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Si Lazarus and Elisabeth Stein link to a CRS report concerning the lawfulness of the Administration’s decision to twice delay the employer mandate. They concluded that there is “no legal basis” to a challenge to the delay. I think the report says a lot less. The first 13 pages of the report, titled “A Primer on the Reviewability of Agency Delay and Enforcement Discretion,” are background about the Court’s precedents concerning delays of agencies meeting statutory deadlines. The actual analysis of the ACA takes up three paragraphs.

First, it finds that the IRS’s 2013 notice would be considered a “guidance document.”

For example, on July 3, 2013, the Internal Revenue Service (IRS) issued Notice 2013-45 (Notice), stating that the IRS would not enforce the “employer mandate” of the ACA during 2014 in order to allow for “additional time for input from employers” on how the law can be effectively implemented.76 The Notice further encourages employers to “voluntarily comply with the information reporting provisions.”77 The IRS promulgated the Notice without undergoing notice and comment rulemaking procedures. However, the IRS does not appear to impose a new legal obligation on any parties, but, rather, the IRS seems to notify the public of its intent to not enforce these provisions against employers during 2014.78 A court would likely find that such a statement is a guidance document, because it merely notifies the public on how the agency plans to perform a discretionary function—enforcement discretion.79

However, in other circumstances, an agency’s declaration of a delay or enforcement policy could require notice and comment procedures. In February 2014, the IRS announced final regulations implementing the employer mandate from the Affordable Care Act.80 In those regulations, the IRS provided for “transition relief” from the employer mandate tax for certain employers—that is, qualifying employers would not have to pay the tax.81 In order to be eligible for transition relief, employers must certify that they have met certain requirements established by the agency.82 Here, because the IRS is requiring employers to conduct a specific activity in order to be eligible for the transition relief—that is, provide certification—the transition relief is imposing a legal obligation on a party in order to qualify for a specific form of tax treatment. It would appear that an agency taking this approach to delaying a statutory provision would have to use informal rulemaking procedures because the agency would impose a legal obligation on a party, who wanted to benefit from the delay.83

Under the other form of agency delay—that is, where an agency fails to take a discrete action by a statutory deadline—no rulemaking is required. Often the agency has simply not been able to accomplish the required action within the time provided by Congress. In this type of situation, the agency has not taken any action; therefore, no rulemaking procedures are required. However, as mentioned above, an agency may be subject to a suit by a party seeking to compel the agency to take action.84

As I write this, the House Rules Committee hearing is creeping into a fifth hour. It has been an enlightening discussion on constitutional law with testimony from Elizabeth Price Foley, Jonathan Turley, Si Lazarus, and Walter Dellinger. Even though the hearing is still not over, the National Journal already has a summary (at least from hour 1).

You should download and read their testimony:

Elizabeth Price Foley (witness statement)

Jonathan Turley(witness statement)

Walter Dellinger (witness statement)

Simon Lazarus (witness statement)

The stamina to handle such a lengthy hearing with so many questions is remarkable.

It seems that the Supreme Court was alerted to Justice Scalia’s mistake in the recent EPA case by Professor Richard Lazarus. It also seems that there are “formal rules and procedures” to notify the Court of mistakes. And the Court acknowledged this mistake.

Turns out that after he discovered Justice Scalia’s error about Whitman v. American Trucking (see my earlier post of this morning), Lazarus invoked the Court’s formal rules and procedures and wrote it a letter pointing out the mistake.  Not only did a new version of the Scalia dissent magically appear this morning on the Court’s website, but as Richard noted in an email he sent to an environmental law professors’ list serve of which I am a member, so too did a new heading.

Does anyone know what these “formal rules and procedures” are? I can’t seem to find anything about it in the Court’s rules.

In the past, I have questioned the significance of briefs authored by members of Congress, who drawing on their experience in the legislative process, try to tell courts what the law really means. I think these briefs are not particularly helpful. These types of briefs are not submitted by scholars who closely inspected the record, or experts who have views on the law, but instead by the architects of a law. While this group is certainly qualified to discuss the record, they submit the brief because of the gravitas of their role in the legislature. In other words, the not-too-subtle hint to the court is that our vision of the history is the best because we were there.

