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Today and yesterday, Jeff Toobin and the WSJ Editorial Board have articulated a similar message concerning King v. Burwell. Contrary to the conventional wisdom, it may be that the President, and not the Republicans take the blame if subsidies are not restored following the Court’s decision.

Toobin writes:

So that’s the theory: millions will suddenly be uninsured, and will blame Republicans. As Harry Reid, the Democratic leader in the Senate, put it recently, “I don’t think they will [win the case]. If they do, that’s a problem that the Republicans have.”

No, it’s not. If the Obama Administration loses in the Supreme Court, the political pain will fall almost exclusively on the President and his Party. To paraphrase Colin Powell and the Pottery Barn rule, President Obama will have broken health care, so he owns it. To the vast mass of Americans who follow politics casually or not at all, Obamacare and the American system of health care have become virtually synonymous. This may not be exactly right or fair, but it’s a reasonable perception on the part of most people. The scope of the Affordable Care Act is so vast, and its effects so pervasive, that there is scarcely a corner of health care, especially with regard to insurance, that is unaffected by it. So if millions lose insurance, they will hold it against Obamacare, and against Obama. Blaming the President in these circumstances may be unfair, but it’s the way American politics works. …

For many people, the President of the United States is the government of the United States. It’s why he gets the credit and blame for so many things, like the economy, where his influence can be hard to discern. This is particularly true for a subject in which the President has invested so much of his personal and political capital. If the Supreme Court rules against him, the President can blame the Justices or the Republicans or anyone he likes, and he may even be correct. But the buck will stop with him.

The WSJ adds on a similar note:

We often ask Congressional Republicans how they prefer the Supreme Court to rule in the ObamaCare subsidies case—as a matter of politics, putting aside the law. The smarter ones usually demur, because they know the risks are real, the damage is potentially large, and many of their colleagues are complacent even at this late hour.

With a ruling in King v. Burwell approaching in June, there are troubling signs that Republicans in Congress are headed for another friendly-fire massacre that ends in a victory for President Obama. To borrow the novel idea of Wisconsin Senator Ron Johnson, this time Republicans would be smarter to try to win the inevitable debate with a unified and politically defensible strategy.

If the High Court upholds the plain text of the Affordable Care Act and vacates the insurance subsidies in the 37 states that did not establish their own exchanges, the White House will try to turn the disruption to its advantage. Some 7.7 million people are now part of the entitlement in those states, and their largely Republican Governors will come under intense industry and constituent pressure to restore the subsidies by joining ObamaCare.

In private, the Governors are petrified that dysfunction in Congress will force them into a lose-lose trench. If they set up a state exchange, they’ll be pilloried by their GOP base. If they don’t, they’ll be blamed for cutting people off medical care.

Yet a view has taken hold among some conservatives in Congress that the danger from King is overblown. The conceit is that the GOP can blame the White House for any disruption, and the public will agree. So do nothing for now and wait two years for a Republican President, who will repeal ObamaCare, sign a replacement and usher in a glorious future.

Interesting confluence of thought.

The battle in Brownsville rages on. Texas filed a response to the government’s advisory, wherein it admitted to granting even more expanded DACA applicants not only before the court’s injunction, but after it.

Texas asserts the government’s truthfulness is in doubt, and urges the court to allow further discover to reveal what DHS is up to:

Defendants’ May 7 Advisory (ECF No. 247) and supplemental declarations (ECF Nos. 256-1, 256-2) further confirm the unwieldiness of the DAPA/DACA bu- reaucracy—so large and complex that not even Defendants have a full grasp of what their machinery is doing. That, in turn, creates serious questions about the reliability of Defendants’ representations concerning the enjoined Directive’s implementation. Indeed, Defendants have now admitted to violating the preliminary injunction by is- suing what they currently quantify as approximately 2,000 three-year terms of de- ferred action. ECF No. 247.

