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I lost count of how many district court judges read Lawrence and Windsors as unmistakeable evidence that the Supreme Court wanted lower courts to invalidate bans on same-sex marriage. Even though both decisions specifically went out of their way not to address that issue. I don’t think those were unreasonable conclusions. In fact, I think that was a reasonable conclusion, especialyl in light of Justice Scalia’s sky-is-falling dissents (which were cited with glee by the lower courts). District judges often have to follow the lead set by the Supreme Court, and make inferences on how they would decide similar issues. Sometimes it isn’t clear, but that’s why judges get paid the big bucks. That’s the way things work.

But not when it comes to something as mundane as a stay to maintain the ex ante status quo. A federal district judge in Colorado has invalidated Colorado’s ban on same-sex marriage. But, he refused to grant a stay of his ruling, and only put the judgment on hold till the Court of Appeals rules on it.

I’m not sure if the Judge is knowingly putting his head in the sand, or wishes instead to flaunt some Article III chutzpah, but I’m not buying what Lyle charitably referred to as a “gentle chiding of the Supreme Court”:

Based on the most recent stay [in Evans v. Herbert], it appears to the Court that it may well be that a message is being sent by the Supreme Court. But this Court is not some modern day haruspex skilled in the art of divination. This Court cannot – and, more importantly, it will not – tell the people of Colorado that the access to this or any other fundamental right will be delayed because it “thinks” or “perceives” the subtle – or not so subtle – content of a message not directed to this case. The rule of law demands more.

Let me deconstruct this line by line. First, the Court’s stay in Evans v. Herbert is about as clear as the Supreme Court could have done under the circumstances (It wasn’t going to weigh in on the merits of the issue). At the time, I thought it abundantly clear that lower courts should stay all rulings. Second, it doesn’t take a “haruspex” (someone who reads the future in animal entrails) to know that the Court wants to minimize the disorder caused by not staying the rulings. The Justices will resolve this case definitively sooner rather than later. Third, the message is not “subtle.” In two high-profile cases, almost immediately, the Court has instructed the lower court what to do. Fourth, this is a bizarre notion of the “rule of law,” where district judges usurp the direction of the Supreme Court.

Let’s hope the 10th Circuit has enough sense to grant a stay.

There is an odd sense of deja vu with the current Obamacare litigation.

In the early days of the individual mandate debate, a common ploy was to label arguments about the individual mandate’s constitutionality as “frivolous.” Then, when courts began to invalidate the mandate, the arguments, in the words of Jack Balkin went from “off the wall” to “on the wall.” Then, supporters of the ACA had to develop sophisticated legal arguments as to why these arguments were wrong. At this point, there was a serious legal debate. But, this effort was augmented by the standard parade of horribles, which I document at some length in my book.  If the Court strikes down the President’s signature piece of legislation of a 5-4 vote in an election year it will delegitimize the Court. If the Court strikes down the mandate, millions will lose their health insurance. The supporters of the law were playing games with people’s lives. And so on.

Let’s review the Halbig litigation, which has followed an eerily similar pattern. For nearly two years, virtually all scholars argued that the argument advanced by Jon Adler and Mike Cannon was “frivolous.” Yet, by my count, 5 out of 6 Judges (including 3 Democratic-appointed Judges) agreed that the government can’t win at Chevron Step 1. 5 out of 6!  Only one judge, Judge Davis, found that this case was open and shut at Chevron step 1.

I should remind you that Judge Davis was on the 4th Circuit panel in Liberty v. Geithner, and was the only judge who reached the commerce clause issue–the other two judges on the panel resolved it at the taxing power. He basically reached the issue, even though he agreed with the taxing power analysis. So much for judicial restraint.

Only by applying the uber-deferential Chevron Step two did 4 out of the 6 judges find that the IRS’s position was reasonable. The government being forced to win by the graces of Chevron Step 2 means this position is not frivolous. This is even less impressive than beating the rational basis test. Now, as Rick Hasen noted, this argument is now “on the wall.”

There is another parallel with Obamacare. I could not find a *single* person who argued in 2009 and 2010 that the Affordable Care Act imposed a tax on those who do not have insurance. No one. One government lawyer I interviewed for Unprecedented assured me this was how the Administration viewed it. But I could not find any contemporaneous evidence to substantiate this. Ditto for the legislative history of the issue in Halbig. As Adler and Cannon note in their WSJ Op-Ed:

If that were Congress’s intent, certainly one should be able to find some statutory language to that effect. Or contemporaneous quotes from the law’s authors explaining that they intended the Affordable Care Act to authorize subsidies in federal exchanges. The president’s supporters have had three years to find such evidence supporting their theory of congressional intent. They have come up empty.

