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I have published at National Review a new piece in light of Justice Thomas’s two dissents, joined by Justice Scalia, from denial of certiorari in 2nd Amendment cases from Highland Park and San Francisco. These are the first statements of any sort from the Supreme Court since McDonald concerning the right to keep and bear arms. Very quietly, they crack open the majestic red curtains to give us an insight of what is happening at One First Street. More importantly, they shine a not-too-flattering light on the Chief Justice, as well as Justices Kennedy and Alito. All three joined Heller and McDonald fully. Indeed, in McDonald, Justice Alito rejected the City of Chicago’s arguments that the Court should “treat the right recognized in Heller as a second-class right.”

Yet, in case after case, the lower courts whittle away Heller and McDonald. In yesterday’s dissent in Highland Park, Justice Thomas called out the Court for indeed “relegating the Second Amendment to a second-class right.” Though Thomas did not cite Alito, the jab was painfully clear. By refusing to intervene when lower courts disregard the right to keep and bear arms, the Supreme Court has done exactly what Chicago wanted, and abandoned this cornerstone of the Bill of Rights.

Here are the opening paragraphs:

In 2010, five Supreme Court justices invalidated Chicago’s handgun ban, rejecting the argument that the Second Amendment was a “second-class right.” Turns out only two of them — Justices Thomas and Scalia — really meant it. For the last five years, the right to keep and bear arms has been trapped somewhere between legal limbo and constitutional purgatory. The lower courts continue to whittle away the Supreme Court’s rulings in District of Columbia v. Heller and McDonald v. Chicago, while seven justices stand by quietly, refusing to intervene. Twice this year, Justices Thomas and Scalia have called out their colleagues for abdicating the judiciary’s safeguard of the Second Amendment. First, in June, the justices sat by idly as San Francisco rendered it impossible for law-abiding citizens to keep a handgun for self-defense. Second, yesterday, the Supreme Court looked the other way as Highland Park, Ill., criminalized an entire class of rifles owned by millions of Americans. In each case, the hard-fought victories to vindicate the right to keep and bear arms have slowly and painfully been chipped away. A careful study of Justice Thomas’s passionate yet reasoned dissents charts a proper course to restore the Second Amendment to its esteemed place in our Bill of Rights.

I’m reminded of the opening of my 2011 article, The Constitutionality of Social Cost:

During the Passover Seder, it is customary in the Jewish faith for the youngest child at the table to ask a series of four ques‐ tions that begins with, “Why is this night different from all other nights?” To understand the future of the Second Amend‐ ment, one must ask, “Why is this right different from all other rights?” In District of Columbia v. Heller1 and McDonald v. City of Chicago,2 the majority and dissenting opinions differed wildly over the historical pedigree of the individual right to keep and bear arms, but they agreed that the governmental interest in reducing the risk of danger from firearms should play some role in the constitutional calculus, and that the Second Amendment should be treated differently from other constitutional rights.

In an interview with Sahil Kapur at Bloomberg Politics, Sen. Ted Cruz offered several remarks about what he is looking for in a Supreme Court Justice, and offered some opinions on Lochner and Wickard v. Filburn.

First, Cruz explained that Republicans have an “abysmal record” for picking Supreme Court Justices, citing in particular the selections of Chief Justice Roberts, Justice Kennedy, and David Souter, as well as throwbacks to Brennan, Warren, Stevens, and Blackmun. The President should avoid stealth candidates, and focus on judges with a “long paper trail.”

“The Republicans have an abysmal record. We bat about .500,” he said. “About half of the nominees Republicans have put on the court have not just occasionally disappointed but have turned into absolute disasters.” …

Driving east in his car after a campaign stop near Iowa City, the accomplished Supreme Court litigator and former Texas solicitor general said he’d only settle for “rock-ribbed conservatives” who have “a long paper trail as principled conservative jurists.” His ideal contender would be someone who has refused to bow to pressure, rather than a “stealth candidate” without a demonstrable conservative record.

Cruz cited Souter and Roberts (whom Cruz praised at the time he was appointed, an appointment Cruz has since called a mistake) as examples of “stealth” Republican-selected nominees without a proven conservative record. If more conservative judges like Edith Jones and Mike Luttig were picked, he argued, Obamacare would have been struck down in 2012 and states wouldn’t have lost their authority to ban same-sex marriage. (Both cases were decided by a 5-to-4 margin.)

I am glad that Cruz is citing candidates who have “long paper trials” and are not “stealth candidates.” (These are traits that Randy Barnett and I extolled in the Weekly Standard). This is a departure from his 2005 Op-Ed in National Review, where he championed Roberts, in spite of his limited judicial record. Indeed Cruz cited, among others, Earl Warren, Sandra Day O’Connor, and David Souter’s limited experience to support Roberts.

