “take” rule is not necessary for regulating interstate commerce; Congress can regulate that commerce without prohibiting these residents from using their property. Nor is the rule proper since the power to regulate uses of property that do not affect interstate commerce belongs to the states. For those several reasons the “take” rule as applied to the Utah prairie dog exceeds the powers the Founders and the Founding generation delegated to Congress.

PLF collects the other briefs filed by several states, several Senators and Representatives, NFIB, the Chamber of Commerce, and many others:

One of the briefs was filed on behalf of the state of Utah, joined by Alaska, Arizona, Colorado, Idaho, Kansas, Montana, South Dakota, and Wyoming. It highlights the significant federalism concerns that the Utah prairie dog regulation raises. It also explains that enforcing the Constitution’s limits against the federal government does not threaten protection of the species. Utah, like all states, has primary responsiblity for protecting wildlife within its borders and will continue to protect the Utah prairie dog.

[Utah’s prairie dog conservation] plan seeks to supplement and establish self-sustaining prairie dog populations on federal and state lands away from human conflict by capturing problem animals on private lands and relocating them to preserve areas. This will gradually transition prairie dogs from human conflict areas that will never secure their future to preserve areas where they are unconditionally protected from take and can flourish without human interference.

Another brief was filed on behalf of Senators Mike Lee, James Inhofe, Mike Enzi, David Vitter, Ted Cruz, and Orrin Hatch and Congressmen Jason Chaffetz, Chris Stewart, Mia Love, and Rob Bishop.

It is no doubt true that Congress, in enacting the Endangered Species Act, wished to protect biodiversity and, in so doing, preserve whatever hidden value may lie within protected species. But these legislative aims cannot transform the Act into a market regulatory scheme. As the Supreme Court has emphasized, regulation cannot be upheld under the Commerce Clause using attenuated causal reasoning to reach the desired interstate market result. To hold otherwise would convert the Commerce Clause into the “‘[h]ey, you-can-do-whatever-you-feel-like Clause.’”

The Cato Institute, joined by Professors Jonathan H. Adler, James L. Huffman, and Josh Blackman, and the Claremont Institute’s Center for Constitutional Jurisprudence filed briefs arguing that the Utah prairie dog regulation can’t be squared with the founders’ vision for the balance between state and federal power.

If Congress has power over a non-commercial, wholly intrastate activity, such as private land use that may incidentally harm a creature like the Utah prairie dog, then it is worth asking what sorts of activities are outside Congress’s commerce power. After all, every human activity has some environmental effect, and if identifiable environmental consequences are all that is necessary to justify commerce power regulation, then the power asserted is actually a power over the entire ecosystem and all of its components. Were the federal government given the broad power to regulate any activity that can harm any species of wildlife or the entire ecosystem, that power would have been enumerated separately, not embedded in the Commerce and Necessary and Proper Clauses.

People for the Ethical Treatment of Property Owners also drew support from friends at the U.S. Chamber of Commerce and National Federation of Independent Businesses. Their briefexplains how the heavy hand of federal regulation harms not only property owners but species.

As part of a 2011 settlement with several environmental groups and resulting consent decrees, FWS has committed to reviewing 757 candidate species for listing as endangered or threatened, and to make a final decision on more than 251 pending species by 2018. … If the history recounted above is any guide, the resulting economic impact on private landowners will be measured in billions of dollars. This looming threat to people, their land, and their livelihoods requires that courts enforce, rather than ignore, the clear constitutional limits on FWS’s authority to list intrastate species. …

[T]here is good reason to question whether FWS’s no-costs-barred approach is even effective at protecting listed species. The ESA has a paper-thin record of success: only 59 species have been removed from the threatened and endangered list (which now includes more than 1,500 domestic animal and plant species), and of even that small number, 10 were removed due to extinction and another 19 were removed due to data errors, as opposed to successful recovery.

Additional briefs were filed on behalf of conservation districts and agricultural interests, theNational Association of Home Builders, and Mountain States Legal Foundation. These briefs add yet more perspective and highlight the national importance of the challenge.

National Review has published my essay about the 5th Circuit’s decision in Texas v. United States. The thrust of the piece is that Judge Smith’s majority opinion grappled and engaged with the entire gestalt of DAPA, while the dissent was shuttered by blinders, limiting the analysis to the “four corners” of the memorandum. We cannot lose sight of what DAPA is, and where it came from. Doing so conflates the massive expansion of executive power with a routine application of prosecutorial discretion.

Here is a snippet:

On Tuesday, a federal appeals court kept in place an injunction preventing President Obama from implementing his executive action on immigration, known as DAPA. The majority opinion, by Judge Jerry E. Smith, recognized the administration’s policy for what it is: the suspension of deportation for 4 million aliens, designed to trigger federal benefits including work authorization. In stark contrast, Judge Stephen A. Higginson, in his dissent, refused to appreciate the circumstances surrounding the policy, limiting his consideration to the “four corners” of the published DAPA memorandum. As I’ve discussed before on NRO, and in legal briefs, the courts must confront and engage with the fact that DAPA is a brazen effort by President Obama to bypass Congress.
…

Defenders of DAPA insist that offering work authorization is part of what is known as deferred action, and they contend that Congress actually has given the Department of Homeland Security the power to offer these benefits. The Fifth Circuit wisely sees through this argument. If Congress had given the president the hitherto unknown and unbounded power to “[make] 4.3 million otherwise removable aliens eligible for lawful presence, work authorization, and associated benefits,” then the court “would expect to find an explicit delegation of authority.” However, “no such provision exists.” As a 2000 decision of the U.S. Supreme Court put it, Congress does not “hide elephants in mouseholes.” And as the Supreme Court recognized last year, “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,’ we typically greet its announcement with a measure of skepticism.” If Congress had intended to give DHS this unprecedented dispensing power, it would have done so directly. To the contrary, both houses of Congress have voted to register their opposition to this executive action. DAPA is contrary to, not consonant with, congressional actions. As a result, to borrow words written by Justice Robert H. Jackson, the executive action “must be scrutinized with caution.”
…

