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Eugene Kontorovich explains that because the President has failed to transmit all of the documents (including side deals) as required by the Iran Nuclear Review Act of 2015 (Corker-Cardin), the sixty-day review period hasn’t started. Because this period hasn’t started, Eugene writes, it is irrelevant whether Congress actually votes to disapprove the removal sanctions. Eugene highlights two possible routes by which this action could be challenged in court: (1) by the House of Representatives as an institution, or (2) by private parties (such as state attorneys general) who are still subject to state-imposed sanctions.

First, citing Judge Collyer’s decision yesterday in House of Representatives v. Burwell, Eugene notes the House of Representatives has suffered an institutional injury, and would have standing.

Corker-Cardin makes clear that sanctions relief under preexisting statutory authority can only come after a positive vote, or no vote, or an overridden disapproval vote, during the “period of review.” Since the period of review has not started, sanctions relief would be unlawful. Congress suffers an injury by the president’s failure to begin “period of review.” Thus Congress can take no binding action with regard to the JCPA. This undermines Congress’s Article I ability to regulate foreign commerce, and indeed its ability to function as a legislature. By not transmitting the relevant materials, the president is preventing Congress from exercising its legislative authority. That argument – whether ultimately successful or not – may state a sufficient injury under House of Representatives v. Burwell.

Judge Collyer didn’t base standing merely on an injury, but on an injury derived from what she called the “non-appropriation theory” of standing.

Properly understood, however, the Non-Appropriation Theory is not about the implementation, interpretation, or execution of any federal statute. It is a complaint that the Executive has drawn funds from the Treasury without a congressional appropriation—not in violation of any statute, but in violation of Article I, § 9, cl. 7 of the Constitution.17 The Non- Appropriation Theory, in other words, is not about how Section 1402 is being applied, but rather how it is funded.

Specifically, the problem was not that the President was violating a statute, but that he was drawing funds in the absence of an appropriation.

The House of Representatives as an institution would suffer a concrete, particularized injury if the Executive were able to draw funds from the Treasury without a valid appropriation. The House therefore has standing to sue on its Non-Appropriation Theory, to the extent that it seeks to remedy constitutional violations.

…

Where the dispute is over true implementation, Congress retains its traditional checks and balances—most prominently its purse strings. But when the appropriations process is itself circumvented, Congress finds itself deprived of its constitutional role and injured in a more particular and concrete way.

Collyer distinguished the payment of funds without an appropriation from the alternative claim that the delay of the employer mandate was unlawful.

The Employer-Mandate Theory stands on very different footing than the Non- Appropriation Theory. The House alleges that Secretary Lew and Treasury have disregarded the congressionally-adopted employer mandate in two ways. First, Secretary Lew delayed the effective date of the mandate beyond the statutory prescription of January 1, 2014. Compl. ¶ 45. Second, he reduced the percentage of employees or full-time equivalents (FTEs) who must be offered insurance, thereby decreasing the burden on employers. Id. ¶ 46. Both of these regulatory actions are said to “injure the House by, among other things, usurping its Article I legislative authority.”

However, these are statutory claims, even if framed in constitutional terms.

Despite its formulation as a constitutional claim, the Employer-Mandate Theory is fundamentally a statutory argument. The House cites only Article I, § 1 and Article I, § 7, cl. 2 in its Complaint. See Compl. ¶¶ 91-108 (Counts VI-VIII). Those provisions, taken together, establish that Congress has sole legislative authority and that laws cannot be adopted without its approval. The House extrapolates from this that any member of the Executive who exceeds his statutory authority is unconstitutionally legislating.

The court–in what I see as its key limiting principle to prevent the floodgates from opening–explains that the implementation of law, or even extra-statutory action, is not sufficient to justify standing.

The argument proves too much. If it were accepted, every instance of an extra- statutory action by an Executive officer might constitute a cognizable constitutional violation, redressable by Congress through a lawsuit. Such a conclusion would contradict decades of administrative law and precedent, in which courts have guarded against “the specter of ‘general legislative standing’ based upon claims that the Executive Branch is misinterpreting a statute or the Constitution.” House of Representatives, 11 F. Supp. at 89-90; cf. Windsor, 133 S. Ct. at 2689 (“The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise.”).25 In sum, Article I is not a talisman; citing its most general provisions does not transform a statutory violation into a constitutional case or controversy.

