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On November 9, Michael Hamilton of the Heartland Institute hosted me for a podcast on Unraveled. You can listen here.

On Monday, the House of Representatives moved to hold its challenge to the payment of ACA subsidies, in light of the new election. Today, HHS filed its opposition. HHS argues that there is no indication that the new administration will take a different position with respect to the House of Representatives having standing to sue the President.

These principles are unchanged by the recent election. The House does not suggest that the incoming Administration would welcome heretofore unprecedented suits by subcomponents of Congress that seek to alter the way the Executive Branch is administering federal law. That principle alone is reason not to halt briefing mid-course.

This is a fascinating point, that many people may lose sight of. The Trump Administration will not be keen to have a Democratic-controlled House sue it anything. Executive branches will always favor narrow conceptions of standing to avoid litigation. But I think HHS’s motion misses the obvious: the Trump Administration will likely cut off the payments, which moots the case. Standing is irrelevant. There is no need to litigate this further. Specifically, even if these payments are shut off, insurances companies (as I understand it) are not allowed to increase costs charged to customers. The insurers would then need to sue in the Court of Claims for the unpaid money. Stay tuned if the judgment fund is amended to prohibit payment of such bills. Trump, who apparent loves stiffing contractors he doesn’t like, may find this approach all-too-appealing.

On a related note, the Obama administration expanded on its decision to agree to a stay in U.S. v. Texas:

In Texas v. United States, No. 14-cv-254 (S.D. Tex.) (discussed at Mot. 4-5), following remand from the Supreme Court, the district court ordered the parties to meet and confer about how to proceed with the next stage of litigation. The three parties jointly agreed that because the case was at a “unique juncture” and “[g]iven the change in Administration,” a short stay was appropriate before deciding on the next steps. In this case, however, the next step is plain:to complete the already commenced briefing of this appeal.

In contrast, here, the cost-sharing subsidies are currently being paid out, and a disruption would put insurance companies at risk.

And the statutory provisions that require subsidy payments to make health coverage affordable for millions of Americans and that reimburse insurers for these vast expenses remain the law of the land. The district court’s decision thus threatens to “create untenable business uncertainty” for insurers and significant harm to consumers.

This will likely be the Obama administration’s last filing in this case. The reply brief is due January 19. Though I suppose they can file something on the eve of inauguration–which may be withdrawn the following day.

Using LexPredict’s FantasySCOTUS, a Supreme Court prediction market I created in 2009, I surveyed more than a hundred Federalist Society lawyers about who they think President Trump will nominate. (USA Today has already featured our odds). As they swiped their favorite candidate on my iPad, each attorney explained the pros and cons of the short list. The results, which fall into three categories—the front runners, the Kennedy clerks, and the dark horses—provide insights into a process shrouded in secrecy.

I discuss these results in my new essay in The Weekly Standard.

First, the Front Runners:

On February 13, 2016—four hours after Justice Scalia had passed away—CBS News hosted a debate for the GOP presidential candidates. The first question went to Trump. “You’ve said that the president shouldn’t nominate anyone in the rest of his term to replace Justice Scalia,” moderator John Dickerson said. “If you were president, and had a chance with 11 months left to go in your term, wouldn’t it be an abdication to conservatives in particular, not to name a conservative justice with the rest of your term?” Without hesitation, Trump answered, if he was elected, “we could have a Diane Sykes, or you could have a Bill Pryor, we have some fantastic people.” Ten months later, these two distinguished jurists are still the frontrunners.

After the announcement that Jeff Sessions would be nominated as Attorney General, the tide at the Mayflower rolled to Alabama’s native son, Judge William H. Pryor, Jr. A member of the Eleventh Circuit Court of Appeals, with chambers in Birmingham, Pryor was the preferred pick of the majority of attorneys I spoke with. The shared sentiment was that Sessions would most likely push for Pryor. (Although, a dissenting view was that Trump would be leery of selecting too many white guys from Alabama.) Consistently, the Federalists viewed him as a committed originalist, who was a worthy replacement for Justice Scalia. Even Pryor’s defenders, however, acknowledged his liabilities. Pryor stated that Roe v. Wade was the “worst abomination of constitutional law in our history.” During his 2003 confirmation hearing, he stood by that comment, and reiterated his “personal belief” that “the case [was] unsupported by the text and structure of the Constitution.”

