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In researching my new book Unraveled, I attempted to follow a number of links to the HHS blog. For example, I was looking for an 10/30/13 post by Kathleen Sebelius discussing the state of HealthCare.gov (linked here by Wonkblog). It should be available at http://www.hhs.gov/healthcare/facts/blog/2013/10/clearing-up-the-facts.html. But if you go to that page, you get a “Page not found” error message. (The irony of a post about the failing HealthCare.gov site producing an error message is too rich). But the problem is much greater–the old blog posts are gone. 

The post was available as late as September 25, 2015 according to the WayBack Machine.

But at some point in the last month, it–and hundreds of other posts–were apparently deleted. The archives of the old HHS blog indicates posts going back to 2010.

If you go to the HHS Blog archives, the oldest post is from September 15, 2014–shortly after Sylvia Matthews Burwell started as the new secretary. Now the archives only go back to 2014.

No doubt it is a time HHS would rather forget, but that doesn’t justify sending five years worth of posts down the memory hole.

 

Richard Wolf explains in the USA Today why the Supreme Court energizes Republicans far more than Democrats, with quotes from me, Carrie Severino, and Ian Millhiser.

In recent years and during the current presidential primary campaigns, Republicans and conservatives act as if they have the most at stake, while Democrats and liberals appear more sanguine — even though the court remains largely conservative.  …

“Kennedy was a compromise vote that has haunted the Republican Party for 30 years,” says Josh Blackman, a constitutional law professor at South Texas College of Law.

Richard also builds on a point that Randy Barnett and I made in the Weekly Standard–that if the President and Senate are not controlled by the same party, there is the distinct possibility that a seat may remain vacant.

Many experts foresee three scenarios for the next Supreme Court nomination battle: Either a Senate controlled by the president’s party confirms the nominee by doing away with rules allowing the minority to filibuster, or a Senate ruled by the opposition forces the president to name a moderate or blocks any appointment until the next election. That last scenario could leave the court with only eight members for a protracted period.

“It’s very likely that that seat just stays vacant until there’s unified control” of the White House and Senate, says Ian Millhiser, senior fellow at the liberal Center for American Progress Action Fund. Blackman, a conservative, agrees. “We should be prepared to consider leaving a seat vacant,” he says.

I am working on a longer piece on the empty-seat, or what I’ve started to call on the stump the “Clint Eastwood Option.”

 

In Shelley v. Kraemer (1948), the Supreme Court found that enforcing a racially-restrictive covenant in court was state action for purposes of the 14th Amendment, and violated the guarantees of equal protection of the law. However, the Court found that private parties drafting a racially-restrictive covenant–if privately enforced–would not be state action, and would not violate the 14th Amendment. As a result, an unquantifiable number of deeds to this day still have racially-restrictive covenants on them, even if they are not enforced. Inded, in Shelley v. Kramer, Justices Reed, Jackson, and Rutledge, recused because their homes had racially-restrictive covenants in them (Justice Stevens reported this in his autobiography). During the confirmation hearing for Chief Justice Rehnquist, Chairman of the Senate Judiciary Committee Joe Biden revealed that WHR owned two homes with racially restrictive covenants.

During four days of committee hearings last week, Rehnquist was questioned repeatedly about deeds to a former home in Phoenix, Ariz., that barred ownership by nonwhites and a vacation home in Vermont that barred ownership by Jews.

Rehnquist said the restrictions, though offensive, are unenforceable. He said on Monday he was taking steps to eliminate the clause in the deed to his Vermont home.

However, in one of the more delicious twists of irony, former Reagan Administration official James McClellan drove straight to Dover, Delaware, and discovered that Biden too had skeletons in his closet.

A Republican supporter of William H. Rehnquist’s nomination to be chief justice of the Supreme Court disclosed records yesterday showing that a house Sen. Joseph R. Biden Jr. (D., Del.) lived in for three years had a deed barring ownership by blacks.

The house was owned by Biden’s parents and was his legal Delaware residence from August 1971 to October 1974, said James McClellan, head of the Center for Judicial Studies in Cumberland, Va.