So back to the injury that Eugene describes. At heart, the dispute centers over whether the President has complied with the terms of Corker-Cardin–that is whether all of the documents have been supplied, and the review period began. The challengers would say they have not been provided, and therefore the review period never began. The President (were he forced to defend it in court) would probably say based on his understanding of his responsibilities under international law, he has provided everything the Congress can compel him to provide, and therefore the 60-day clock expired. Is this, like Judge Collyer explains, an instance of the President violating the Constitution straight-up. Or, is he violating the implementation of a statute. This injury, as framed, seems far closer to the delay of the employer mandate (a statutory implementation debate) than the appropriation of funds without an appropriation (a constitutional violation debate). But I pause here to note that the ink of Judge Collyer’s decision is still not dry–and this distinction may not even be correct.

Nick Bagley writes that this distinction is “incoherent”:

But the judge’s distinction—one she characterizes as “critical” to her decision—is incoherent. Both challenges involve the violation of a constitutional requirement. The challenge to the cost-sharing reductions alleges a violation of the Appropriations Clause. And the challenge to the delay of the employer mandate alleges a violation of Congress’s constitutional authority to make laws.

Likewise, both challenges concern the implementation of a statute. The Obama administration says that an existing statute supplies a permanent appropriation for the cost-sharing reductions. It also says that the IRS has been delegated the authority to temporarily delay the effective date of statutes.

Elizabeth Price Foley (who was the first academic to suggest the House could sue over Obamacare, along with David Rivkin) writes that the distinction is an “artificial and unsustainable bifurcation.” Ian Millhiser writes, “It’s a novel distinction establishing a novel limitation to a novel rule that carves out a novel exception to decades of established precedent.” I wrote that this theory, to quote Justice Scalia in Zivotofsky, is “gerrymandered to the facts of this case.” When we all agree on a key constitutional question, you know there is something lacking in the court’s opinion.

In any event, another aspect of Judge Collyer’s opinion weakens possible institutional-based standing. As Eugene notes in his second route, there are other private parties that can sue.

Many states have their own Iran sanctions’ laws, and many are are moving to implement or strengthen such. Many of the state sanctions regimes provide that they terminate if federal sanctions are suspended. Such a state may well be sued by those subject to the state sanctions, arguing that the state sanctions are preempted by federal law, on the view that federal sanctions have been suspended or waived. The plaintiffs in such a case would certainly have standing. But as a defense to such a suit, the state could then argue that in fact the federal sanctions have not been waived or suspended, under the terms of Corker-Cardin. …

Indeed, a state Attorney General wishing to promptly challenge the President’s actions can easily do so by finding a company to enforce state sanctions laws against. This would also allow the process to take place in state court.

Indeed standing in state courts is often far more flexible than in federal courts. But this proves the point that the House doesn’t need to be the party in interest here.

Judge Collyer explains that standing is not warranted for the employer-mandate suit, private parties are free to sue over its delay.

The generalized nature of the injury alleged in the Employer-Mandate Theory is also relevant because other litigants can sue under the Administrative Procedure Act to invalidate Treasury regulations. Cf. Blackfeet Nat’l Bank v. Rubin, 890 F. Supp. 48, 54 (D.D.C.), aff’d 67 F.3d 972 (D.C. Cir. 1995). Indeed, litigation over implementing regulations has been ubiquitous since the ACA’s inception. E.g., King v. Burwell, 135 S. Ct. at 2488. A private plaintiff who is aggrieved by Treasury’s actions is free to sue and convince a court that such regulations are contrary to the ACA or otherwise improper.

This is almost certainly wrong, with respect to Obamacare. One of the insidious aspects of the Obama administration’s delays of penalties is that no one is injured (see my Cato brief in King v. Burwell). The plaintiffs in King v. Burwell–who were in a very slim income band–were only able to establish standing because the imposition of the mandate, in light of the subsidies, means they would have to pay more money. For virtually every income band, that would not be the case. I still haven’t seen how anyone would have standing to challenge the delay of the employer mandate. As Elizabeth notes, the 7th and 11th Circuits have tossed those challenges. But as a general matter, the court is correct–where private parties can sue, prudence dictates the House shouldn’t. This case can make it to Court, in a similar fashion that Dames & Moore v. Regan did.