Second, Cruz said that that the President must be willing to spend the political capital for a life-time appointment.

“Unlike many of the other candidates, I will be willing to spend the capital to ensure that every Supreme Court nominee that I put on the court is a principled judicial conservative,” Cruz said. …

Presidents Bush took the “easy way out” by picking Souter and Roberts, Cruz said. “They didn’t want to spend the political capital trying to confirm a proven conservative.” As examples of principled conservative justices he’d model his nominees after, Cruz cited Scalia, Clarence Thomas, William Rehnquist, and Samuel Alito.

Randy and I made the same point in our article.

Third, Ted Cruz does not think Lochner was correctly decided:

“I am not a supporter of Lochner,” Cruz said. “I believe that minimum wage laws harm the most vulnerable in our society, that they are bad policy. As a legislator, I would vote against those laws. But I do not believe it is the role of the courts to strike them down. The states have the constitutional authority to impose foolish laws … So I disagree with some conservatives who argue, à la Lochner, that the courts should impose conservative policy.”

Lochner wasn’t about the minimum wage, but a maximum hour law, although this is generally viewed as part of the broader “Lochner Era.” Sen. Rand Paul has come out in defense of Lochner during his 2013 filibuster, citing the work of David Bernstein.

Fourth, Cruz does not think Wickard v. Filburn was correctly decided:

Cruz shares those conservative concerns, saying Wickard wasn’t correctly decided.

“No,” he said. “It was not.”

Fifth, Cruz chuckled if he would pull a Taft, and serve as Justice after serving as President.

Before ending the interview, Bloomberg Politics asked Cruz if he’d accept a hypothetical nomination to the Supreme Court by a future president.

He paused for three seconds, revealing a sense of intrigue behind his smile.

“One step at a time,” he said. “Time will tell if I’m in a position to assess that offer.”

Although, a better question is whether a President Cruz would appoint himself as Justice in his final term.

I have previously blogged about how the candidates discuss the Supreme Court, including Marco Rubio (here and here), Jeb Bush (here and here), Rand Paul (here, here, and here), Ted Cruz, Hillary Clinton, and Bernie Sanders.

Disclosure: I have advised the Rand Paul campaign.

Ilya Shapiro and I have a new piece at The Federalist discussing the timing of the Solicitor General’s appeal in United States v. Texas. Since the government failed to seek a stay in May, I predicted that the Obama Administration effectively risked the Court not being able to resolve the case during the OT 2015 Term. We are now in that crunch time.

Our goal in this piece is to respond to the inevitable criticisms that it would be illegitimate for the Supreme Court to hear this case according to the normal course of its calendar process–that is offering the customary 30-day extension for the BIO, hearing the case at the appropriate conference, granting certiorari, and hearing the case when other cases granted at the same conference are held. We argue that not only would this process be appropriate, but it may even be the ideal course of action under the circumstances.

First, notwithstanding the Solicitor General’s admonition that this case warrants “immediate review,” this case could have come to the Supreme Court 6 months ago in the form of an emergency motion for a stay. These “shadow docket” appeals have become strikingly common in the same-sex marriage litigation, concerning voting rights, and everything else that is really, really urgent. The government did not seek such a stay–much to the consternation of many in the immigration community.

That is, in addition to the inexplicable delay in appealing Judge Hanen’s initial ruling, the administration didn’t seek Supreme Court review of the Fifth Circuit’s initial ruling—or even a stay of the sort that’s granted when, say, the legality of a voting law is in doubt close to an election. In a decision its supporters widely criticized, the White House opted instead to wait for the Fifth Circuit to consider the merits. That move sent a clear signal: this case is important, but not dire.

If indeed time were of the essence, as the government’s petition now insists, the solicitor general should have gone directly to the Supreme Court in May. Had he done so and prevailed on an emergency motion—perhaps after a hearing as early as June—the administration could have resumed preparations to roll out the program in the event of an “inevitable” court victory. By failing to do so, DAPA implementation is on hold.

As Texas noted in its request letter:

“If petitioners’ opposition stems from concern about short-term consequences of the district court’s preliminary injunction, petitioners could have sought a stay pending appeal.”

Texas is exactly right, and the equities suggest that the Solicitor General’s urgency may have a different base. We note:

The import of this step for the government’s top advocate—institutionally known as the “tenth justice”—is to make the court decide DAPA’s legality while President Obama is still in office.

Second, in keeping with the modus operandi of the Roberts Court–this is a case that may never need to be resolved. If the Court hears this case in the normal course of business, it could fall of the docket.