McClellan said that “it suggests perhaps an element of hypocrisy” for Biden and other Democratic senators to question similar restrictive deeds on property owned by Rehnquist.

But Biden, a member of the Senate Judiciary Committee, which has been scrutinizing Rehnquist’s nomination, said his parents never signed the deed with the restrictive covenant and have taken legal action to disclaim it.

He said the language prohibiting ownership or occupancy by blacks was contained in a 1940 deed that transferred to his parents’ property when they bought the house in 1969.

He said they had not known about the language in the old deed.

McClellan told a news conference he was revealing the restrictive deed on the Biden home in hopes of quelling challenges to Rehnquist’s nomination. ”The American people are sick and tired of these character assassinations,” he said.

The restrictive covenants on the Biden home and the Rehnquist properties do not indicate that either man is a racist, McClellan said. …

The restriction on the deed to the Biden home said the property may not be ”owned or occupied by any Negro or person of Negro extraction.”

Records show that the house, on Woods Road in Faulkland, Del., was purchased in 1969 by Biden’s father, Joseph Sr., and mother, Jean.

 

Today we continue talking about zoning, and focus on non-conforming uses, variances, special exceptions, and other ways of making zoning codes more flexible. The lecture notes are here.

And on the topic of zoning of adult book stores, see this case where the New Jersey Supreme Court case held that it was unconstitutional for a town in New Jersey to ban strip clubs because patrons could go to a strip-club in nearby Staten Island. I swear, I didn’t make this up.

Because Judge Rosemary Collyer denied an interlocutory appeal in House of Representatives v. Burwell, the government will have to reach the merits–and it is on these grounds that they are the shakiest. In an interview with Modern Healthcare, I noted that Judge Collyer’s denial of the interlocutory appeal was surprising, but not entirely unreasonable.

Josh Blackman, an associate professor of law at South Texas College of Law, likewise said he was surprised but also that her logic wasn’t entirely unreasonable. It’s possible the case could be resolved at the district level as soon as April, he said. The appeals court could have taken six months to a year to review whether the House has standing to sue, he said.

With the case moving forward, there’s a real chance that the House’s argument about illegal spending could prevail. “The government’s strongest argument is standing, their weakest position is on the merits,” Blackman said.

In their briefs and during oral argument, the government strenuously evaded any effort to address the merits directly. McClatchy reported at the time:

Appointed to the bench by President George W. Bush, Collyer repeatedly, and perhaps tellingly, hammered Justice Department attorney Joel McElvain with sharp comments like “You’re not getting my point,” “You are dodging my question” and “This is the problem with your brief. It’s just not direct.”

While this was the smart litigation position to take during the jurisdictional hearing, this is a strategy they can follow no longer. This is significant, even if a higher court may have previously been inclined to rule against the House on standing grounds. Because any ultimate appeal will have in the record both a discussion of standing, and the merits, it is inescapable that a higher court will consider the merits when thinking about standing. This may not be doctrinally correct, but Judge Collyer’s decision will let this genie out of the bottle. And more importantly, because we are on somewhat uncharted, unprecedented grounds, where the House is suing the executive branch, the specific facts of this case–however egregious a violation of the separation of powers–may ultimately shape the doctrine of whether the Court finds standing.

There is an outside chance the DOJ will seek the extraordinary writ of mandamus, but this is very unlikely to be granted.

The Obama administration could try at least one more legal maneuver that could get the circuit court to intervene. It could seek what’s called a writ of mandamus.

But Blackman said the odds of getting one would be very low because the White House would have to argue there would otherwise be irreparable harm. Collyer’s decision allowing the House to sue, however, doesn’t change anything about the way the ACA plays out in the real world.

The plaintiffs are not seeking a preliminary injunction, but are only moving for summary judgment (on an expedited calendar). There is no conceivable showing of irreparable harm if summary judgment is granted–other than having to defend a weak position. The government will be able to quickly appeal the grant of summary judgment in favor of the plaintiffs.

Stay tuned.