With respect to a potential suit over the Iranian sanctions–assuming standing is present–I think Zivotofsky v. Kerry is quite relevant. Zivotofsky was unique. We were in Zone 3 of Justice Jackson’s framework–Congress said to stamp the passports with Israel as the place of birth, and the President said no. The President’s powers were at his lowest ebb, and the courts must scrutinize his claim with caution. Yet, notwithstanding this fact, the Court ruled in favor of the President. Why? Even rejecting the “sole organ” dicta from Curtiss-Wright, the Court found that because the recognition power was exclusive, Congress could not force the Secretary of State to contradict the President’s own foreign policy.

So why is this relevant here? While the Court found that the recognition power is exclusive (a dubious proposition as a matter of text and history), other powers were concurrent (such as ratification of treaties and appointment of ambassadors), and others were exclusive in Congress (Art. I, Sec. 8). As Justice Kennedy explained, Congress can declare war and embargo a country the President seeks to have relations with. Will this frustrate the diplomatic process? Absolutely, but Congress can take these actions pursuant to its authority under Article I, Section 8.

One of these Article I, Section 8 powers is the power to regulate foreign commerce. Sanctions on foreign nations falls clearly within this power, which is exclusive for Congress. If Zivotofsky was a close case, because Congress was intruding on the President’s exclusive authority, this case would cut the exact opposite way–the President is intruding on Congress’s exclusive powers. But then again, I don’t think we are Jackson’s zone 3. There is a plausible argument that the period of review began, and there is a plausible argument that it hasn’t. This puts us, I think, in Justice Jackson’s proverbial zone of twilight. Votes by the House to vote on whether the review period began will be helpful to show that there has not been acquiescence to the President’s understanding of the law. Indeed, in Dames & Moore v. Regan, Justice Rehnquist looked to post-action behavior by the House to find signs of disapproval.

Just as importantly, Congress has not disapproved of the action taken here. Though Congress has held hearings on the Iranian Agreement itself, Congress has not enacted legislation, or even passed a resolution, indicating its displeasure with the Agreement. Quite the contrary, the relevant Senate Committee has stated that the establishment of the Tribunal is “of vital importance to the United States.” S.Rep. No. 97-71, p. 5 (1981). We are thus clearly not confronted with a situation in which Congress has in some way resisted the exercise of Presidential authority.

A vote that the review period never began is conclusive evidence of congressional “resist[ance] to the exercise of Presidential authority.” To the extent that majorities of both the House and Senate vote to reject the President’s reading of the statute (even without 60 votes), even under Dames & Moore, it will be much harder to side with the Executive in a sphere where the Congress has exclusive authority.

Here, Justice Scalia’s rejoinder to Justice Thomas’s view of executive supremacy, I think, wins the day:

That brings me, in analytic crescendo, to the concur- rence’s suggestion that even if Congress’s enumerated powers otherwise encompass §214(d), and even if the President’s power to regulate the contents of passports is not exclusive, the law might still violate the Constitution, because it “conflict[s]” with the President’s passport policy. Ante, at 24. It turns the Constitution upside-down to suggest that in areas of shared authority, it is the execu- tive policy that preempts the law, rather than the other way around. Congress may make laws necessary and proper for carrying into execution the President’s powers, Art. I, §8, cl. 18, but the President must “take Care” that Congress’s legislation “be faithfully executed,” Art. II, §3. And Acts of Congress made in pursuance of the Constitu- tion are the “supreme Law of the Land”; acts of the Presi- dent (apart from treaties) are not. Art. VI, cl. 2.

Yesterday, D.D.C. ruled that the House of Representatives suit against the Obama Administration could proceed. The House raised two claims–one you are likely familiar with, one you are likely not familiar with. When this suit was first being discussed last summer, it was initially conceived to challenge the Obama administration’s delay of the employer mandate. However, when the complaint was ultimately filed, an additional claim was added, that you are less likely familiar with. It contends that that the Obama Administration is paying subsidies to insurance companies that were never appropriated. Unlike King v. Burwell, which involved premium tax credits, this case involves cost-sharing subsidies. These payments are made to the insurers to help cover the costs of Obamacare enrollees with lower income. (That is a gross oversimplification–read Sarah Kliff and Andrew Prokop’s explanation of the facts at Vox). Judge Collyer found that the House has standing to sue on the latter claim, but not the former.