It would also mean the next president could rescind or otherwise change DAPA in a way that moots the case. In keeping with the modus operandi of the Roberts court, the justices can simply decide not to decide yet—with some hope that this turns out to be a decision not to decide ever. …

We will know as early as November 8, 2016, whether a Republican president will rescind DAPA or a Democratic one will extend it. If it’s the latter, the Supreme Court can hear the case and—we argue—find that it is unlawful. But if it’s the former, the justices can simply take the case off their plates and avoid the need to resolve a major challenge to our constitutional structure.

Unlike laws, which stay on the books regardless of who is elected, there’s a 50/50 chance that President Obama’s unilateral action will be reversed after January 20, 2017. The Supreme Court should invalidate DAPA—but only if and when it has to.

Part I of my analysis focused on standing analysis in Texas v. U.S., and Part II focused on reviewability. Part III looked at the procedural APA claim. Part IV looked at the substantive APA claim. Part V analyzes how the dissent frames DAPA. This post focuses on how the dissent rejected standing.

Judge King explains that “special solicitude” from Mass. v. EPA is a “single, isolated phrase,” and the majority misreads the opinion.

It is altogether unclear whether the majority means that states are afforded a relaxed standing inquiry by virtue of their statehood or whether their statehood, in of itself, helps confer standing.

The dissent dismisses Arizona State Legislature, which cited “special solicitude.”

The notion of “special solicitude” was cited in Arizona State Legislature v. Arizona Independent Redistricting Commission (AIRC), 135 S. Ct. 2652, 2664–65 n.10 (2015)—but as recognized by a treatise, in a footnote, in an opinion that did not concern federal–state suits. That footnote correctly observed that “[t]he cases on the standing of states to sue the federal government” are “hard to reconcile.” Id. (quoting R. Fallon et al., Hart and Wechsler’s The Federal Courts and the Federal System 263–66 (6th ed. 2009)).

Going to the statutory regime, Judge King focuses on the fact that in Mass v. EPA, there was statutory authorization for the suit:

But it did so based on Massachusetts’ quasi-sovereign interests and a provision of the Clean Air Act that specifically “recognized a concomitant procedural right to challenge the rejection of its rulemaking petition as arbitrary and capricious.” Id. at 520 (citing 42 U.S.C. § 7607(b)(1)). The Court there recognized that this statutory “authorization [was] of critical importance to the standing inquiry.” Id. at 516. By contrast, neither the INA nor the APA specifically authorizes this suit.

In a footnote, the dissent responds to the majority’s argument that the APA does provide for authorization:

The majority suggests that the APA does provide specific authorization for suit here because it “authorizes challenges to ‘final agency action for which there is no other adequate remedy in a court.’” Majority Op. at 11 (citing 5 U.S.C. § 704). If this were the case, then presumably Massachusetts would have also referenced the APA as conferring a procedural right since the plaintiffs there challenged “final agency action” within the ambit of the APA. Massachusetts did not, however, even refer to the APA. And, as discussed below, it would be odd if the APA provided such an expansive procedural right to states.

This isn’t entirely responsive. That Massachusetts chose a specific provision (from the Clean Air Act) over a general one (the APA) doesn’t seem particularly noteworthy.

Second, granting standing here “raises serious separation of powers concerns,” citing (of all people) a 1993 article by John G. Roberts. (Justice Scalia’s argument about standing and the separation of powers would also have been appropriate):

The majority’s breathtaking expansion of state standing would inject the courts into far more federal–state disputes and review of the political branches than is now the case. While the majority claims that the factors giving a state “special solicitude” to sue the federal government will “seldom exist,” its holding suggests otherwise. Majority Op. at 28. If the APA provides the requisite procedural right to file suit—as the majority indicates, see id. at 11—and a state need only assert a “quasi-sovereign interest” to get “special solicitude,” then states can presumably challenge a wide array of federal regulatory actions. The majority dismisses such a possibility as a “parade of horribles” and “unfounded” based on the lack of such lawsuits at the moment.

Roberts wrote in his article:

By relaxing standing for state suits against the federal government, we risk transforming ourselves into “ombudsmen of the administrative bureaucracy, a role for which [we] are ill-suited both institutionally and as a matter of democratic theory.”

Third, the court charges that there is no limiting principle:

Third, and relatedly, the majority’s sweeping “special solicitude” analysis “has no principled limit.” Majority Op. at 26. Recognizing that fact, it “stress[es] that [its] decision is limited to these facts.” Id. at 16. Really? If that were true, there would be no need to assuage concerns regarding the opinion’s breadth by arguing “that there are other ways to cabin policy disagreements masquerading as legal claims.” Id. at 27. It is hard for me to see the bounds of the majority’s broad ruling.

I offered several limiting principles to the standing argument in this post.

