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During an interview on CBN, Marco Rubio weighed in on the Supreme Court, as well as what happens when “God’s rules” come into conflict with civil society. I roughly transcribe his remarks in this post.

First, he was asked a question about whether Obergefell is “settled law,” and if the “Supreme Court has erred like in Dred Scott.”

It is current law, it is not settled law. No law is settled. Roe v. Wade is current law, but that doesn’t mean we aspire to fix it because we think it is wrong. But in the interim until we can get a Supreme Court to overturn Roe v. Wade we do everything possible within the constraints it has placed upon us to confront it, and limit the number of abortions, and save as many lives as possible.

Second, Rubio segued into a discussion on the role religion plays in civil society, and what happens when the two are in conflict.

We are clearly called in the Bible to adhere to our civil authorities. But that conflicts with also a requirement to adhere to God’s rules. When those two come in conflict, God’s rules always win. If we are ever ordered by a government authority to personally violate and sin, violate God’s law and sin, if we are ordered to stop preaching the gospel, if we are ordered to perform a same-sex married, as someone presiding over it, we are called on to ignore that, we cannot abide by that, because the government is compelling us to sin.

The host David Brody interjects, and asked “That’s what Kim Davis did?” Rubio doesn’t acknowledge the question, and continues answering.

In the absence of that, however, then it depends on the type of society you live in. If you live in a society where the government creates an avenue and a way for you to peacefully change the law, then you are called on to participate in that process to try to change, not ignoring it, but trying to change the law.

Rubio continued to explain why he thinks marriage is the union between a man and woman, and should be defined by the states, not the Supreme Court.

And that’s what we are endeavoring to do here. I continue to believe that marriage laws should be between one man and one woman, and the proper place for that to be defined is at the state level, where marriage has always been regulated, not by the U.S. Supreme Court, and not by the federal government.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio, Jeb Bush (here and here), Rand Paul (here and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.

Disclosure: I advise the Rand Paul campaign.

On the eve of Thanksgiving–when no one is paying attention–President Obama signed a virtually-identical NDAA that he previously vetoed, that had the same restrictions on transfers from detainees at Guantanamo Bay. His signing statement states that there are “certain circumstances” when the restrictions would be unconstitutional:

Under certain circumstances, the provisions in this bill concerning detainee transfers would violate constitutional separation of powers principles.  Additionally, section 1033 could in some circumstances interfere with the ability to transfer a detainee who has been granted a writ of habeas corpus.  In the event that the restrictions on the transfer of detainees in sections 1031, 1033, and 1034 operate in a manner that violates these constitutional principles, my Administration will implement them in a manner that avoids the constitutional conflict.

The “certain circumstances” rationale has been the self-professed modus operandi of the Obama lawyers. For example, citing a “unique set of circumstances,” the NSC justified the swap for Bowe Bergdahl for five high-value detainees. Rather than adopting a broad Article II theory of executive power–as was de rigueur during the Bush Administration–the Obama lawyers simply say, “Well, Congress can impose limits, but not in this situation.” What’s the difference? The Obama approach purports to establish limits, and identify circumstances that would not justify the executive override.

Is this a distinction without a difference? In a recent post at Just Security, responding to Charlie Savage’s book, Dawn Johnsen (who was nominated, but blocked as OLC head), defends the “circumstances” approach.

To take one prominent example that contrasts sharply with the interrogation memos of the Bush administration’s OLC: In an opinion authored by Barron, OLC meticulously interpreted and respected all potential legal constraints applicable to the proposed targeting of Anwar al-Aulaqi and advised — persuasively, in my view, at least as far as I can tell from the redacted version that is publicly available — that the operation would be lawful under a carefully constrained set of circumstances. Even though that memorandum did not conclusively opine on whether such targeting would be lawful in other circumstances, it strongly pointed toward legal limits. Moreover, Savage reports that administration lawyers later refused to deviate from those implied limits and opined that another American citizen could not be targeted because it appeared feasible that Pakistan might be able to capture him and transfer him to the US for prosecution — which (if Savage’s reporting is correct) is, in fact, what happened.

