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One of the prudential considerations in the origination clause challenge to the Obamacare mandate is that Congress has used the “shell bill shell game” fairly often. If the Court strikes down the Obamacare mandate, because it is an unconstitutional tax that originated in the Senate, many other laws would have to fall.

Justice Scalia’s opinion in Noel Canning, joined by the Chief, Thomas, and Alito, dismisses those concerns, with glee:

Our decision in Chadha illustrates that principle. There, we held that a statutory provision authorizing one House of Congress to cancel an executive action taken pursuant to statutory authority—a so-called “legislative veto”—exceeded the bounds of Congress’s authority under the Constitution. 462 U. S., at 957–959. We did not hesi­ tate to hold the legislative veto unconstitutional even though Congress had enacted, and the President had signed, nearly 300 similar provisions over the course of 50 years. Id., at 944–945. Just the opposite: We said the other branches’ enthusiasm for the legislative veto “sharp­ ened rather than blunted” our review. Id., at 944. Like­ wise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress sur­ rendered its authority by its own hand.” Clinton, 524 U. S., at 451 (KENNEDY, J., concurring). “[O]ne Congress cannot yield up its own powers, much less those of other Congresses to follow. Abdication of responsibility is not part of the constitutional design.” Id., at 452 (citations omitted).

Perhaps the Congress’s “enthusiasm” for the shell bill will “sharpen” the Court’s review. Stay tuned.

Update: Some thoughts from Nick Bagley.

In Herbert v. Kitchen, the 10th Circuit stays its ruling. This has to be the correct result in light of the Supreme Court’s previous intervention in the Utah litigation.

The Supreme Court issued this order in Herbert on January 6, 2014:

13A687 HERBERT, GOV. OF UT, ET AL. V. KITCHEN, DEREK, ET AL. The application for stay presented to Justice Sotomayor and by her referred to the Court is granted. The permanent injunction issued by the United States District Court for the District of Utah, case No. 2:13-cv-217, on December 20, 2013, is stayed pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.

The Court could not have spoken more clearly. The myriad rulings on same-sex marriage should be stayed.

The 10th Circuit explains its reasoning:

In consideration of the Supreme Court’s decision to stay the district court’s injunction pending the appeal to our circuit, we conclude it is appropriate to STAY our mandate pending the disposition of any subsequently filed petition for writ of certiorari.14 See Fed. R. App. P. 41(d)(2) (allowing circuit courts to stay their mandates pending the completion of certiorari proceedings); Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d at 17 (declaring DOMA § 3 unconstitutional and staying the mandate in the same opinion); Natural Res. Def. Council, Inc. v. Winter, 518 F.3d 704, 705 (9th Cir. 2008) (issuing a stay sua sponte); see also Latta v. Otter, No. 14-35420, Order, at 2 (9th Cir. May 20, 2014) (unpublished) (relying on the Supreme Court’s Kitchen order to stay a district court injunction against a same-sex marriage ban); DeBoer v. Snyder, No. 14- 1341, Order, at 1 (6th Cir. Mar. 25, 2014) (unpublished) (same).15

Of course this is correct. There is no other way to read the Court’s order in Kitchen. It boggles my mind how other judges, post-Kitchen, decided not to stay their ruling, only to be reversed by the court of appeals.

For example, Judge Crabb in Wisconsin declined to grant a stay, and instead scheduled a hearing on the issue, asking for additional materials. What additional facts could she conceivably need? In that interim, many couples were married, requiring the state to file an emergency motion to stay the ruling. Why couldn’t she simply stay the ruling at the outset, as the Court made clear in Kitchen? And, after a week of marriages, citing Herbert, the judge ultimately stayed the ruling.

In addition, I conclude that Herbert v. Kitchen, 134 S. Ct. 893 (2014), compels me to stay the injunction. ..

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage. It is impossible to know the Court’s reasoning for issuing the stay because the Court did not accompany the order with an opinion, but, since Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay. In following Herbert, other courts have stated that, despite the lack of any reasoning in Herbert, they did not see any grounds for distinguishing the Supreme Court’s order. E.g., DeBoer v. Snyder, No. 14-1341 (6th Cir. Mar. 25, 2014).

Plaintiffs offer two grounds for distinguishing Herbert: (1) since Herbert, each of the more than a dozen district courts considering bans on same-sex marriage has concluded that the ban is unconstitutional; and (2) same-sex marriages recognized under state law in other states since Herbert have not caused any harm to the state. However, even if I accept both of these arguments, it does not change the fact that the Supreme Court’s order in Herbert is still in place. Until the Supreme Court provides additional guidance on this issue, the unanimity of federal districts is not a dispositive factor.

