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Speaking at the National Press Club, D.C. Circuit Judge Sri Srinivasan explained that President Obama’s four recent appointments to the D.C. Circuit (including himself) did not shift the court. Here are his remarks as reported by Josh Gerstein (I could not find a recording of the event).

“On my court, no one had been confirmed to the court for seven years at the time that I was confirmed,” said Srinivasan, noting that the D.C. Circuit’s active judges before he arrived included four Republican appointees and three Democrats. “In quite rapid succession, four of us who were appointed by President Obama were appointed in the matter of a few months.”

“If we lived in a world where we had the rule of a judge, rather than the rule of law, you would have seen an absolute sea change, an avulsive change in the law as it was interpreted, applied and rendered by our court,” the judge added. “And I think in at least some spheres there was probably some apprehension about that — or glee about that — depending on one’s perspective [but] we didn’t see an immediate sea change in decisions, we didn’t see an overruling of prior precedent, we didn’t see an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with.”

(Before I get to the merits, as a Texas property professor who demands his students know the difference between accretion and avulsion, I appreciate his choice of adjective.)

Srinivan’s last comment about the en banc proceeding is the most interesting, and must be read in the context of the history of the D.C. Circuit. (I thank Adam White, a true D.C. Circuit historian, for his help with this post). In a different era, it was newly-appointed Republicans who were altering the direction of the Circuit Courts through the en banc proceeding.  A 1989 note in the Harvard Law Review, titled The Politics of En Banc Review explained that President Reagan’s appointments to the D.C. Circuit shifted the court’s precedents in an avulsive manner:

Critics have alleged that ideological motivations underlie this more frequent recourse to en banc review, implicating judges appointed by President Reagan as the prime culprits. A recent article in the Wall Street Journal boldly proclaimed that en banc review ‘has become a weapon for some Reagan appointees seeking to steer federal courts in a more conservative direction.’ Despite this growing criticism, some Reagan appointees have endorsed greater use of the procedure to express the judicial preferences of their newly achieved majorities.3

Within the last two years, shifts in the balance of power on some of the circuit courts have erupted in heated disputes involving en banc rehearings, particularly as Reagan appointees attain majorities in a greater number of circuits.4 For example, in Bartlett ex rel. Neuman v. Bowen, the D.C. Circuit reversed three of its previous orders that had granted suggestions for en banc rehearings of panel rulings. In an opinion accompanying the Bartlett order, Judge Edwards criticized the Reagan appointees for engaging in what he believed was an abuse of the en banc procedure. In particular, he accused them of reducing the exceptional importance test to a ‘self-serving and result-oriented criterion.’7Even Judge Silberman, the Reagan appointee who voted with the Democratic appointees in Bartlett to reverse the earlier decisions to rehear the appeals en banc, noted with disapproval the ‘increasing number of cases designated for en banc rehearing.’

In this sense, the four new Obama appointees to the D.C. Circuit have not used the en banc proceeding for avulsive changes in the law. But this isn’t to say that the change in composition has had no effect on its en banc proceedings. Of course, I am talking about the D.C. Circuit’s decision to grant rehearing en banc in Halbig v. Burwell, while a petition for certiorari in King v. Burwell was pending before the Supreme Court.

Srinivasan is absolutely right that some were “glee[ful]” about the new D.C. Circuit’s ability to reverse the panel decision by Judges Griffith and Randolph. In a piece titled, “Obamacare is Safe,” Emily Bazelon wrote in Slate: “The D.C. Circuit (finally!) has four Obama appointees on it,” and so Democrats now outnumber Republicans. “Presto,” she wrote, a loss today “can be a winner tomorrow.” In the New Yorker Jeff Toobin wrote:

By the time of the Halbig decision, Obama had placed four judges on the D.C. court, which shifted its composition to seven Democratic appointees and four Republicans. In light of this realignment, the Obama Administration asked the full D.C. Circuit to vacate the panel’s decision and rehear the Halbig case en banc—that is, with all the court’s active judges participating. The full court promptly agreed with the request, and the decision that would have crippled Obamacare is no longer on the books.

And don’t forget that Sen. Majority Leader Harry Reid gave the court something of a black eye, when he suggested that en banc would be granted because of the new judges: “if you look at simple math, it sure does.” At the time, I explained this was a “dangerous mindset.”

