Media Hits, Commentary, and Events (5/22/17 – 5/29/17)

June 19th, 2017

Over the past month, due to grading and other commitments, I have fallen behind updating my CV with all of my media hits. I will upload my appearances in several blog posts throughout this week. Here are my entires from May 22 through May 29, which began as a fairly slow week, but was punctuated at the end by the Fourth Circuit’s decision in IRAP v. Trump.




  • Unraveled: Obamacare, Religious Liberty, and Executive Power at Federal Bar Association of the Southern District of Texas (May 25, 2017) (Video).



“Whatever happens here will probably dictate whatever happens in the Redskins’ case,” said Josh Blackman, a professor at South Texas College of Law.

Legal scholars also are looking to the high court to decide whether religious nonprofits should be treated like churches or like secular organizations with regard to laws on retirement plans. Churches are allowed greater freedom to structure their plans under the Employee Retirement Income Security Act of 1974 (ERISA).

“If this case comes out against the Christian health care network, a lot of religious organizations will now be subject to ERISA, and the consequences of that are significant for the contraceptive mandate,” said Mr. Blackman, referencing the series of challenges religious nonprofits have lodged against Obamacare’s mandate requiring most organizations’ health plans to cover contraceptives.

“If the 9th Circuit issues an opinion and there’s no circuit split, there’s the distinct possibility the court will decide not to take the case,” said Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston and a member of the conservative Federalist Society.

“It would be insane, because there have been so many errors made in the lower court.”

But Blackman said the high court refused to take the case challenging same-sex marriage until at least one lower court had ruled that it was lawful, creating a split.

Even without a lower court split, Blackman claims the government has a number of options to choose from on how to proceed.

“The government said they want to appeal to the Supreme Court, but they didn’t say when,” he said. “The statement was somewhat open-ended.”

He claims the administration could seek a rehearing in the 9th Circuit “not if, but when they lose,” petition for a Supreme Court review of the 4th Circuit’s decision now, ask the Supreme Court for an emergency stay of that ruling or ask concurrently for a stay and for the court to take its case.

Josh Blackman, a professor at the South Texas College of Law in Houston, said he thinks the Trump factor that was central to the 4th Circuit’s ruling could be less pronounced at the Supreme Court.

The court could pay more attention to declarations from Attorney General Jeff Sessions and Homeland Security Secretary John Kelly in support of the policy. “The justices recognize their decisions will long outlive Donald J. Trump. They’ll be a little more careful to recognize that this isn’t only for or about Trump,” Blackman said.

He said the majority ruling tossed aside Supreme Court guidance on when to look behind a government action for evidence that the action was taken in bad faith.

Josh Blackman, an associate professor at the South Texas College of Law, said the dissenters’ complaints about handling of precedent are the kinds of things that could compel the Supreme Court to take the case.

“The court of appeals leapt over a lot of precedent to get where they did,” Mr. Blackman said. “There are holes in the opinion. The court will want to patch those holes.”

The case has been on the Supreme Court’s potential calendar since last September, and been listed for 14 conferences, but each time the justices have emerged to say it was re-listed for the future.

Josh Blackman, a law professor at South Texas College of Law, said usually a case is re-listed once so the justices can look at it more closely, but a second relist could mean one of the justices is writing a dissent to deny review.

“At this point, it seems unlikely the court will grant it,” said Mr. Blackman.