Judge Higginson, noting that “the political nature of this dispute is clear,” concludes that he “would not affirm intervention and judicial fiat ordering what Congress has never mandated.” This gets it exactly backwards. By disregarding the history and circumstances that led to the establishment of the policy, Judge Higginson is content to reside in DAPA fantasyland. Applying even the most lax scrutiny to DAPA leads to the conclusion reached in the workmanlike and methodical majority opinion: DAPA amounts to a massive change in policy, which Congress has never sanctioned, and the administration should make its case to the American people before granting a quasi-legal status to 4 million aliens.

The New York Times echoes a point I made last night–by not seeking a stay in Texas v. United States, the challengers can basically run the clock out on the Obama Presidency.

When Mr. Obama announced in November that he would bypass a gridlocked Congress and enact an immigration overhaul on his own, it was a chance to make good on a promise in a way that had eluded him for years.

But on Wednesday, the president’s lawyers acknowledged that his executive actions on behalf of undocumented immigrants could be blocked by legal fights until nearly the end of his presidency, potentially robbing him of an achievement that could be part of his legacy.

If the fight goes to the Supreme Court, as seems likely, a final ruling might not come until June 2016, just as the presidential campaign heats up.

That timing could produce terrible politics for Mr. Obama’s executive actions. No matter what the court rules, the executive actions are certain to be fiercely debated by the 2016 candidates.

Even at this early stage, they are playing a role: Hillary Rodham Clinton has said she would go even further on the issue than Mr. Obama has, while Republicans have accused him of exceeding his authority.

…

Administration officials and Hispanic activists expressed confidence that the courts would eventually approve the president’s actions. But with the clock running out on Mr. Obama’s presidency, even his biggest supporters are beginning to sound worried.

I think this is exactly right. After some more reflection, it is possible this decision is more politically driven than I anticipated. By punting the issue to 2016, the President has made this a huge issue for the election, which will presumably benefit the Democratic nominee. Candidate Clinton can promise to implement DAPA–assuming the Court holds it can even be saved by notice-and-comment.

Today the Justice Department announced that it would not seek a stay of the Fifth Circuit’s decision upholding Judge Hanen’s injunction. Rather, they will pursue the appeal.

“The department believes the best way to achieve this goal is to focus on the ongoing appeal on the merits of the preliminary injunction itself,” said Patrick Rodenbush, a spokesman for the Justice Department. “Although the department continues to disagree with the Fifth Circuit’s refusal to stay the district court’s preliminary injunction, the department has determined that it will not seek a stay from the Supreme Court.”

Seeking a stay was never a good plan. The burden of proof is too high, as the judgment below is effectively reviewed for clear error. (Judge Higginson in dissent didn’t apply anything approaching a clear error standard). Politically, this was probably a necessary decision, but strategically the Obama Administration suffered a stinging defeat that shades any future appeal.

So what happens next? The appeal will be heard the week of July 6 (we don’t have an exact date yet). As far as the panel, Judges Smith, Elrod, and Higginson could potentially hear the merits appeal. The usual policy is that the merits panel and the motions panel are different, but when the cases are so closely interwoven, it is conceivable that the same panel may hear both in the interests of judicial economy. That would likely expedite the timing of a decision, though we can be pretty sure how each judge would vote. Even assuming the case is decided on an expedited basis from another panel, it may be another three months before we get a decision.

Assuming the judgment goes against the government, the Solicitor General would file a cert petition in October. Texas would file a reply in November. Assuming cert is granted, there would be arguments in March, with a decision in June 2016. If Texas loses, and the Court uphold the policy, it would be extremely difficult for the President could process all of the applications a few months before the election. Recall the injunction in place now prevents the government from doing any preparation for the process. That wouldn’t go away until the summer of 2016 (after the mandate issues), and there would be time needed to ramp up the process. As the New York Times notes, the issue “might not be resolved until just months before he leaves office.”

If the Court rules in favor of Texas, and finds notice-and-comment is required, there is absolutely way this administration could go through the process. (Perhaps a future Democratic President could). DAPA is done.

There is one other possibility. The Fifth Circuit panel rules agains Texas on the merits. At that point, Texas seeks en banc review. That may add another 4 or 5 months to the process–especially if the decision is fractured. If the federal government loses, it would not be able to file a cert petition until January or February of 2016, and Texas would not file its reply until March of so. As we learned with the same-sex marriage appeal, a petition filed that late would not be heard during the October 2015 Term. The Court could schedule really-expedited arguments, but this is unlikely, as DOJ’s decision not to see a stay should create an adverse inference that this isn’t so urgent. It would be kicked over until the October 2016 term. Come January 2017, there will be a new President, who may decide to dismiss the case before a decision is rendered.  (I previously wondered what a President Romney would have done to DOMA appeal).

In any event, as I noted months ago, Texas can run the clock out. The entire litigation process has been so disjointed. I think Texas really took DOJ by surprise, and the feds have been outmatched procedurally. And don’t forget–Judge Hanen still has jurisdiction over the case, and will likely order more discovery in light of continued malfeasance by DHS. The more information that is revealed, the shakier of a legal footing the policy sits on. Had DHS not blundered by granting extended DACA applications after the injunction issued, a lot of less information would have been revealed, and their case would be much stronger.

By not seeking a stay, I think the Administration has basically thrown in the towel. I don’t see how this policy ever goes into effect while President Obama is still in office.