Next, the dissent turns to whether the injury is fairly traceable to DAPA. For this, Judge King asserts that the injury is self-inflicted:

This injury results from two independent decisions made by Texas: (1) an alleged decision to underwrite the costs of issuing driver’s licenses to all applicants; and (2) a decision to allow deferred action recipients to apply for driver’s licenses. The majority claims, at length, that there is a “pressure to change state law,” Majority Op. at 13, because the DAPA Memorandum has the downstream effect of expanding the pool of potential Texas driver’s license applicants, thus increasing the costs Texas has made the choice to bear. This “pressure” is entirely manufactured by Plaintiffs for this case, and the majority and the district court have signed on. Nothing in the DAPA Memorandum suggests changes in state law. And I am skeptical that an incidental increase in state costs is sufficient to confer standing for the purposes of Article III.

If these injuries are sufficient for standing, Judge King writes, many more federal programs could be challenged:

Such a theory of standing—based on the indirect economic effects of agency action—could theoretically bestow upon states standing to challenge any number of federal programs as well (assuming states have the motivation to create the factual record to support those economic effects). I have serious misgivings about any theory of standing that appears to allow limitless state intrusion into exclusively federal matters—effectively enabling the states, through the courts, to second-guess federal policy decisions— especially when, as here, those decisions involve prosecutorial discretion.

I will discuss justiciability in a future post.

One of the key questions concerning the timing of the government’s imminent cert petition in Texas v. United States is whether Texas will seek, and receive, an extension on the Brief in Opposition. To recap, the Brief in Opposition is due 30 days after the case is docketed. Under the Court’s rules, the respondent can waive a BIO–and if the Court is interested, they can request one. I can’t see Texas waiving a BIO here. More likely, Texas will seek a 30-day extension to file. If such an extension is granted, the BIO would not be due until (approximately) January 20. This later due-date will put it up for conference in February, and almost certainly too late for oral argument this term. (Unless the Court super-exedites the case–unlikely for prudential reasons because an intervening presidential election may very well moot the entire case). Instead, the case would be kicked till next term.

So will the Court grant an extension? We did some homework. Cato (on whose behalf I wrote an amicus brief in this case) Research Assistant, Anthony Gruzdis, reviewed over 700 dockets where an extension was filed for a BIO. Anthony couldn’t find a single instance where the 30-day extension was denied. This is not to say it doesn’t happen, but we weren’t able to find one. If anyone else has examples, please send them to me.

Under the normal course of procedure, Texas would get the extension as a matter of course from the Clerk (Update: not the Circuit Justice). Usually, these sorts of motions are not referred to the full Court.

A possible curve ball is if the Solicitor General pre-emptively opposes an extension on the BIO. The SG could request that the Clerk refer the motion to the entire Court–effectively insinuating that the extension was a dilatory tactic. If this sounds familiar, it ought to–just last year, Mike Carvin made similar arguments concerning the Solicitor General’s motion for an extension on the BIO in King v. Burwell. Recall that a cert petition in King and a petition for rehearing en banc in Halbig were pending simultaneously. Mike Carvin, representing both King and Halbig, asked the Clerk to refer any motion for an extension to the entire Court.

Pursuant to Rule 30.4 of this Court’s Rules, I request that any application by Respondents for an extension of that time be submitted to the full Court for consideration. For reasons explained in the Petition, this case involves a matter of urgent public importance and petitioners therefore oppose any attempt to delay its resolution.

Ultimately, the SG was given an extension, the D.C. Circuit granted en banc, then the Supreme Court granted certiorari, and the rest is history. But it is ironic if now, SG Verrilli would be on the other end of the dilatory-tactic charge, and pre-emptively oppose the extension for the BIO. Certain institutional interests would suggest that the SG should not be making this sort of an argument, but as usual, Obamacare is different.

No doubt this is something the SG’s office has already discussed, and decided on.

Update: John Elwood tweets a story about York v. Texas (11-397). The petition for certiorari was filed on 9/26/11, and the BIO was scheduled to be due on 10/28/11. Texas requested an additional 60 days to file the BIO, which would have made it due on 12/26/11–after the sweet spot of December 20 (that we have discuss a lot). Elwood said that he only approved a 42-day extension, which would have made the BIO due on 12/8/11. The clerk told Elwood that without consent, it would go to Circuit Justice Scalia–Elwood was told that Scalia would deny the extension without consent. Texas agreed to 42 days, and the BIO was filed on December 8, the reply brief was filed on December 20, and it was distributed for the January 13 conference, but ultimately denied. The lesson from Elwood’s story is that a motion for an extension without consent would be denied. Although, the incident from Mike Carvin and King v. Burwell suggests that this rule is flexible.