The (lengthy)analysis is after the jump.

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Yesterday, I blogged about a post Greg Lipper wrote on the Cato amicus brief in support of the Little Sisters of the Poor. Greg kindly wrote a follow-up post, which I will reply to here.

First, Greg repeats his objection to what he calls Cato’s choice between a “bludgeon and no tools at all.”

First, on the question of agency authority to issue religious accommodations, Josh incorrectly suggests that I miss a subtelty in his argument. Josh/Cato say that the Department of Health and Human Services (HHS) has authority to issue religious accommodations, but that it may not decide “which organizations were worthy of the exemption, and which would be burdened by the accommodation.” I address this argument in my original post: the Cato brief assumes that religious accommodations are all-or-nothing, but that is now how the Religious Freedom Restoration Act (RFRA) works. RFRA details when accommodations are available and when they are not (and the Establishment Clause limits accommodations that unduly harm third parties). So an agency (HHS, or otherwise) cannot, as a practical matter, offer accommodations without determining who is eligible for that accommodation and who is not. As I said in my original post, Cato “would force agencies to choose between a bludgeon and no tools at all, even when the agency would need a scalpel to craft religious accommodations consistent with RFRA.”

As much as we wish we could (kidding), Cato can’t force agencies to do, or not do anything. What constrains the agency is the authority they are given by Congress. Here, in the absence of any hint that Congress delegated the interpretive authority needed to afford some religious organizations an exemption, but arbitrarily decide others get the accommodation, HHS is limited what it can do to comply with RFRA. Agencies do not have a free-range license to do anything that would bring their actions in compliance with RFRA, like Congress could. This isn’t a question of what they can identify as a least-restrictive means, but what can they do within their powers to achieve a least-restrictive means. If the latter action is ultra vires, you do not even get to the RFRA analysis. Let me say this another way. Neither RFRA nor the ACA gives an agency plenary authority to do whatever it wants to avoid a RFRA violation–they can only do what they have the interpretive authority to do.

Second, Greg notes that we retreated in our position that Hobby Lobby provides the rule of decision.

Second, Josh’s post seems to retreat from his brief’s argument that Hobby Lobby “supplies the rule of decision” and necessarily requires an exemption for Little Sisters. In his post, he begins a merits debate, and he says that my post “rehashes the debate between the majority and dissent in Wheaton College over what exactly did Hobby Lobby hold.”

No. In the Wheaton College order, the dissent took the position that Hobby Lobby necessarily leads to the conclusion that the nonprofit accommodation satisfies RFRA’s requirements. I think that’s the best reading of Hobby Lobby, and certainly of Justice Kennedy’s position; all seven federal appeals courts to consider the question agree with me.

Retreat? Hardly. Our reading is based on the Hobby Lobby majority as ratified by six Justices in Wheaton College. The Wheaton College dissent (only Justices Ginsburg, Sotomayor, and Kagan) agree with Greg. So to the extent that there is a “debate,” it is between the Hobby Lobby majority and the Wheaton College dissent. The majority opinion provides the rule of decision. The dissent does not.

But Greg suggests that the Hobby Lobby majority “based its less-restrictive-alternative holding on the presence of the nonprofit accommodation.” Let’s take a look at what the Court wrote (which Greg quotes):

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful.

There is absolutely nothing in our brief that says “the same system cannot be made available” for religious non-profits. Congress, with a three-page statute, could do it quite easily. The fact that HHS made this system “available”–as I noted in my previous post–is not an analysis of whether it was ultra vires. This issue wasn’t briefed, and wasn’t necessary to resolve Hobby Lobby. HHS could provide this exact same accommodation, once Congress affords them the interpretive authority to do so.

To anticipate Greg’s (likely) response–but wait, Congress is gridlocked, they won’t do anything to fix the ACA. Two responses. First, isn’t that the point. Congress–even the Democratic Congress that enacted the ACA–would have never given HHS this sort of blanket authority to balance religious liberty. (We argue that they didn’t). This cannot possibly be a “permissible” construction of the statute. This makes our ultra vires argument that much stronger.