Yet, Pryor’s fortitude during his hearing was seen as a virtue. Supporters viewed him as a rock-ribbed conservative who would not drift to the left—unlike past disappointing picks from Republican presidents. Fittingly, before the 2000 election, Pryor offered this supreme supplication at a Federalist Society meeting: “Please, God, no more Souters.” Pryor was universally praised as the antithesis of President George H.W. Bush’s first nomination, moderate-turned-liberal David H. Souter. The only lingering question was whether Trump should make the tougher selection for his first pick, or hold off on Pryor till later. One lawyer noted that if President Reagan had nominated Robert Bork beforeAntonin Scalia, we may have never known of a Justice Anthony Kennedy.

After Judge Pryor, most Federalist Society members favored Judge Diane S. Sykes of the Seventh Circuit Court of Appeals. In 2004, President Bush plucked Sykes from the Wisconsin Supreme Court, where she was elected five years earlier. Over the past decade, Sykes has distinguished herself as a principled jurist, with important decisions securing Second Amendment rights and protecting religious liberty. Having successfully run for elected office—something federal judges never have to do—Sykes has an endearing personality with a firm handshake. Further, at least in confidence, Federalists acknowledged the symbolism of a Trump administration nominating a female jurist. Though, some hoped to keep her on the farm team even longer to fill Justice Ginsburg’s seat.

Sykes’s biggest liability is one she cannot control: She turns 59 in December. Consistently, lawyer after lawyer at the convention told me how much they liked Sykes, but favored Pryor, who was five years younger. For a lifetime appointment, age is more than just a number. By contrast, Chief Justice Roberts, and Justices Scalia and Kagan, were all 50 when nominated. Justice Thomas was only 43. But the nomination would not be unprecedented. Justices Alito and Breyer were both 56. Justice Ginsburg was appointed at the age of 60. For whatever it’s worth, women live on average five years longer than men, 81.2 years to 76.4 years, which would cancel out Judge Pryor’s age-advantage.

Second, the Kennedy Clerks:

At the Mayflower, there was also a burgeoning support for two former law clerks of Justice Kennedy. First, Judge Raymond Kethledge was appointed by President Bush to the Sixth Circuit Court of Appeals when he was only 42. He was easily confirmed, as part of a compromise with Senate Democrats to break a judicial filibuster. Eight years later, though he has not authored many decisions on hot-button issues—he did rule against the IRS in a suit brought by the Tea Party Patriots—Kethledge’s opinions have been recognized as an “exemplar of good legal writing.”

Second, Judge Neil Gorsuch was confirmed to the Tenth Circuit Court of Appeals at the young age of 39. After a decade on the Denver-based court, Gorsuch has built his reputation as a committed originalist, who has questioned judicial deference to the administrative state. While there was not as much excitement to elevate Kethledge and Gorsuch now, the attorneys I spoke with preferred they remain available for a future nomination.

There was a sense of apprehension that Justice Kennedy, the Court’s perennial swing vote, may be averse to letting Donald Trump appoint his replacement. One way to mollify that concern, several lawyers told me, is by choosing one of Justice Kennedy’s former law clerks. Gorsuch and Kethledge would fill that role well. Brett Kavanaugh of the D.C. Circuit Court of Appeals, who also clerked for Justice Kennedy, was also seen as a possible future nominee, even though he was omitted from Trump’s list.

Finally, the Dark Horses:

While most Federalist Society lawyers supported the conventional wisdom, and others favored the Kennedy clerks, several boldly predicted that President Trump may surprise everyone with a dark horse nomination. Leading the pack was Justice Joan Larsen of the Michigan Supreme Court. At only 47 years, Justice Larsen was consistently identified as a possible “sleeper candidate” for the High Court. She clerked for Justice Scalia in 1994, and was appointed to Michigan’s High Court in 2015. Her largest perceived liability, I learned, was a strikingly short-tenure on the bench. A number of Federalists told me she should be kept on the short-list to watch her jurisprudence develop. She may be a possible replacement pick for Justice Ginsburg in the future, to the extent that President Trump wants to select a female for that seat. Though, the lawyers insisted that the White House should not bother putting her on the Sixth Circuit Court of Appeals. There is no need to risk a confrontational confirmation hearing that could be blocked by blue slips from Michigan’s two Democratic senators.

Another unlikely candidate—particularly popular among the Lone Star State’s Federalist delegation—was Justice Don Willett of the Texas Supreme Court. During the Republican primary, Willett mocked Trump on Twitter, with a now-legendary haiku: “Who would the Donald / Name to #SCOTUS? The mind reels. / Weeps – can’t finish tweet.” Fortunately, his twitter finger is second only to his judicial pen. Willett is universally praised by the libertarian wing of the Federalist Society, for his vigorous protection of economic liberty and property rights. Willett’s charming witticism, some said, was also viewed as a positive for an eventual confirmation hearing.