That should be true in the abstract, except when you consider the circumstances in which the brief is filed. It is not filed by all 535 members of Congress, nor is it filed by even the members of Congress who voted for the law. It is usually field by a handful of vocal legislators who likely were instrumental in the law being passed. It is entirely conceivable that the views they hold, and write in the brief, represents those of everyone who voted for the law, or maybe even everyone in Congress. But I am doubtful. Congress is a they, not an it.

Putting aside Justice Scalia’s noteworthy rejection of legislative history, it is fairly accepted in legislation circles that post-enactment legislative history is the worst. Why? Because members of Congress after a law is passed are no longer constrained by the legislative bargain. They can say whatever they want, whether or not that idea was expressed during the debate, or whether that idea would have perhaps spiked the legislative bargain. I talk about some of those concepts in this article.

So even if members of Congress are making post-enactment statements about the legislative record, and are citing accurately to the record (I have no reason to think they are not), the context and nature of the arguments, and the principles they give to Congress as aw hole, are shaded by the very post-enactment sentiments that renders post-enactment history inherently unreliable. That’s not to say the arguments are wrong. Rather, I think members of congress, seeking to persuade a court to rule a certain way, can rely on individualistic understandings of what happened, rather than the broader collective will.

I expressed these concerns when Senators McCain, Graham, and Ayotte to intervene in Hedges v. Obama (see here, here, and here), and when Senator McConnell intervened in the recess appointment case (here). I noted similar objections when 6 Democratic members of Congress, who were involved in steering the Affordable Care Act through the legislative gauntlet in 2009 and 2010, filed a brief in Halbig v. Sebelius.

 Si Lazarus of the Constitutional Accountability Center (who co-authored the Halbig brief I mentioned) penned a reply to my post. I really don’t have any issue with the merits of Si’s post. Our disagreement focuses on the relevance of the brief itself, not the actual content of the brief, which I can assume are accurate recitals of the record, though I haven’t studied the legislative record for the Halbig issue closely enough. My main objection is to the broader issue of members of Congress filing these legislative briefs, and assessing what weight they carry. (Not a big point of disagreement, but if HHS is spending money without a grant of power from congress, this would be ultra vires, and thus unconstitutional)

Si takes issue with the fact that I called the signatories of his brief “opportunistic” (Senators Baucus, Harkin, and Reid, and Representatives Levin (MI), Miller (CA), Pelosi (CA), and Waxman (CA))

In a post on his blog yesterday,  Josh Blackman impugns (as  “opportunistic”) the motivation and appropriateness of an amici curiae brief recently filed by CAC on behalf of key congressional architects of the Affordable Care Act.  Blackman makes several wild swings, so wide of the mark as to require a brief corrective response.

I was not calling the counsel at CAC opportunistic. I respect their work, though I may not always agree with it. My comments were directed at the members of Congress who helped steer the ACA though.

Let me put this bluntly, as someone who has studied the legislative process leading up to the passage of the ACA closer than  just about anyone else. The entire nature of passing this law was opportunistic. The bill was drafted behind closed doors, and only released in its final version shortly before the Christmas Eve vote, which passed on a straight party line vote. After the Scott Brown election, the Democrats relied on a bizarre version of the budget reconciliation process to make changes to the ACA, without subjecting it to the Senate filibuster. Drafting errors such as the one in Halbig were likely supposed to be fixed during the reconciliation process, but this never happened. There were lots of things that didn’t get fixed. As one member of Congress noted, “We had to take the Senate version of the health care bill. This is not anything we spent time talking about here in the House.”

In particular, former-Speaker Pelosi is ripe for these charges of opportunism. Her get-it-done-at-any-cost philosophy should estop her from being any type of spokesperson for the tenor of the Congress, and what they were trying to achieve. Her goal was to pass something, anything, and worry about the consequences later. Her statements support this.

When someone asked if the law was constitutional she asked, “Are you kidding?” On this point, Democrats owe a special debt to Si Lazarus, Caroline Frederickson, and a few others, as they drafted the only Senate constitutional findings added to the ACA (note they focused on the commerce power, not the taxing power). The House made absolutely no findings on the constitutionality of the law. No hearings were held until a year after the law was enacted. Yet, in May 2012, when asked for her forecast for the vote of the Supreme Court, Pelosi said “Nobody was frivolous with the Constitution and the health of the American people in writing the bill.” Similarly, Secretary Sebelius said “Congress carefully weighed its authority in writing the law.”

As for whether Pelosi actually knew about the provision in Halbig, I am very doubtful. Recall she said, “We have to pass the bill so that you can find out what is in it, away from the fog of controversy.” Even though she later claimed that she read the entire 2,700 page bill.

