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You can download it here. I probably won’t have any commentary on the USG Brief until we file our amicus brief in support of Texas. It is very, very rare that I am supporting the Respondent. In every Obamacare case I’ve filed in, the challengers were always petitioners. This approach allows us to keep our powder dry until the actual brief is filed–no need to give anything away before top-side briefs are all settled.

Today the Supreme Court issued its first two decisions without Justice Scalia: Lockhart v. United States (sentencing) and Gobeille v. Liberty Mutual Insurance Company (ERISA). FantasySCOTUS missed both.

For Lockhart, the crowd and algorithm agreed it would be 6-2 reverse–but got it exactly backward. It was 6-2 affirm.

Same for Gobeille.

 

During oral arguments in Voisine v. United States, Justice Thomas asked his first question from the bench in a decade. Far more significant than the fact that CT asked a question was what he asked about. Voisine considered a fairly run-of-the-mill issue of statutory interpretation: “Whether a misdemeanor crime with the mens rea of recklessness qualifies as a ‘misdemeanor crime of domestic violence’ as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9).” Although the petitioners requested a review of the constitutionality of the statute under the Second Amendment, the Court–without noted dissent–limited the question presented to the statutory issue.

Despite the fact that the Court limited the question presented, Justice Thomas broke his decade-long-silence to ask the (stunned) Assistant to the S.G. about whether constitutional rights may be suspended based on a conviction for a domestic-violence misdemeanor. Thomas asked “Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?”Thomas pushed back and noted that in neither of the cases before the Court did the petitioners use a weapon in their act of domestic violence. “The suspension is not directly related to the use of the weapon . . . . It’s just a family member’s involved in a misdemeanor violation; therefore, a constitutional right is suspended.”

Analogizing to the First Amendment, he pressed whether the ASG could think of  “a suspension of a First Amendment right that is permanent?” If a publisher published indecent pictures of children, could the “publisher’s right to ever publish again” be suspended? The ASG answered no, of course. So Thomas shot back, “how is that different from suspending your Second Amendment right.”

This line of questioning continues a theme that Thomas explored last year in his dissent from denial of certiorari in the Highland Park “Assault weapons” case. In that dissent, which I wrote about for National Review, Thomas explained “I would grant certiorari to prevent the Seventh Circuit from relegating the Second Amendment to a second-class right.” Thomas’s questions from the bench are meant to illicit the subjugation of the Second Amendment. I noted this rank double standard in The Constitutionality of Social Cost, which is as true today as when I published it (way back) in 2011.

To understand the future of the Second Amendment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller and McDonald v. City of Chicago, the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

Indeed, the framework I explored–which measures the propensity for social costs–sounds in Thomas’s analysis:

Second Amendment challenges should be bifurcated based on the social costs involved and the actor’s propensity for violence. For the deprivation of the liberty of persons lacking a propensity for violence, the burden of persuasion should remain with the state, and stricter judicial scrutiny is warranted. For those who have demonstrated a propensity for violence and who are likely to inflict harm in the future, such as violent felons, the burden should rest with the individual, and less exacting judicial scrutiny is appropriate. Under such an approach, which fits snugly inside Heller’s rubric, the Second Amendment can develop and assume its equal station among our most cherished constitutional rights.

The question of whether a violent misdemeanant can be perpetually denied a constitutional right is not an open-and-shut issue. Justice Thomas’s questions bring this issue to the forefront, and will force the lower courts and DOJ attorneys to being briefing this question. Now that Justice Scalia’s presence will no longer be felt, Justice Thomas is speaking truth to power. Indeed, for all of the unfair criticisms for Justice Thomas for his idiosyncratic views, he has an uncanny ability to shift the dialogue on issues through his solo dissents, and now, piercing questions.  His questions demand answers.

Finally, in a nod to the fact that Heller is hardly settled law where four, and maybe soon five Justices would overturn it, Thomas said the right to keep and bear arms is “at least as of now, is still a constitutional right.”

The entire exchange is after the jump.

(more…)

A new survey by National Public Radio and the Robert Wood Johnson Foundation reveals attitudes about the Affordable Care Act in its sixth year.

Views on the Affordable Care Act (ACA), also called Obamacare, are mixed among adults in the U.S (Figure 18). When asked about its effects on the people of their state, more than a third (35%) of adults say they believe national health reform has directly helped residents, while a similar proportion (27%) say they believe the law has directly harmed residents. On a more personal level, most (56%) Americans do not believe the ACA has directly impacted them. Among those who believe it had an impact, more say it has directly hurt them (25%), as individuals, than those who say national health reform has directly helped them (15%).

The lectures notes are here.

This diagram represents the Fee Simple Defeasible, which comes with a Possibility or Reverter. For example, “so long as premises are used for school purposes.” The reversion happens automatically–no need for the grantor (or his heirs) to take any action.

This diagram represents the Fee Simple Subject to Condition Subsequent, which comes with a Right of Re-Entry. For example, ” but if the premises are not used for school purposes, the grantor has a right to re-enter and retake.” Unlike the Possibility of Reverter, the Right of Re-Entry requires the Grantor (or his heris) to take actin, and re-enter the land.

This diagram represents the Fee Simple subject to an executory interest, which comes with an executory interest, which is vested in a third person, instead of the grantor. For example, “O to “School board, but if it cease to use the land as a school, to the Library.”

This is the grant at issue in Mahrenholz:

“this land to be used for school purposes only; otherwise to revert to Grantors herein.”

And a related case from the Texas Supreme Court:  El Dorado Land Co. v. City of McKinney, No. 11-0834 (Mar. 29, 2013)

El Dorado sold the city some land for use as a park. The conveyance required that the land “shall be used only as a Community Park,” and if not used for that purpose, then El Dorado would have the right to buy the land back. Ten years later the city built a public library on part of the land, which resulted in El Dorado reminding the city about that “park” use requirement by giving notice that it was going to buy the land back. “El Dorado’s letter further asked the City within ten days to acknowledge its obligations under the deed and to suggest an acceptable closing date.”

…

The Texas Supreme Court held in El Dorado’s favor that the deed restriction was a “right of reentry,” which is a conditional future interest, and “property” under Texas law. The court relied on the reasoning of Leeco Gas & Oil Co. v. Nueces County, 736 S.W.2d 629 (Tex. 1987), a case with similar facts which held that “a future interest in real property is compensable” under the Texas Constitution’s Takings Clause. Slip op. at 6-7. In Leeco, the deed provided that the property would automatically revert if the county did not use it as a park. The court rejected the city’s attempt to distinguish the future interest at issue in Leeco from El Dorado’s, holding that it made no difference that in Leeco the interest was self-executing, and El Dorado’s interest gave it the right to repurchase.

This is the school at issue in the article about the Maeser School.

Here is a picture of the Odd Fellows building:

This chapter of IOOF seems to be gone. Presumably the grantors heirs exercised their right of reentry.