Does the “circumstances” bulwark work? Dawn’s writes, “Power Wars recounts time after time when Obama administration lawyers worked diligently with other officials to craft lawful, successful policies.” She adds, “Power Wars details the considerable extent to which the Obama administration has restored the rule of law to its traditional role as a constraining force on executive branch action.”

This “circumstances” framework only works so long as the President cares enough to follow the advice of OLC.I think one of the most damaging legacies of the Obama administration was its disregard of the Office designed t0 impose these checks.

Further, often the “circumstances” framework is hard to justify with a straight face. (See my article Gridlock and Executive Power). For example, with the NDAA, the restrictions on the transfer of the detainees were passed in light of the President’s repeated efforts to remove detainees in exchange for Bergdhal. The very “circumstances” Congress legislated against, were the “circumstances” the President found inapplicable. Color me skeptical that this was a meaningful distinction from NSC (not OLC).

At the CAC Blog, Brianne Gorod writes that it would be “political” for the Court to not grant the SG’s request so the U.S. v. Texas could be heard this year.

So the Court can hear the case this Term, and it absolutely should. That’s true not only because the questions it presents are incredibly important, but also because the President’s program will remain blocked until the Supreme Court decides this case. Moreover, given the timing of the presidential election, it’s possible this case could be mooted with the program never having gone into effect and with the Supreme Court never having had an opportunity to weigh in. Indeed, if the Court doesn’t hear the case this Term, it may look like the Court is playing politics with the timing of the decision, trying to avoid yet another politically charged case on its docket (there are already quite a few) in an election season. If there’s one thing Chief Justice Roberts has made clear, on repeated occasions, it’s that he doesn’t want it to appear that the Court is a political body.     

But there is another way of looking at this situation. As Ilya and I explained in The Federalist, the Court could possibly avoid a significantly bigger political confrontation by following the “ordinary course” and allowing the case to be obviated by the election. On Twitter Chris Walker referred to this as “passive virtue.”

On the one hand the Court would affirmatively depart from the “ordinary course” because of the Solicitor General’s extraordinary request to hear this case before his Boss leaves office. On the other hand, the Court could passively do nothing, follow the ordinary course, and potentially avoid altogether the need to set a significant precedent in a compressed time.

We will soon find out what the Justices will do 

On Friday the Solicitor General filed his petition for certiorari in United States v. Texas. Monday morning, Texas filed a letter requesting a 30-day extension to file its brief in opposition. Tuesday morning (after some last-minute scrambling), Ilya and I published our Op-Ed on The Federalist, explaining what Texas asked for, and anticipating whether the SG would formally oppose the extension. Tuesday evening (while I was on the flight home to New York), the Solicitor General filed a 2-page letter with the Court, formally opposing the extension, and in the alternative, noting that if it is granted, he will request expedited arguments in May. The Court will very likely rule on the issue by Wednesday.

The Solicitor General’s letter is a fascinating study in appellate procedure and advocacy.

First, the letter explains that the case should be heard “this Term”:

The government respectfully opposes state respondents’ request for a 30-day extension, to and including January 20, 2016, of the time to file a brief in opposition in the above-captioned case. A filing on the proposed date would preclude the Court, in the absence of unusual expedition, from deciding to hear the case this Term.

The SG does offer a compromise–instead of 30 days, he’ll concede to 8 days, and waive the government’s right to file a reply. Because this will get the case on the Court’s January 15, 2016 conference, which would allow the Court to decide the case “in the ordinary course.”

The government would, however, consent to an 8-day extension, to and including December 29, 2015, provided that the brief in opposition were physically on file with the Court on that date. A filing on that schedule, in conjunction with the government’s willingness to forgo its right to file a reply before the case is distributed, would allow the Court to consider the petition at its January 15, 2016 Conference, thereby enabling the case to be decided this Term in the ordinary course if the Court grants review.

I was trying to think in our article of describing the Courts the way the Court usually does business.  “Ordinary course” is a good way of describing it. The SG also refers to the Court’s “default schedule”

In opposing state respondents’ extension request, the government is seeking nothing more than a schedule that more closely tracks the default schedule set forth in this Court’s rules.