I could go on and on about the hubris with which this law was enacted. Remember “deem and pass” (what the Washington Post dubbed “procedural sleight of hand”)?

If there was some equitable cause of action that merged estoppel and chuztaph, this would enjoin Pelosi from opining on any aspect of the legislative process, and constitutionality of the ACA. As I wrote in my previous point, Pelosi is estopped from commenting on the constitutionality of the ACA.

Garrett Epps has a fascinating read in the American Prospect on the Roberts Court, that explores the dichotomy among conservatives on the Court: between those who came of age during the Reagan Administration (dedicated to judicial restraint), and those who have embraced the modern era (with a stronger focus on judicial engagement). Citing Mark Tushnet’s new book on the Roberts Court, Epps observes:

But what was “unprecedented” in Sebelius was not so much the mandate as the vision of the Constitution put forth by the “tough luck” crowd. Thus, as Tushnet suggests, it shouldn’t be surprising that it did not achieve total victory. To be sure, Roberts is thoroughly conservative. But his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama. Still counted among the right’s heroes in that decade was the 18th-century philosopher Edmund Burke, who did not believe in untrammeled “liberty.” To Burke, “the restraints on men, as well as their liberties, are to be reckoned among their rights.” …

“John Roberts’s constitutional philosophy was shaped before and during the Reagan years,” Tushnet argues, “and there’s no reason to think that he’s a partisan hack whose views change as new leaders come to the fore in the party.” Still, the new tough-luck libertarian philosophy resonates in the Court. Witness Roberts’s use of the “inactivity” argument to void the mandate under the commerce power; witness the four votes to void the whole ACA. Even a swing justice like Anthony Kennedy—like the younger and stunningly rigid Samuel Alito—was willing to adopt the tough-luck argument in its entirety. As Simon Lazarus recently pointed out in The New Republic, radical libertarian ideas are gaining ground in amicus briefs and lower-court opinions and finding their way into the minds of the conservative bloc.

I think this breakdown echoes what Randy Barnett has referred to as judicial conservatives v. constitutional conservatives. (See similar comments from Joel Alicea, and in an article I wrote in Public Affairs Quarterly on the Affordable Care Act and popular constitutionalism). In my own observations, even among FedSoc types,there is a divide between those of the Reagan generation who hold up Burke as a paragon of judicial virtue, and those who are more in the Cato/Institute for Justice crowd who are not afraid of courts stepping out to strike down popularly elected laws that violate the Constitution. Even at FedSoc events, when the goals of “judicial restraint” are mentioned, I look around and see not-complete agreement–even though at one point this was the gospel of Meese.

Epps also writes about Unprecedented, and repeats many of Andy Koppelman’s criticisms of Randy Barnett in the Tough Luck Constitution:

 Blackman has written a deeply researched, highly readable account of the conservative challenge to the ACA, which, as a recent law graduate, he witnessed from the inside; Unprecedented: The Constitutional Challenge to Obamacareincludes an introduction from its own hero, Georgetown law professor Randy Barnett. The intellectual godfather of the challenge, Barnett has been pleading the libertarian case to the Court for years (he argued and lost Gonzales v. Raich, in which he contended that Congress could not regulate personal possession of medical marijuana). His scholarship lays out a truly radical view of government and the Constitution. In The Tough Luck Constitution, Koppelman writes that Barnett “wants to privatize schools, prisons, courts, streets, parks, and the police.”

…

No one could suspect either Barnett or Blackman of crass partisanship—that is, of wanting the mandate struck down to boost the electoral chances of Mitt Romney, say, or to help Republicans retake Senate control. Both men are serious, committed scholars, and their anger arises out of principle: Roberts abdicated what they see as the proper role of a libertarian Court.

Plus this bit about fellow Volokh blogger, Sasha:

Koppelman traces the evolution of this extreme school of thought into a contemporary belief, powerful among conservative lawyers and libertarian think tanks, that any governmental regulation, and really any taxation, is not just unwise but immoral. Koppelman captures the flavor by quoting “libertarian blogger Sasha Volokh, who has argued that it would be immoral to tax people to prevent an asteroid from destroying the earth.”

The fourth book mentioned is Marcia Coyle’s thorough and comprehensive account of the Roberts Court.

Cross-Posted at Volokh.com.