The facts regarding Defendants’ compliance seem to be constantly evolving, from injunction compliance (March 3 advisory), to 55 recipients of three-year terms after the injunction (disclosed at the March 19 hearing), and now 72 recipients of such terms after the injunction plus “approximately” 2,000 more—with Defendants still “refin[ing]” their understanding through “ongoing” efforts (May 7 advisory and supplemental declarations). And this is in addition to more than 108,000 pre-injunction beneficiaries of the Directive. Defendants’ recent discovery production involves such broad assertions of priv- ileges that Plaintiffs know little more about the circumstances behind the inaccurate information furnished by Defendants and their newly revealed violation of the pre- liminary injunction. Because this Court or its appointed designee may review the allegedly privileged materials, however, Plaintiffs in this Response suggest a path forward and a range of options available to the Court based on what those materials show. Plaintiffs suggest that, at a minimum, a compliance-assurance mechanism would be prudent—with exploration of the need for sanctions being a separate matter depending on what the withheld materials reflect about who knew the truth and for how long. Plaintiffs also suggest certain areas of further discovery that may help shed light on appropriate next steps.

Curiously, the government raises a “presidential-communication privilege”:

Presidential-communications privilege. So too, the presidential-commu- nications privilege, the question of its propriety aside, is at most a qualified privilege for which courts must “balance the public interests at stake in determining whether the privilege should yield in a particular case.” In re Sealed Case, 121 F.3d 729, 746 (D.C. Cir. 1997).

Since discovery was granted, I had a lurking suspicion the White House’s communications would come out. Here it is.

In his dissent in Comptroller of Treasury of Md. v. Wynne, Justice Thomas offers this concise string cite for the importance of founding-era traditions for originalism:

In other areas of constitutional analysis, we would have considered these laws to be powerful evidence of the origi- nal understanding of the Constitution. We have, for example, relied on the practices of the First Congress to guide our interpretation of provisions defining congres- sional power. See, e.g., Golan v. Holder, 565 U. S. ___, ___ (2012) (slip op., at 16) (Copyright Clause); McCulloch v. Maryland, 4 Wheat. 316, 401–402 (1819) (Necessary and Proper Clause). We have likewise treated “actions taken by the First Congress a[s] presumptively consistent with the Bill of Rights,” Town of Greece v. Galloway, 572 U. S. ___, ___ (2014) (ALITO, J., concurring) (slip op., at 12). See, e.g., id., at ___ – ___ (majority opinion) (slip op., at 7– 8); Carroll v. United States, 267 U. S. 132, 150–152 (1925). And we have looked to founding-era state laws to guide our understanding of the Constitution’s meaning. See, e.g., District of Columbia v. Heller, 554 U. S. 570, 600–602 (2008) (Second Amendment); Atwater v. Lago Vista, 532 U. S. 318, 337–340 (2001) (Fourth Amendment); Roth v. United States, 354 U.S. 476, 482–483 (1957) (First Amendment); Kilbourn v. Thompson, 103 U. S. 168, 202– 203 (1881) (Speech and Debate Clause); see also Calder v. Bull, 3 Dall. 386, 396–397 (1798) (opinion of Paterson, J.) (Ex Post Facto Clause).  … As was well said in another area of constitu- tional law: “[I]f there is any inconsistency between [our] tests and the historic practice . . . , the inconsistency calls into question the validity of the test, not the historic prac- tice.” Town of Greece, supra, at ___ (ALITO, J., concurring) (slip op., at 12).

I think that last citation was a gratuitous jab at Justice Alito, who authored the majority opinion in Wynne.

Justice Kagan’s unanimous decision in Henderson v. United States offers this chestnut for Property professors:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an- other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Usually, the Court focuses on  the right to exclude as “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. U.S. (1979). But here, the focus is on “ownership.” Her use of the “thick” stick is an apt image. I will use that in class rather than the bland “essential.”

Kagan is really giving Scalia and Roberts a run for their money. Her writing is so short and crisp. She handles a somewhat-complicated statutory interpretation issue in only 8 pages. There is very little verbiage, and it cuts right to the chase. Every sentence accomplishes what it aims to accomplish. And this property reference is directly on point. Plus the case was argued on 2/24/15. Less than two months to decision. Sharp.

In City and County of San Francisco v. Sheehan, the Court per Justice Alito dismissed the first question presented as improvidently granted.