It is painfully obvious what the Supreme Court did. There’s no reason to permit the judgment to go forward. But, these judges had other ideas. I am working on an article about the rule of law, and same-sex marriage. Rather than focus on the constitutional merits, I want to address how the procedural postures of these various cases played very fast and loose with the rule of law.

I highlighted these developments in this 2013 post:

Let me preface this post by stressing that I support marriage equality, and agree with the outcomes in both Windsor and Perry. This post has nothing to do with equal protection or due process. Rather, this post focuses on the rule of law.

One of the more unfortunate byproducts of recent cases concerning gay rights has been a drastic departure from the longstanding practice of the government to defend laws until a court tells them not to.

Five years ago, Prop 8 was passed by a majority of Californians (a referendum that I would not have voted for). The Governors of California, first Schwarzenegger and later Brown, made the decision not to defend a law that was passed pursuant to their own state Constitution. The decision to withdraw from the case ultimately led to the Supreme Court dismissing the appeal, because no party had standing. Abdicating the government’s obligation to defend the law deprived millions of Californians of their vote (even though today the measure would almost certainly not pass).

On remand, even though the general practice of the Supreme Court is to wait 30 days for a remand, the 9th Circuit took it upon itself to vacate the stay. (Do you remember when 20 judges on the Central District of California Bankruptcy Court found DOMA unconstitutional? In a totally bizarre and unprecedented opinion? DOJ appealed). Within hours of the 9th Circuit’s order, the California Attorney General officiated at the first marriage with the eponymous plaintiffs from Perry (I watched the beautiful ceremony). The losing party in Perry, which had every right under the law to petition for a rehearing in the due course, was forced to file an emergency appeal, asking Justice Kennedy to stop ongoing ceremonies. The Supreme Court denied it. Again, the 9th Circuit and the California Attorney General, in their haste to get the marriages started, departed from the rules [by sua sponte dissolving the Supreme Court’s stay, and not waiting for the mandate to issue].

Let’s turn to the federal government. As pointed out during oral argument, the President has long defended and enforced federal laws, unless he deemed them to be unconstitutional, or infringed on his own executive power (an OLC opinion to that effect has been on the books forea long time). The President made the odd decision to stop defending the law, but still enforced DOMA. I guess this is like “taking care, with discretion, that the laws are faithfully executed.” By withdrawing from the appeal, similar to the case in California, the federal government potentially deprived standing to anyone challenging the law (ultimately the Court founding standing for the BLAG, but this was not a given). But even worse, the Administration was so intent on this case going to the Supreme Court–even if the lower court ruled in their favor, that the SG filed a petition for certiorari before judgment in the Second Circuit. It is such an odd procedural wrangling, with the sole purpose of ensuring that *someone* could appeal on behalf of the government, even if it was the BLAG. At every state, the handling of this case departed from the normal rules of the Executive Branch.

And this behavior is not confined to the federal courts. Remember, the New Mexico clerk who decided to start issuing marriage licenses during a state of confusion and said, “If the court tells me to stop, I’ll stop.” Or the Pennsylvania Register of Wills who said, “I am going by my lights here. I am going by what I think is right.” The Attorney General declined to intervene, so the Governor stepped in. Subsequently, the Governor has announced he would not appeal a judgment striking down Pennsylvania’s ban.

This is one of my summer projects.

As an aside, the 10th Circuit also addresses the fact that the Supreme Court’s denial of a stay in the National Organization of Marriage case was (probably) due to the fact that NOM wasn’t a valid party.

The Supreme Court recently denied without explanation a motion to stay a district court’s order enjoining the enforcement of a state’s same-sex marriage ban. See Nat’l Org. for Marriage v. Geiger, No. 13A1173, 2014 U.S. LEXIS 3990 (June 4, 2014). We note that in that case the named defendants declined to defend the challenged laws before the district court. Geiger, 2014 U.S. Dist. LEXIS 68171, at *10. A third party, whose motion to intervene in the district court had been denied, sought a stay from the Supreme Court. As a result, the Court may have denied a stay in Geiger for lack of a proper party requesting one. Thus, Geiger does not clearly indicate that the Court no longer wishes to preserve the status quo regarding same-sex marriage in Utah.