In this sense, Srinivasan should be more precise when he says “we didn’t see an immediate call to take en banc any case in which judges make a decision that other judges on the court might disagree with.” The government’s petition for rehearing en banc in Halbig was promptly granted, while a cert petition was pending. At most, this grant only served the purpose of keeping the case away from the Justices for several more months, as there were several other cases percolating from other circuits. The issue of statutory interpretation wasn’t really one that was essential for the D.C. Circuit to resolve for itself.

As Adam White noted in an WSJ editorial last summer, Halbig didn’t fit the criteria for en banc review under the D.C. Circuit’s stringent standards, for reasons aptly stated by D.C. Circuit Judge Harry Edwards:

Halbig checks none of these boxes. It is a straightforward statutory interpretation case. The administration’s supporters seem to believe that Halbig has “exceptional importance” because the Affordable Care Act is exceptionally important to them and the panel’s decision was, in their eyes, wrong. But that is a dangerous interpretation of the standard, for reasons best stated by Judge Harry Edwards—the very D.C. Circuit judge who dissented from the panel decision in Halbig.

“Obviously, no judge agrees with all of the decisions handed down in the circuit,” Mr. Edwards wrote in a 1987 case involving the Department of Health and Human Services. But if each judge called for en banc rehearing simply to overturn a panel decision with which he personally disagrees, it would do “substantial violence to the collegiality that isindispensable to judicial decision-making” [his italics]. Rather, en banc review must be reserved for “the rarest of circumstances,” Mr. Edwards wrote, cases with “real significance to the legal process.”

Mr. Edwards played an important role in the court’s history on precisely this issue. In the 1980s, acrimony on the D.C. Circuit was well known. But in the 1990s, Mr. Edwards became chief judge and restored collegiality, in part by greatly reducing the number of en banc rehearings, to three a year in the 1990s from roughly six a year in the 1980s.

Subsequent chief judges maintained this trend, rehearing roughly one case en banc each year. His successor, Douglas Ginsburg, wrote in the journal Judicature last year that the court’s steep decline in en banc rehearings “reflect[s] in part the increasing level of mutual trust and respect among the judges.”

The D.C. Circuit’s current chief judge is Merrick Garland, a Bill Clinton appointee, but the decision to grant the government’s request for an en banc rehearing lies with a majority vote of all 11 active judges, who have an open-ended timeline for issuing a ruling.

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality. The controversy surrounding HHS’s federal exchanges should be resolved promptly by the Supreme Court. There’s no need to tarry any longer at the D.C. Circuit.

Further, as Jonathan Adler noted at the time, granting en banc would only have the effect of potentially delaying the Supreme Court’s consideration of the issue.

An additional consideration for the D.C. Circuit in Halbig is whether en banc review could unnecessarily delay final resolution of the underlying question.  Both the D.C. Circuit and U.S. Court of Appeals for the Fourth Circuit expedited their consideration of the challenges to the IRS tax credits rule out of a recognition that there are significant reliance issues for both states and insured individuals.  States are already preparing to deal with the possibility that Halbig is upheld.  If the IRS rule is invalid, some states that refused to create their own exchanges may reconsider.  The sooner they know the outcome, the sooner they can make such decisions. (Ditto those states with their own exchanges that are considering whether to turn the exchanges over to the feds.)  If, as some suspect, Supreme Court review of this issue is inevitable, en banc rehearing could push off a final resolution of this question until the 2015-16 term. Even if the en banc rehearing discourages the Supreme Court from accepting certiorari in King — as Halbig critics hope — there are still two more cases pending against the rule.  Of course Halbig proponents don’t want to see an en banc review for the same reason.

Judge Sutton in a statement concurring with the denial of rehearing explained that some cases may be wrong but not en banc worthy–especially because the Supreme Court can always clean up the mess.

Skepticism about the value of merits based en banc review reflects one other thing: We are not the only Article III judges concerned with deciding cases correctly. Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.

Judge Sutton’s insights are particularly apt for Halbig–especially where a petition for certiorari was already waiting at One First Street. And, as further proof that Judge Sutton was right, at least four Justices voted to grant certiorari in King, effectively disregarding the D.C. Circuit’s efforts to keep it for itself. This is even more remarkable because only three Justices voted to reverse, so at least one Justice (probably two) in the majority, recognized that it was important to resolve the case right away, even if the government would prevail. This casts serious doubt on the judgment of those who voted to grant rehearing. What did the D.C. Circuit Judges who voted to rehear the case have to gain by doing so?