Second, this reply sounds an awful lot like Solicitor General Verrilli’s response in King v. Burwell to Justice Scalia’s question about whether Congress could amend the ACA to provide subsidies in states that did not establish exchanges.

JUSTICE SCALIA: What about ­­ what about Congress? You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue.

I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that ­­ that takes care of the problem. It happens all the time. Why is that not going to happen here?

GENERAL VERRILLI: Well, this Congress, Your Honor, I ­­ I ­­

(Laughter.)

To this, I will reply with Justice Kennedy’s remarks that notwithstanding “Gridlock,” the Court must “assume that we have 3 fully functioning branches of the government, committed to proceeding in good faith in good faith to resolve the problems of this Republic.” Indeed, this fits with the Court’s doctrine of One Last Chance–Congress could fix this problem without having to further resolve the difficult RFRA question. Let the elected branches decide best how to accommodate religious liberty and access to contraceptives.

With respect, I will save all future arguments for the merits stage briefing. I thank Greg deeply for helping to refine the arguments here–this exercise was extremely helpful.

In the Weekly Standard, Randy Barnett and I offer five lessons that should guide the next GOP selection for the Supreme Court. Here is the introduction, and the five lessons:

When Chief Justice John Roberts administers the oath of office to the next president, he will be flanked by three, and almost four, octogenarians: Justices Ruth Bader Ginsburg (83), Antonin Scalia (80), Anthony Kennedy (80), and Stephen Breyer (77). The next president will likely have the opportunity to appoint a replacement for one, two, three, or maybe even four of those justices. These decisions will reshape the Court and how it reads the Constitution for decades to come. Republican presidential candidates will likely pledge to appoint “constitutional conservatives” to the bench—which ought to mean judges who will be constrained by its original meaning. However, GOP presidents have filled 12 out of 18 Supreme Court vacancies over the past half-century, with disappointing results. This track record teaches five important lessons that should guide future nominations.

1. Bruising confirmation battles are worth the political capital for a lifetime appointment …

2. Paper trails are an asset, not a disqualification

3. Reject clichéd calls for ‘judicial restraint’

4. Focus on the Constitution, not issues du jour

5. Focus on clauses, not cases

Randy and I offer a lot of different ideas of how best to select judges, and learn from past selections (both the good and the bad). Our sincere hope is that these guidelines elevate the debate over judicial selections from hackneyed cliches to meaningful discourse.

In Kyllo v. United States (2001), Justice Scalia introduced a test to determine whether the use of a thermal imaging camera, a novel technology that could not be known at the time of the founding, constitutes a search for purposes of the Fourth Amendment.

“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v.United States, 267 U.S. 132, 149 (1925).

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.

In 2001 when this case was decided, the thermal camera was not in common use. However, this has changed. I blogged in 2013 that DARPA was working on shrinking thermal cameras to a handheld device.

Today, the Wall Street Journal reports that you can add a thermal camera to your iPhone or Android with a $250 accessory.

Heat-vision cameras have been used widely in many industries for decades: Soldiers find targets through heat-vision rifle sights, police mount them on helicopters to search for people on the ground and contractors use the sensors to look for cold air seeping into homes. Now you can buy a simple smartphone attachment to reveal the widely varying temperatures of the people and things around you.

The author recommends the Flir One:

The other big difference, one that ultimately makes Flir the better choice for most people, is that the Flir One actually has two cameras on board, a low-resolution traditional one in addition to the thermal. The real-time image on your phone is a composite of the two camera feeds, with high-contrast “edges” from the full-color camera providing much-needed definition to all of the thermal blobs. This is most helpful when you go back to look at your images later. In many cases, you’d otherwise have no clue what you’re looking at. …

But Flir currently has the edge in software. When browsing its in-app gallery of still photos, you can swipe between the full-color image and the thermal one. Seek gives you a live side-by-side view, using the built-in iPhone camera, but the images don’t line up well, and the tools Seek does offer to make use of this don’t work very well. Besides, the full-color images aren’t saved with the thermals.

So, Justice Scalia, is this is “general public use?” Maybe we can tell by how many downloads it gets in the App Store?

We’ve come a long way in the last century, as this German postcard from 1900 illustrates the X-Ray police force!

H/T Adam A.