That’s also a helpful way of describing it.

But why is this case so important to hear this term?

The policy was first announced on November 20, 2014, and was enjoined before the principal provisions became effective. If the Court were to grant the petition, but set review for next Term, it is possible that a decision on the merits would not be issued until June 2017, over two-and-half years after the policy was first announced.

This offers more meaning to the phrase “ordinary course” and “default schedule”–a big case argued in October won’t be resolved till June.

Next, the government explains that it moved “expeditiously at every stage.”

The government has endeavored to ensure prompt resolution of this case and moved expeditiously at every stage. The initial preliminary-injunction proceedings in district court were completed by February 16, 2015, less than two-and-a-half months after the States’ complaint was filed. The government promptly filed motions for a stay of the preliminary injunction in both the district court and the court of appeals, both of which were denied. The government also filed a motion to expedite the appeal, which the court of appeals granted. And the government filed its petition for a writ of certiorari just 11 days after the court of appeals’ decision.

If you notice, the SG gave the number of days that elapsed for every data point but one–how long it took them to see a stay in the Circuit Court. It took nearly a month–an inexplicable dithering. But the bigger discrepancy, noted obliquely in penultimate sentence, reflects the fact that the United States didn’t seek a stay from SCOTUS after the 5th Circuit denied one.

The exigencies of the situation and the need to preserve the possibility of prompt review make that appropriate, irrespective of the absence of a request that this Court stay the preliminary injunction pending certiorari review.

The failure to seek a stay from the Court back in May, 2015 still baffles me. If they sought a stay from the district court, and sought a stay from the Circuit Court, why no go ahead and seek a stay from SCOTUS? The shadow docket has become de rigueur in today’s practice. The answer the White House gave is that even if a stay was granted, they would not be able to implement the program because of the uncertainty that the Fifth Circuit, and maybe even SCOTUS, may ultimately rule against the Federal Government. This would keep the legitimacy of the program in limbo, and discourage people from applying. True enough. But if a stay was sought, oral arguments would likely have been held in June, or maybe even September 2015–like with Citizens United. (A ruling on the briefs would be unlikely). A decision on the stay would’ve followed soon. By this point, we would likely already have a pronouncement on the program’s legality. If the Supreme Court found that there was no standing–even on a stay–the 5th Circuit would’ve certainly had to oblige. If the Court found that the case was not justiciable–even on a stay–the 5th Circuit would have had to oblige. If the Court found that notice-and-comment was unnecessary–even on a stay–the 5th Circuit would have had to oblige. So even if the case first had to go back to the Circuit Court for arguments on the merits, with a stay, the government could have resumed preparation of DAPA. And if the Court had ruled in favor of the government on the stay, the odds are the Court would also rule for the government on the merits. So what did the government have to lose by not seeking a stay in the summer of 2015? Why would they prefer the Court ruling on it in the summer of 2016–mere months before the election. I hinted in some earlier posts that there was a political calculus here, and made this post explicit in The Federalist:

More practically, DAPA can’t possibly be implemented in the waning days of the Obama presidency, so even a government victory in June would only set up the question of whether the next president follows through on the policy. President Obama no doubt recognizes this dynamic and would welcome a campaign cudgel: “The Supreme Court upheld my program, but I can’t implement it in time, so vote for Hillary.”

On the flip side, if the Court had denied a stay in May 2015, that would have sent a strong signal to the 5th Circuit that the government was unlikely to prevail. So maybe this is the risk they took. But it was a huge risk.

The SG closes with a trump card:

We note, however, that should state respondents’ request for a 30-day extension be granted, we anticipate filing a motion for expedition and a May argument session to permit the case to be heard this Term.

I noted in a previous post how rare the May arguments are–only three in the last quarter-century, and none because the case fell on the wrong side of the January-February line. Even if the Justices give Texas 30 days, the “10th Justice” will be right back to request an argument in May.

We should get a ruling on Wednesday.

 

The ABA Journal Blawg 100 has officially inducted my blog into its “Hall of Fame,” which presumably means I am no longer eligible to be nominated. I was previously selected in 2010, 2013, and 2014.