Recall TPM’s reporting of Mike Carvin’s thoughts on the issue:

“I don’t know that four justices, who are needed to [take the case] here, are going to give much of a damn about what a bunch of Obama appointees on the D.C. Circuit think,” Carvin told TPM on Thursday, after a Heritage Foundation event previewing the upcoming Supreme Court term. “This is a hugely important case.” …

“There’s plenty of cases where [Supreme Court justices] take important issues even if there’s no circuit split — like the gay marriage cases, they might take those,” Carvin said. “If you’ve gone through that process and you don’t really care what [the Obama-appointed judges] think — because I’m not going to lose any Republican-appointed judges’ votes on the en banc — then I think the calculus would be, well let’s take it now and get it resolved.”

In hindsight–his trademark bluster aside–Carvin was right about the four votes for certiorari. (Mike told me in an interview that these comments were made  “off the record,” and were offered “in reaction to Reid’s point that being an Obama appointee was outcome determinant.”).

I have a chapter in my book titled Nuclear Fallout. This is history worth examining away from the heat of the moment.

In one of Paul Ryan’s first comments as Speaker of the House, he explained that the House would not seek immigration reform in light of the President’s “Executive orders” that “circumvent[ed] the legislative process.” (They were really executive memoranda, not orders, but you get the idea).

“Look, I think it would be a ridiculous notion to try and work on an issue like this with a president we simply cannot trust on this issue,” Mr. Ryan said in an interview with CBS’s “Face the Nation.” “He tried to go it alone, circumventing the legislative process with his executive orders, so that is not in the cards.”

Then-Speaker Boehner made similar comments last year:

And frankly one of the biggest obstacle we face is trust. The American people and including many of my members don’t trust that the reform we’re talking about will be implemented as it was intended to be. The President seemed to change the health care law on a whim whenever he likes. Now he’s running around the country telling everyone that he’s going to keep acting on his own. He keeps talking about his phone and his pen. And he’s feeding more distrust about whether he’s committed to the rule of law.

There’s widespread doubt about whether this administration can be trusted to enforce our laws and it’ll be difficult to move any immigration legislation until that changes.

One of the unintended, but foreseeable consequence of turning to executive action in the face of a gridlocked Congress is to make Congress even more gridlocked, and less likely to agree to future changes due to a lack of trust. Granted, gridlock suffers from a serious chicken-and-egg problem, but here Obama’s audacious move of announcing DAPA ratcheted up the pressure. The President no doubt hoped that by putting DAPA into effect a few months after the 2014 election, he would create an entire class of aliens who were granted deferred action. In 2016, he likely estimated, the future President would have to deal with whether to renew the deferred status of these aliens. But what the President didn’t anticipate was Texas v. United States. Now, the legality of DAPA may never even be resolved by the Supreme Court–due in large part to the SG’s decision not to seek a stay in May.

This spring, I am going to revisit Gridlock and Executive Power. I wrote it over the summer of 2014, in the wake of Noel Canning, but never published it. There have been so many audacious developments in executive power since then, including DAPA, ISIS, and the blooming fight over the NDAA and Guantanamo. I envision this article as serving a similar function to David Barron’s and Marty Lederman’s two part series in the Harvard Law Review, The Commander in Chief at the Lowest Ebb. These book-length articles were published serially in the Harvard Law Review in January and February 2008. I hope this article will serve as the basis for my next book project (after Unraveled), tentatively titled “A Constitutional History of the United States: 2009-2016.” The goal of this project is to analyze the myriad constitutional disputes that occur outside the courts. Disputes over Bowe Bergdahl’s release and decision to assassinate Bin Laden–as documented in Charlie Savage’s insightful new book–warrant a close constitutional study, even if there is no judicial remedy. If the first book works well, I would love to do this for every Presidency, going backwards to Bush 43, Clinton, Bush 41, etc.

Update: At Outside The Beltway, Steven Taylor calls Ryan’s comment a disingenuous dodge.