We granted certiorari to consider two questions relating to the manner in which San Francisco police officers arrested a woman who was suffering from a mental illness and had become violent. After reviewing the parties’ submissions, we dismiss the first question as improvidently granted.

The majority opinion chides the petitioner for switching their argument once cert was granted.

Having persuaded us to grant certiorari, San Francisco chose to rely on a different argument than what it pressed below. … The argument that San Francisco now advances is predicated on the proposition that the ADA governs the manner in which a qualified individual with a disability is arrested.

In the absence of “adversarial briefing,” the Court cannot resolve this issue.

Whether the statutory language quoted above applies to arrests is an important question that would benefit from briefing and an adversary presentation. But San Fran- cisco, the United States as amicus curiae, and Sheehan all argue (or at least accept) that §12132 applies to arrests. No one argues the contrary view. As a result, we do not think that it would be prudent to decide the question in this case.

Let’s see. The plaintiffs, San Francisco, and the Obama Administration all agree–sounds like Sue and Settle, SCOTUS edition! A Professor friend on Facebook noted that disability advocates pressured the San Francisco City Attorney’s office to change their ADA argument. (Update: See this letter from Disability Rights California urging San Francisco to withdraw the appeal).

As a result, the Court DIGs the first question:

Because certiorari jurisdiction exists to clarify the law, its exercise “is not a matter of right, but of judicial discre tion.” Supreme Court Rule 10. Exercising that discretion, we dismiss the first question presented as improvidently granted. See, e.g., Board of Trustees of Univ. of Ala. v. Garrett, 531 U. S. 356, 360, n. 1 (2001) (partial dismissal); Parker v. Dugger, 498 U. S. 308, 323 (1991) (same).

Justice Scalia, joined by Justice Kagan, was no so kind to the Golden Gate City. They would have dismissed both questions.

Imagine our surprise, then, when the petitioners’ prin- cipal brief, reply brief, and oral argument had nary a word to say about that subject. Instead, petitioners bluntly announced in their principal brief that they “do not assert that the actions of individual police officers [in arresting violent and armed disabled persons] are never subject to scrutiny under Title II,” and proclaimed that “[t]he only ADA issue here is what Title II requires of individual officers who are facing an armed and dangerous suspect.” Brief for Petitioners 34 (emphasis added). In other words, the issue is not (as the petition had asserted) whether Title II applies to arrests of violent, mentally ill individuals, but rather how it applies under the circumstances of this case, where the plaintiff threatened officers with a weapon. We were thus deprived of the opportunity to consider, and settle, a controverted question of law that has divided the Circuits, and were invited instead to decide an ADA ques- tion that has relevance only if we assume the Ninth Cir- cuit correctly resolved the antecedent, unargued question on which we granted certiorari. The Court is correct to dismiss the first QP as improvidently granted.

Justice Scalia made similar points during oral arguments. Why did San Francisco do it? To induce certiorari.

Why, one might ask, would a petitioner take a position on a Circuit split that it had no intention of arguing, or at least was so little keen to argue that it cast the argument aside uninvited? The answer is simple. Petitioners in- cluded that issue to induce us to grant certiorari. … It is unlikely that we would have granted certiorari on that question alone.

Because this was a “bait and switch,” Justice Scalia would not reward the petitioners with review of the related non-“certworthy” fact-based questions.

But (and here is what lies beneath the present case) when we do grant certiorari on a question for which there is a “compelling reason” for our review, we often also grant certiorari on attendant questions that are not independently “certworthy,” but that are sufficiently connected to the ultimate disposition of the case that the efficient administration of justice supports their consideration. In other words, by promising argument on the Circuit conflict that their first question presented, petitioners got us to grant certiorari not only on the first question but also on the second.

I would not reward such bait-and-switch tactics by proceeding to decide the independently “uncertworthy” second question. And make no mistake about it: Today’s judgment is a reward. It gives the individual petitioners all that they seek, and spares San Francisco the signifi- cant expense of defending the suit, and satisfying any judgment, against the individual petitioners.* I would not encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.