Ding! Ding! Ding! Judge Posner is branching off his relentless pursuit of Justice Scalia, and now directing his ire at Chief Justice Roberts. In his latest meal at Slate’s Breakfast Table, he faults the Chief Justice’s administration of the Court.

The chief justice is the administrative head of the entire federal judiciary, which includes not only the lower federal courts but also a rather elaborate administrative apparatus (the Administrative Office of the U.S. Courts) and a major research/training institution (the Federal Judicial Center). Yet the impression one gets is that chief justices take little interest in anything other than their own court, the Supreme Court. Chief Justice Warren Burger was an exception, though probably one has to go back to Chief Justice Charles Evans Hughes, who retired in 1941, to find a chief justice who had significant leadership and management skills. (He had a most remarkable CV: practicing lawyer, law professor, secretary of state, presidential candidate, member of the Court of International Justice.) Odd that presidents no longer seem to consider the management role of the chief justice a factor to be considered in picking one.

Wouldn’t be better off with a Chief Justice Posner?

Next, Judge Posner turns to the Chief’s opinion in McCutcheon, with this harsh remark.

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated chief justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. The legislator who does not honor the implicit deal is unlikely to receive similar donations in the future. By honoring the deal he is not just being “responsive” to the political “views and concerns” of constituents; he is buying their financial support with currency consisting of votes for legislation valuable to his benefactors. Isn’t this obviously a form of corruption?

Ouch. Returning the favor, the Chief favorably cited a Posner opinion in Riley:

Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand- entry phone book, and so on. See id., at 30; United States v. Flores-Lopez, 670 F. 3d 803, 806 (CA7 2012)[Posner, J.].

One case was noticeably absent from Riley. Jones! In particular, there was no citation to Justice Scalia’s opinion. Though there was a passing mention to Justice Sotomayor’s concurring opinion on a fairly minor part about GPS.

But, there was this throw-away line about “guidance from the founding era,” without a citation, that sounds in Scalia.

Absent more precise guidance from the founding era, we generally determine whether to exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individ- ual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999). Such a balancing of interests supported the search incident to arrest exception in Robinson, and a mechanical application of Robinson might well support the warrant- less searches at issue here.

As pointed by Abbe Gluck, in Bond the Court relied on what can be called a federalism canon.

Some commentators were eagerly anticipating a major foreign affairs/treaty power opinion. Instead, many were aghast that the Court avoided the hard constitutional questions raised by the case by applying a mundane principle of statutory interpretation.  Others were even more infuriated that  the Court allegedly “invented” the interpretive principle that it used for this case. Commentators (see, e.g., this piece in the  National Review) cheered on Justice Scalia for opposing application of this brand new “federalism presumption”—the rule that ambiguous federal statutes be construed not to intrude on traditional state domains.  In fact, that principle is neither new, nor does Justice Scalia oppose it.  The principle is a first-cousin of the presumption against preemption (which has been around at least since the 1930s) and was itself announced in Gregory v. Ashcroft, 501 U.S. 452 (1991) (joined by Justice Scalia) and applied in case after case since then.  The canon is so common that not teaching it would be malpractice in any statutory interpretation course.  The worlds of statutory interpretation and constitutional law are too inextricably intertwined at this point for any Court-watchers to be surprised about the existence of these interpretive presumptions or their decisive power in major, constitutional-law-implicating cases. 

In Loughrin v. United States, Justice Kagan cited that canon to find limitations on broadly construing federal criminal laws that intrude on state criminal matters.

Unless the text requires us to do so, we should not con- strue §1344(2) as a plenary ban on fraud, contingent only on use of a check (rather than cash). As we have often (and recently) repeated, “we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction.” Bond v. United States, 572 U. S. ___, ___ (2014) (slip op., at 13) (quoting United States v. Bass, 404 U. S. 336, 349 (1971)); see Cleveland, 531 U. S., at 24 (“We resist the Government’s reading . . . because it invites us to approve a sweeping expansion of federal criminal juris- diction in the absence of a clear statement by Congress”); Jones v. United States, 529 U. S. 848, 858 (2000) (similar). Just such a rebalancing of criminal jurisdiction would follow from interpreting §1344(2) to cover every pedestrian swindle happening to involve payment by check, but in no other way affecting financial institutions. Indeed, even the Government expresses some mild discomfort with “federalizing frauds that are only tangentially related to the banking system.” Brief for United States 41.