1. If the Congress thinks that the President is overstepping his bonds on this topic, they best solution would be to pass actual legislation.
2. The reason that the President has acted unilaterally is because no legislation has been passed (see #1).

The notion that Congress cannot engage this issue legislatively is because the president in “untrustworthy” (which has been the claim for years now) is a total dodge that covers up the fact that the Congress is utterly unable to act on this issue.

The Congress has been abdicating its responsibility on this issue for quite some time now, and that is not the fault of the executive.

A few response. First, Congress did pass legislation. The Immigration and Nationality Act, and its subsequent amendments. Until new legislation is passed, the President has a duty to take care that the INA is faithfully executed. Congress has no obligation to pass any new laws. The failure to enact new laws is a political mistake (a point I have made in my amicus briefs challenging the legality of the President’s actions), but it is not a constitutional failure. And, as I argue in Gridlock and Executive Power, gridlock and intransigence does not license this unlawful executive action. The Supreme Court’s unanimous decision in Noel Canning made this point very clearly.

Update: Ryan expands in a USA Today editorial:

The House of Representatives will not vote on comprehensive immigration legislation as long asPresident Obama is in office. And the reason is simple: The American people can’t trust him to uphold the law.

He has tried to go around Congress by ordering his administration to create a new legal status for undocumented immigrants. Even a federal district court says he has overstepped his bounds. The first principle of any immigration reform has to be securing our border and enforcing the laws already on the books. But that is the very principle the president has violated….

Especially with this president. Instead of working to build trust, he has destroyed it. Last November, after his party lost control of the Senate, the president decided to circumvent the legislative process by unilaterally granting legal status to 5 million people. He has already demonstrated he is not serious about enforcing the law. Passing comprehensive reform during his presidency would merely render it meaningless.

 

 

At the 2015 AALS Conference, I spoke on a panel about Ilya Somin’s new book, The Grasping Hand, about how popular constitutionalism affected the aftermath of Kelo v. City of New London. The George Mason Law Review is publishing a symposium issue based on that panel. My contribution is Popular Constitutionalism After Kelo. Here is the abstract:

In Kelo v. City of New London, the Supreme Court offered its interpretation of the Takings Clause. We the People disagreed. In an unprecedented legal backlash, Americans from across the political spectrum united to oppose what they overwhelmingly viewed as a grievous constitutional error. But this reaction wasn’t merely political. Through the auspices of popular constitutionalism, the American people worked to abrogate the Supreme Court’s understanding of the Takings Clause and replace it with their own.

This symposium essay, written in honor of Ilya Somin’s “The Grasping Hand,” explores how popular constitutionalism emerged after Kelo. Part I offers a brief sketch of the Supreme Court’s decision in Kelo and how it weakened the constitutional protection of property rights.

Part II charts how voters and legislators in forty-five states enacted reform legislation to curb eminent domain abuse, and claw back Kelo. The intensity and fervor with which the states tackled this issue—in particular those enacted through popular referenda rather than the legislature—is a testament to the populace’s rejection of the Supreme Court’s constitutional interpretation. Kelo offers an exemplar of how the people, and not the Supreme Court, remain the final arbiters of the meaning of our Constitution.

Part III highlights how popular constitutionalism also impacts state court judges interpreting state constitutions. In one of the more curious developments following Kelo, state courts consistently disregarded Kelo as a guide for interpreting their state constitutions—a departure from how these same courts had followed the federal Supreme Court’s lead on the Takings Clause for decades. Many of these judges, acting as conduits of the people, expressly rejected Kelo.

Through both legislative and judicial channels, Americans manifested a wide-ranging constitutional repudiation of the Supreme Court’s decision. On Kelo’s inglorious decennial, thanks to popular constitutionalism, eminent domain ain’t what it used to be.

Also, I offer a special acknowledgment for Ilya:

Contributing to this symposium issue in the George Mason Law Review to discuss Ilya Somin’s book, The Grasping Hand, is a special honor for me on several levels. It marks my first publication in the journal on which I proudly served as an Articles Editor from 2008-09. More importantly, I first learned about Kelo in Professor Somin’s Property class at GMU during the Fall of 2007. Since then, Ilya has been a friend and mentor to me, and I think of his lecture years ago whenever I teach Kelo.

I have previously discussed how the constitutional challenge to the Affordable Care Act implicated popular constitutionalism.