The final dark horse is perhaps the darkest of all: Senator Ted Cruz. Though not on the list, the former Supreme Court clerk and litigator was seen as a possible unifying pick. Cruz delivered a rousing keynote address to the Federalist Society convention, and brought the house down. The conservative and libertarian lawyers in the room—many of whom supported Cruz in the primary (myself included)—would be thrilled to see him on the Court. He is a resolute and committed originalist who, as his brief stint in the Senate shows, does not bend his principles. In many respects, that philosophy is more suited for the nine-member Court than the hundred-member Senate. As well, some of his Democratic and Republican colleagues would be all too happy to confirm him in order to get him out of the Senate! The Texan, who is only forty-five, can likely be re-elected for the next half-century. President Trump may also not want the limited-government Cruz as a thorn in his side. Lawyer after lawyer told me how much they would love Cruz on the Court—an ideal replacement for Justice Scalia—if only he would want the job. Most of the Court’s docket concerns boring matters, like tax or bankruptcy—the sexy constitutional cases are quite rare.

In conclusion, I note that ultimately, the decision will be made by a President whose formative experience was firing and hiring reality-show candidates on national television.

Ultimately, of course, the decision will be made by a single person: President Donald J. Trump. No doubt, advisers on the Justice Department Transition Team and the Federalist Society will provide the President with extensive briefings on each candidate, but as with all nominations, the decision will ultimately be personal. A brief interview in the White House—maybe 15 or 20 minutes—will decide who the next Justice is. With our reality-show president, a judge’s sweaty palms, shiny brow, or sore throat, can frustrate a lifetime’s aspiration in an instant. You’re fired! With the right chemistry, that jurist will fill Justice Scalia’s seat for the next generation. You’re hired!

 

On our eighth day of the FantasyJustice market, Judge Pryor jumped back into the lead with 32 votes in the last 24 hours (24 of which were from unique IP addresses).  He is followed closely by Judge Gorsuch. With total votes, Pryor leads Gorsuch 158-156. If we count only unique IP addresses, however, Judge Gorusch holds a lead–143 to 122. In third place is Judge Kethledge with 111 total votes, and 92 with unique IPs. In fourth place, Judge Sykes has 95 total votes, and 79 with unique IPs. I discuss these markets in my new piece in the Weekly Standard, which I’ll blog about in a separate post.

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One of the bright spots of this past week is when my mom called and asked what I thought about “Emoluments.” Never could I have possibly conceived that the Emoluments Clause would be the hot topic on National Public Radio! But it is. (I could not find any coverage in the New York Times, CNN, or any major outlet when President Obama accepted the Nobel Peace Prize or when Secretary Clinton assumed a position for which she voted for a salary increase).

I admit that my view on the Emoluments Clause is somewhat of a dodge: the President is not bound by the Emoluments Clause.

This obscure clause provides:

And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

This view is admittedly idiosyncratic. In a tweet earlier this week, Larry Tribe referred to such a theory as “ridiculous,” one only a “kook” could hold.

Just wait, @kurteichenwald: Some kook will argue the Emoluments Clause doesn’t apply to the President. Ridiculous but predictable. https://t.co/1DX5IGcQw7

— Laurence Tribe (@tribelaw) November 20, 2016

In the 2009 OLC Opinion concerning President Obama’s receipt of the Nobel prize, now-First Circuit Judge Barron wrote that:

The President surely “hold[s] an[] Office of Profit or Trust,” and the Peace Prize, including its monetary award, is a “present” or “Emolument . . . of any kind whatever.”

No analysis whatsoever followed about why the President “surely” hold such a position. One of my biggest pet peeves in legal writing is the word “certainly,” or its close cousin, “surely.” It is conclusory language that papers over the fact that the writer hasn’t made an actual argument. Such is the case here with Barron’s opinion. Fortunately, others have given this some thought.

I have long been persuaded by Seth Barrett Tillman’s tireless research, based on the text of the Constitution, that the President is not a “person holding any office of profit or trust.” Therefore, the Emoluments Clause does not apply to him. (Seth and I collaborated on a project in 2015 concerning the related issue of the incompatibility clause, which we also do not think applies to the President).

Seth summarizes his position in the New York Times.

The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., the United States) shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.