Scalia reiterates that this is not a Court of error correction:

Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term. Many of them have undoubtedly been decided wrongly, but we are not, and for well over a century have not been, a court of error correction. The fair course—the just course—is to treat this now-nakedly uncertworthy question the way we treat all others: by declining to decide it. In fact, there is in this case an even greater reason to decline: to avoid being snookered, and to deter future snookering.

Justice Alito, in a footnote, explains why San Francisco should not be “punish[ed]” for their chicanery.

Not satisfied with dismissing question one, which concerns San Francisco’s liability, our dissenting colleagues would further punish San Francisco by dismissing question two as well. See post, at 3 (opinion of SCALIA, J.) (arguing that deciding the second question would “reward” San Francisco and “spar[e it] the significant expense of defending the suit, and satisfying any judgment, against the individual petitioners”). But question two concerns the liability of the individual officers. Whatever contractual obligations San Francisco may (or may not) have to represent and indemnify the officers are not our concern. At a minimum, these officers have a personal interest in the correctness of the judgment below, which holds that they may have violated the Constitution. Moreover, when we granted the petition, we determined that both questions independently merited review. Because of the importance of qualified immunity “to society as a whole,” Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982), the Court often corrects lower courts when they wrongly subject individual officers to liability. See, e.g., Carroll v. Carman, 574 U. S. ___ (2014) (per curiam); Wood v. Moss, 572 U. S. ___ (2014); Plumhoff v. Rickard, 572 U. S. ___ (2014); Stanton v. Sims, 571 U. S. ___ (2013) (per curiam); Reichle v. Howards, 566 U. S. ___ (2012).

BTW, Justice Scalia refers to the “Question Presented” as “QP.”

The first question presented (QP) in the petition for certiorari was …

The Court is correct to dismiss the first QP as improvidently granted …

The second QP implicates, at most, the latter.

Ex ante, how- ever—before we considered and deliberated upon the second QP but after petitioners’ principal brief made clear that they would not address the Circuit conflict presented by the first QP—we had no more assurance that this question was decided incorrectly than we do for the thousands of other uncertworthy questions we refuse to hear each Term.

A quick search of the “Supreme Court” database on Westlaw reveals that this was the first time the abbreviation “QP” was used. The phrase “uncertworthy” has been used twice before, in Justice White’s dissental in Davis v. Kemp (1985) and Justice Blackmun’s dissental Mellon Bank v. Southland Mobile Homes of South Carolina (1978). This seems to be the first time it was used in a merits case.

Update: Mark Joseph Stern has more on Slate on the rationale behind SF’s decision to abandon the first question presented.

As ThinkProgress’s Ian Millhiser pointed out, this is a strangely naïve accusation from the (usually worldly) Scalia and Kagan. As soon as San Francisco appealed this case to the Supreme Court, civil rights groups implored Mayor Ed Lee and City Attorney Dennis Herrera to give it up. …

We can’t know for sure whether San Francisco’s city attorney modified his appeal following pleas from the civil rights community or intervention by the mayor. But the city really had no other reason to give up its tactical advantage so suddenly. And, presuming it did drop its claim in the interest of justice, San Francisco certainly wouldn’t be alone. Over the past several years, for instance, fair-housing advocates have twice convinced litigants to settle rather than push their claims to the Supreme Court. (The court finally got ahold of the fair-housing issue this term, and eager conservative justices licked their chops during arguments.) In 2012 the disability rights community also convinced Washington Gov. Christine Gregoire to abandon a case that would give the Supreme Court the opportunity to overrule a vital ADA decision from 1999. The 1999 case was decided with Justice Sandra Day O’Connor in the majority. Now O’Connor is gone, replaced by Justice Samuel Alito. And no progressive wants Alito anywhere near a civil rights case.

…

Anybody who cares about disability rights, then, should be grateful for San Francisco’s dodge. It may have been inglorious and, legally speaking, a little unseemly. But it reflected a pragmatism that has been conspicuously absent from recent progressive litigation. San Francisco’s city attorney won’t win many laurels for his last-minute evasion. But his maneuvering saved the rest of the country from a ruling that may have given cops free rein to treat mentally disabled people like typical violent offenders—and pull the trigger accordingly.