Again, 5 out of 6 Justices agreed on this point. I suppose this is what happens when you ram a 3,000 page law through the process without any meaningful reconciliation or conferences. This was necessary because of Scott Brown’s election, as Megan McCardle recalls. They passed the law. And now, we found out what is in it.

Now that the argument is on the wall, debates are raging between textualism, purposivism, contextualism, and so many other -isms. The canons of construction are firing away at full blast. All this argumentation is evidence that the argument is not, nor has ever been “frivolous.”

And, following the pattern we saw with Obamacare I, the parade of horribles has commenced. For those of you on the ConLaw Prof list-serve, the barbs were charged at a very high level yesterday, with accusations of mean-spiritedness being thrown around vividly. Andy Koppelman, in a post titled “Halbig and hurting the innocent as a political tactic,” asks:

Q. What’s the difference between a Ukrainian rebel with a rocket launcher and a lawyer challenging the Obamacare subsidies?

A. The Ukrainian doesn’t intend to hurt innocent people.

Too soon? Koppelman piles on in a piece in TNR titled “Obamacare Opponents Are Hurting 4.5 Million Workers to Win a Political War.” Beyond the legal merits of the case, people will lose their insurance if the challengers win.

But merits aside, the case raises important questions about the ethics of political warfare. When is it acceptable to deliberately aim to harm huge numbers of people in order to score a symbolic point? The point here is to discredit Obamacare; the casualties are simply a means to that end….

If the argument is ultimately accepted by the Supreme Court, then about 4.5 million low- and middle-income workers in those states who are already receiving assistance from Obamacare will abruptly lose their benefits—not because they did anything wrong, but because this destruction furthers the political war. Their personal disasters are not unintended side effects of the litigation, but the very goal that the challengers are seeking.

…

The opponents of Obamacare have from the beginning found themselves driven by the logic of their position to make arguments that are increasingly morally repulsive. This was on display in the Supreme Court argument in March 2012. The government argued that the state legitimately could compel Americans to purchase health insurance, because the country is obligated to pay for the uninsured when they get sick. Justice Antonin Scalia responded: “Well, don’t obligate yourself to that.”

Echoing that charge is Tim Jost, who in the early days called both the mandate argument, as well as the Halbig frivolous.

Should the plaintiffs ultimately win, millions of Americans will lose their premium assistance and probably their health insurance. The individual health insurance markets may collapse in several states. This is mean-spirited litigation, intended to deny health insurance to those who Congress intended to help. It is to be hoped that in the end the courts will interpret the law as it was meant to be interpreted, and uphold the IRS rule.

Soon enough, the full-court press on Chief Justice Roberts will commence. As I said, deja vu.

Before this week, I was weighing against writing another book on the Affordable Care Act. Now, I am leaning towards continuing my work on “Unraveled,” focusing more broadly on executive power in the age of Obama. Hobby Lobby, Boehner, Halbig, Immigration, Libya, Bergdahl, etc. There’s more than enough important facts to chronicle for the ages. My article, “Congressional Intransigence and Executive Power” provides the basis of my theories.

During his remarks at the 9th Circuit Judicial Conference, Justice Kennedy apparently spoke about D.C. v. Heller, for which he provided the key 5th Vote. Correct me if I’m wrong, but I can’t recall him ever speaking about the 2nd Amendment before. Anyway, here is a writeup by Bob Egelko:

He then proceeded to a brief, historical defense of Scalia’s 2008 ruling that overturned a ban on handguns in Washington, D.C., and declared that the Second Amendment protects an individual’s right to possess at least certain firearms at home.

The Second Amendment, ratified along with the rest of the Bill of Rights in 1791, had been interpreted by the court as late as 1939 to protect only the right to bear arms in a “well-regulated militia.” But Kennedy observed that constitutional understanding can change over time — for example, the 1896 ruling in Plessy vs. Ferguson, which upheld segregation in public transportation as “separate but equal,” wasn’t overturned by the court until the 1954 Brown vs. Board of Education decision, which outlawed school segregation and mandated equal treatment of the races under the Fourteenth Amendment.

By the same token, he said, some critics have claimed that the decades, or the centuries, it took the court to declare an individual right to keep and bear arms “means that it doesn’t exist.”

“I’m not so sure,” said Kennedy, who was part of Scalia’s 5-4 majority in the 2008 ruling.

