Blog

Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

2020
2019
2018
2017
2016
2015
2014
2013
2012
2011
2010
2009

Fall 2018 Lecture Circuit Schedule

August 28th, 2018

Here is my Fall 2018 lecture circuit schedule:

  1. 8/28/18 – Federalist Society Chapter at Samford School of Law, Cumberland University.
  2. 8/29/18 – Federalist Society Chapter at University of Houston Law Center
  3. 8/30/18 – Federalist Society Chapter at University of Arizona College of Law
  4. 9/6/18 – Federalist Society Chapter at Texas A&M School of Law
  5. 9/13/18 – Federalist Society Chapter at Case Western School of Law
  6. 9/14/18 – “International Law and Policy in the Age of Trump” at Case Western Reserve School of Law
  7. 9/17/18 – Federalist Society Chapter at George Washington University Law School
  8. 9/17/18 – Cato Institute Constitution Day
  9. 9/18/18 – Federalist Society Chapter at Georgetown University Law Center
  10. 9/21/18 – The 14th Amendment at 150 Symposium, at George Mason University Scalia Law School
  11. 9/27/18 – American University Federalist Society Chapter
  12. 9/27/18 – Cato Institute Digital Event
  13. 10/2/18 – Federalist Society Chapter at University of Texas School of Law
  14. 10/4/18 – Federalist Society Chapter at University of Denver College of Law
  15. 10/4/18 – Federalist Society Chapter at University of Colorado Law School
  16. 10/5/18 – New York City Bar Association
  17. 10/9/18 – Federalist Society at Northwestern University Law School
  18. 10/10/18 – Federalist Society Chapter at Notre Dame Law School
  19. 10/11/18 – Federalist Society Chapter at Michigan State College of Law
  20. 10/12/18 – Reason Foundation at Michigan State University
  21. 10/16/18 – Federalist Society at University of North Carolina School of Law
  22. 10/17/18 – Houston Rotary Club
  23. 10/20/18 – Univeristy of Pennsylvania Law Review Symposium
  24. 10/23/18 – Federalist Society Chapter at University of Memphis School of Law
  25. 10/25/18 – Federalist Society Chapter at Arizona State College of Law
  26. 10/30/18 – Federalist Society Chapter at BYU Law School
  27. 11/2/18 – Loyola Chicago Constitutional Law Colloquium
  28. 11/6/18 – Federalist Society Chapter at FIU College of Law
  29. 11/8/18 – Federalist Society Chapter at Columbia University
  30. 11/8/18 – Federalist Society Chapter at Rutgers Law School – Newark
  31. 11/9/18 – Catholic University Law Review Symposium
  32. 11/13/18 – Federalist Society Chapter at NYU Law School
  33. 11/171/8 – Federalist Society National Lawyer’s Convention

 

Corpus Linguistics and the Second Amendment

August 7th, 2018

James Phillips and I have published an essay at the Harvard Law Review Blog, titled Corpus Linguistics and the Second Amendment.

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” In District of Columbia v. Heller, the dissenting Justices contended that this provision “is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.” In contrast, the majority opinion concluded that the Second Amendment “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Both the majority and dissent relied on originalist arguments, so the case turned, in large part, on how the phrases “keep and bear Arms”—or more precisely “keep . . . Arms” and “bear Arms”—were understood in 1791.

At the time Heller was decided, both of us were persuaded by Justice Scalia’s majority opinion, which concluded that the Second Amendment protects an individual right to possess a firearm, without regard to militia service. Yet the Supreme Court considered only a fairly narrow range of sources to interpret the critical phrase, “the right of the people to keep and bear arms.” Indeed, Justice Scalia admitted that his analysis was limited to the “written documents of the founding period that we have found” (emphasis added). Likewise, Justice Stevens’s dissent cited “dozens of contemporary texts” (emphasis added). Today, big data allows us to do much better.

Brigham Young University recently released a new database known as the Corpus of Founding Era American English (COFEA). It organized nearly 100,000 texts with over 140 million words from the start of the reign of King George III (1760) to the death of George Washington (1799). (Justice Thomas recently cited COFEA in his separate opinion in Carpenter v. United States.) These documents are not all legal sources. Rather, the corpus—or “body” of works—also includes letters, newspapers, sermons, books, and other materials to show how people from all walks of life used certain words in various contexts during the 18th century. Through the approach known as corpus linguistics, scholars can now analyze how specific words and phrases were understood during this critical period.

Applying corpus linguistics to the Second Amendment leads to potentially uncomfortable criticisms for both the majority and dissenting opinions in Heller. Both Justices Scalia and Stevens should have expressed more caution when reaching their textualist conclusions based on the narrow subset of founding-era sources that they reviewed. Going forward, judges and scholars should consider how corpus linguistics can be integrated into the broader field of constitutional interpretation to better understand the entire Constitution. This essay explores the principles of corpus linguistics in relation to three elements of the Second Amendment: “bear arms,” “keep . . . arms”, and “the right of the People.” This brief essay does not purport to provide a definitive resolution about the Second Amendment’s original understanding. Rather, this essay seeks to shed some light on the discrete textualist inquiries about which the majority and dissent in Heller disagreed, through the lens of corpus linguistics.

This piece will serve as an introduction for a much more thorough article in the works.

Can the Special Counsel Regulations Be Unilaterally Revoked?

July 5th, 2018

 

George Conway, writing in Lawfare a few weeks ago, forcefully rejected professor Steven Calabresi’s argument that the special counsel’s appointment was unconstitutional. I agree with his analysis as a general matter, though one of Conway’s particular conclusions strikes me as hasty: that “the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them.”