First, the Constitution does not rely on generalized “office” language to refer to the president and vice president. Where a provision is meant to apply to such apex or elected officials, the provision expressly names those officials. For example, the Impeachment Clause applies to the “president, vice president and all civil officers of the United States…”

Finally, in 1792, again during the Washington administration, the Senate ordered Secretary of the Treasury Alexander Hamilton to supply a list of persons holding office under the United States and their salaries. Hamilton’s 90-page responsive list included appointed officers in each of the three branches, but did not include any elected officials in any branch. In other words, officers under the United States are appointed; by contrast, the president is elected, so he is not an officer under the United States. Thus, the Foreign Gifts Clause, and its operative office under the United States language, does not apply to the presidency.

Agree or disagree, this theory is not “ridiculous,” and carries far more weight than David Barron’s conclusory “surely” analysis. To his credit, Tribe apologized, but still insisted Tillman was wrong.

Must apologize: turns out scholar @SethBTillman makes that argument carefully. He’s no kook, but I find the argument seriously unconvincing. https://t.co/EU7YVuWCRK

— Laurence Tribe (@tribelaw) November 22, 2016

Will Baude offered this gracious summary of Seth’s meticulous work:

Next time you confront a separation of powers problem or read through parts of the Constitution, keep Professor Tillman’s chart in hand. Suddenly, it will be hard to assume that the Constitution’s textual variations are meaningless. Indeed, Professor Tillman’s theory makes sense of patterns that most of us never saw. It brings order out of chaos. That is not to say that his position has been conclusively proven. But at this point, I think he has singlehandedly shifted the burden of proof.

Putting aside the Emoluments Clause for a moment, a subsidiary question is whether Congress can regulate the President’s business dealings through a statute. Yesterday in an interview with the New York Times, President-elect Trump rejected any ethical concerns about his business interests:

The law’s totally on my side, meaning, the president can’t have a conflict of interest

Almost immediately, Twitter erupted with flashbacks to Richard Nixon, who famously said “Well, when the president does it, that means it is not illegal.” As a statutory matter, he is correct. Under 18 U.S.C. 208, the President and Vice President are exempted from the conflict-of-interest law. As Josh Gerstein explains in Politico, this change was made by President George H.W. Bush.

But could Congress pass a statute regulating the President’s business interests? No. Congress can’t impose additional qualifications on the Presidency beyond those already in the Constitution, such as the Natural Born Citizen Clause. This is consistent with the Court’s holding in U.S. Term Limits v. Thornton, that states cannot impose additional criteria for members of Congress. The argument for executive independence, however, is even stronger. Individual members of Congress can easily recuse from votes that raise conflicts of interest; the President cannot.

In 1972, the Office of Legal Counsel reached this same conclusion in its analysis how then-extant ethical laws impacted Vice President Rockefeller’s business interests. (The opinion was authored by then Deputy Attorney General, and now D.C. Circuit Judge, Laurence Silberman).

I think a similar analysis applies to the Supreme Court. Because the Court is created by the Constitution itself (as are the President and the Vice President), Congress can only legislate it with respect to its other constitutional authorities–such as altering the Court’s appellate jurisdiction. Regulating the Justices’ ethical duties is not one part of their enumerated powers. In contrast, Congress can ordain and establish the inferior courts, and impose whatever additional requirements it seeks.

Agreeing with me is none other than Chief Justice Roberts, who discussed this issue, obliquely, in what I called an “advisory opinion”  In his 2012 annual report, Chief Justice Roberts hinted that an ethics law applying to the Court would not be constitutional.

The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts. Article III of the Constitution creates only one court, the Supreme Court of the United States, but it empowers Congress to establish additional lower federal courts that the Framers knew the country would need. Congress instituted the Judicial Conference for the benefit of the courts it had created. Because the Judicial Conference is an instrument for the management of the lower federal courts, its committees have no mandate to prescribe rules or standards for any other body.

This is written, perhaps intentionally, much more nebulously than the Chief usually would. But the implication is that because Congress lacks the power to create the Supreme Court (that is done by the Constitution), it lacks the power to regulate it through a code of ethics, or create a Judicial Conference to manage it. In other words, lacking the greater power to create the court implies that Congress lacks the lesser power to regulate it. I don’t find that argument, by itself, too persuasive. What the Chief was loathe to say, especially in something as innocuous as an annual report, is that the Constitution gives Congress no power to regulate the Supreme Court, only those of the lower court.  Instead, he just implies this.

So here’s another thing John Roberts and Donald Trump have in common: Congress can’t regulate their private dealings, short of impeachment.