During the fascinating House Rules Committee hearing over the proposed lawsuit over the delay of the Affordable Care Act’s employer mandate, Walter Dellinger and Elizabeth Price Foley sparred over whether the President could force Congress to do something. I think there is an asymmetry between the constitutional obligations of the President and the Congress that answers that question. Simply put, the President has a duty to “take care” that the laws are faithfully executed, but the Congress has no obligation to do anything.

From my new article, “Congressional Intransigence and Executive Power.”

The President has a constitutional duty to “take care that the laws [are] faithfully executed,” but the Congress has no similar duty to “faithfully enact” laws. Rather “Congress shall have the power” to make a number of laws, but need not do so. In fact, the Constitution is entirely silent about any obligation of Congress to exercise its powers. Likewise, while the President has the duty to appoint officials—he “shall nominate” executive branch officials —the Senate’s role is limited to “Advise and Consent,” which need not be given. When Congress refuses to pass laws the executive desires, or confirm nominees the President selects, we have a political, not a constitutional problem.

Therefore, the President would have no legal grounds on which to sue Congress to force them to do something, because they have no constitutional duty to act in the first place.

The Court made this point  emphatically clear in Noel Canning. The Senate has no obligation to confirm the nominees the President selects, or any office at all.

Justice Scalia emphatically rejects the Solicitor General’s admonition that the recess appointment power is a “safety valve” for “intransigence.” The decision to confirm appointees rests solely with the Senate: “So if the Senate should refuse to confirm a nominee whom the President considers highly qualified; or even if it should refuse to confirm any nominee for an office, thinking the office better left vacant for the time being,” that is the Senate’s prerogative.” This conclusion echoes the Chief Justice’s comment during oral argument—the Senate has “absolute right not to confirm nominees that the President submits.” The President’s recess-appointment power “would not be triggered during a 4-to-9-day break,” Scalia stressed, “no matter how ‘urgent’ the President’s perceived need for the officer’s assistance.” While Justice Breyer avoided the charge that the government made the exact argument he rejected, Scalia put it plainly. The NLRB going “dark” is not a sufficient “national catastrophe” to justify bending the separation of powers.

So this would eliminate any threat of the President forcing the Congress to do something, because they have no such constitutional obligation in the first place.

Update: A point I didn’t make well–as reflected in a comment I added to the post later–was that Congress has no Article I duty to comply with the President’s agenda, in the same sense the President has an Article II duty to comply with the laws Congress enacts. Article I, by itself, doesn’t impose affirmative obligations on Congress to comply with the President’s agenda.

Even if the President’s inability to nominate officials amounted to an emergency, the President has two vested powers that would allow him to accomplish that goal, without transcending the recess appointment power: the power to convene, and adjourn Congress. Perhaps the President did need not to rely on unenumerated inherent powers, to solve the nomination problem. As Justice Scalia noted, the President could have “haled” Congress back into session, to force them to give them a special opportunity to confirm his nominees. The pedigree of the President convening Congress for nominations stretches back to our first Presidency, as George Washington relied on this power to allow the Senate to confirm “substantial number of civil and military nominations.” Presidents Buchanan, Lincoln, Andrew Johnson, Grant, and Theodore Roosevelt all convened the Senate “for the purpose of confirming nominees.” In 1989, then-Assistant Attorney General of the Office of Legal Counsel, and future Attorney General William Barr, advised President George H.W. Bush that he had the “power to convene the Senate during the planned August adjournment” to “consider[] both nominations and treaties.”

The President also retains a constitutional weapon against the Senate blocking his recess appointments, beyond a tenuous reading of the recess appointment clause. Under his vested Article II powers, he can adjourn the Senate, forcing them into recess: “in Case of Disagreement between them, with Respect to the Time of Adjournment, with Respect to the Time of Adjournment, [the President] may adjourn [Congress to such Time as he shall think proper.” The Constitution speaks to congressional gridlock—“in case of disagreement”—and gives the President a power to work around the Congress that cannot agree to adjourn. Part of the problem in Noel Canning was that the Republican-controlled House would not let the Senate recess for more than three days —hence the pro forma sessions every third day. This power has never been exercised, so it is unclear precisely how it would work. Hamilton in Federalist No. 69 would seem to read the text of the adjournment clause as giving the President the authority to resolve the specific time of adjournment, and not to adjourn Congress for other reasons: “The President can only adjourn the national legislature in the single case of disagreement about the time of adjournment.” Based on this disagreement in Noel Canning, the President could resolve the “disagreement” between the House and Senate, and adjourn both bodies.

Once adjourned—according to the majority opinion at least—the Senate would be in recess, and the President would have been authorized to make the recess appointments for all vacancies. It would seem the adjournment clause can be used to address the “congressional intransigence” at issue in this case. But instead of relying on a clearly vested power, the President sought to quietly expand a power that does not reach these circumstances.

Convening Congress for nominations of all sorts—executive branch and judicial—would bring a special solicitude to the session, and force the issue into the forefront of American consciousness. There would likely be the risk of a political blowback, for sure. But the Constitution provides an alternate avenue of redress. Likewise, adjourning Congress would likely create a political backlash, as this unprecedented move would shut down the ability of both houses of Congress to transact business. Thus there is a political price to pay for exercising this power. Perhaps this is why, in our two-century history no President, even during times of grave crisis—not the NLRB going “dark”—have ever attempted this power, which traces from the odious practice of the King to dissolve Parliament. Then again, no President ever attempted to make an appointment during a three-day break in the Senate.

That these powers are vested to the President justifies the Court’s rejection of the Solicitor General’s inherent power gloss on the recess appointment clause. With the proper checks and balances attuned to our separation of powers, the convening and adjournment power would offer a constitutional method to maneuver around congressional intransigence.

Tomorrow the Senate Judiciary Committee will hold a hearing on the proposed “Woman’s Health Protection Act.” In short, the Act purports to ban a number of state-imposed restrictions on abortion, including waiting periods, pre-abortion sonograms, regulations on clinics, requirements for admitting privileges, and many others. You can read the text of the proposed bill here.

The findings of the bill cite Congress’s power under Section 5 of the 14th Amendment, and the commerce clause, as the constitutional basis for this law:

(8) The cumulative effect of these numerous restrictions has been widely varying access to abortion services such that a woman’s ability to exercise her constitutional rights is dependent on the State in which she lives. Federal legislation putting a stop to harmful restrictions throughout the United States is necessary to ensure that women in all States have access to safe abortion services, an essential constitutional right repeatedly affirmed by the United States Supreme Court.

(9) Congress has the authority to protect women’s ability to access abortion services pursuant to its powers under the Commerce Clause and its powers under section 5 of the Fourteenth Amendment to the Constitution to enforce the provisions of section 1 of the Fourteenth Amendment.

Is this constitutional? Let’s focus on Section 5 first. The argument would go something like this. The right to an abortion is a fundamental right protected by the Due Process Clause in Section 1 of the 14th Amendment. Thus, Congress has the power to make sure states are not violating those rights through section five.

But this position raises significant Boerne v. Flores problems. Congress is attempting to flesh out the scope of the right to access an abortion, as defined by the 14th Amendment. The Court in Boerne (joined by Justices Stevens and Ginsburg, even if she regrets that vote), held that it is for the Court, and not Congress to define the liberties protected by the 14th Amendment.

The bill  bans prohibitions prior to fetal viability. This would seem to conflict with the standard articulated in Casey:

A prohibition or ban on abortion prior to fetal viability. …

A measure or action that prohibits or restricts a woman from obtaining an abortion prior to fetal viability based on her reasons or perceived reasons or that requires a woman to state her reasons before obtaining an abortion prior to fetal viability.

The bill offers a more restrictive standard than the Court has considered in Casey on waiting periods:

(3) A restriction that limits a pregnant woman’s ability to obtain an immediate abortion when a health care professional believes, based on her or his good-faith medical judgment, that delay would pose a risk to the woman’s health.

Is this wide-ranging bill in any way congruent and proportional to the constitutional rights at issue? If RFRA wasn’t, this probably isn’t.

Second, with respect to its powers under the commerce clause, I’ll quote Justice Thomas’s concurring opinion in Gonzales v. Carhart:

I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.

Does abortion have a sufficient nexus with interstate commerce to justify such a wide-ranging ban that imposes on federalism, and the ability of the states to regulate the health and safety of the clinics? Oddly enough, the word “commerce” appears only once. They didn’t even bother to add a decent Lopez commerce jurisdictional hook in the statute.

Beyond the commerce clause, let’s think about the necessary and proper clause the last, best hope of ultra vires congressional action (to quote Justice Scalia). This bill amounts to an unprecedented intrusion on the ability of states to enact health and safety regulations. It specifically limits what regulations a state can impose:

The following restrictions on the performance of abortion are unlawful and shall not be imposed or applied by any government:

Historically, these types of regulations have been solely within the provence of the state police power. Would this amount to a “great and substantive independent power” denied to Congress, when it comes to preserving federalism and states rights?

This bill is likely unconstitutional on all fronts.