If the regulations can be rescinded with the stroke of the pen—and everyone from Robert Mueller to the D.C. Circuit agreed—then there is absolutely no problem with respect to the separation of powers. If, however, the regulations cannot be repealed unilaterally—for example, if the rescission may be subject to judicial review pursuant to the Administrative Procedure Act (APA)—then under Justice Antonin Scalia’s Morrison v. Olson dissent, there has been some “removal of Presidential power.” Why? In effect, through the APA, Congress would be allowing one administration to bind its successors. Under a proper application of administrative law, the Trump administration should be able to rescind the Clinton-era regulations—which did not go through the notice-and-comment process in 1999—but, as illustrated by the ongoing Deferred Action for to Childhood Arrivals (DACA) litigation, presidential reversals are not always so simple. This post will consider whether the special counsel regulations can be unilaterally revoked and, if not, whether the rescission could be subject to judicial review. At bottom, Conway is probably correct, but there is enough doubt on the point that courts could sufficiently impede the president’s recission power to raise precisely the sort of separation-of-powers problem his piece argues does not exist.

***

In May 2017, Deputy Attorney General Rod Rosenstein appointed Robert S. Mueller “to serve as a Special Counsel for the United States Department of Justice.” The order specified that “Section 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.” Perhaps the most important provision is § 600.7. Promulgated shortly after the independent counsel statute expired at the end of June 1999, this regulation imposes an important constraint on the executive branch: “The Attorney General may remove a Special Counsel for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.”

Former acting solicitor general Neal Katyal, who was involved in drafting Section 600 nearly two decades ago, explained that there were only two paths by which Mueller could be fired. First, President Trump “would have to direct Rosenstein to fire Mueller” for some form of misconduct that rises to the level of “good cause.” Second, Katyal notes, “Trump could order the special-counsel regulations repealed and then fire Mueller himself.” (I suspect that Katyal meant Trump could then order Rosenstein to fire Mueller; whether Trump could directly remove someone he did not appoint is a separate question.) Katyal does not specify exactly how the regulations could be repealed.

As a general matter, the APA affords the public an opportunity to opine on a proposed regulation through what is known as the notice-and-comment rulemaking process. Before an agency can finalize the regulation, it must consider the public comments. If the agency does not follow the procedures required by the APA, parties with standing can challenge the regulation in court. However, not all executive actions must go through this process. In 1999, Attorney General Janet Reno promulgated the special counsel regulation. She cited four reasons why the rules were exempt from the APA’s notice-and-comment process. First, “[t]his rule relates to matters of agency management or personnel, and is therefore exempt from the usual requirements of prior notice and comment and a 30-day delay in the effective date.” Second, “this rule would be exempted from the requirements of prior notice and comment as a rule of agency organization, procedure, or practice.” Third, “the effective date of the rule need not be delayed for 30 days after publication because the rule is not a ‘substantive rule.’” The fourth reason is potentially the most important:

In any event, because the provisions of the Independent Counsel Reauthorization Act of 1994 expire on June 30, 1999, the Attorney General has determined that it is imperative to have these rules governing the appointment and service of a Special Counsel in place as soon as possible. Accordingly, even if the rule were not exempt from the usual requirements of prior notice and comment and a 30-day delay in the effective date, there would be “good cause” for issuing this rule without prior notice and comment and without a 30-day delay in the effective date.

The rulemaking was published in the Federal Register on July 9, 1999, more than a week after the Independent Counsel Reauthorization Act had expired. Had the attorney general submitted the regulations for comment, the process could have been held up for months, or potentially longer. During that gap, there would have been no means to appoint a special counsel.

As a general matter, regulations that were promulgated without going through the notice-and-comment process can be rescinded in the same fashion—that is, unilaterally. Professor Mike Rappaport points out that “[i]f Reno was correct, then this suggests that the President could change the regulation rather quickly. Notice and comment would not be required.” But what if Reno was wrong, and the regulations did not satisfy one or more of the reasons she identified? In that case, Rappaport points out, “the regulation would not have been valid for this period, since it should have gone through notice and comment.” As a result, the regulations would be void ab initio and could in no way constrain Mueller’s removal.

Rappaport posits an alternate argument: What if one of Reno’s reasons justified the regulation’s enactment but not rescission? For example, there may have been good cause to skip the 30-day process in 1999, because the Independent Counsel Reauthorization Act had already expired. However, there is arguably no similar urgency today to rescind the regulations. If the district court accepted that this argument argument is correct, and the Trump administration rescinds the special counsel regulations without going through the notice-and-comment rule-making process, then the court could find that unilateral rescission violates the Administrative Procedure Act.

Even if there is an APA violation, would anyone have standing to challenge the rescission? Adam White writes on Lawfare that Congress should “legislat[e] the process by which the courts would hear a lawsuit challenging the firing of a special counsel.” However, he acknowledges that if Mueller is terminated, even in the absence of new legislation, “there would still be litigation to determine . . . whether that [good cause] standard has been met.” In such a case, Mueller himself might have standing if the executive branch attempts to rescind the regulation, thereby removing one of his tenure protections.

Even if this argument is wrong, and the rescission does not have to go through the notice-and-comment rule-making process, Mueller still might have standing to challenge the repeal. Why? The DACA litigation has illustrated that courts will review agency actions to rescind executive actions, even if that initial policy did not go through the rule-making process. For example, the Clinton-era rule-making stated that “[t]he regulations in this part are not intended to, do not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law or equity, by any person or entity, in any matter, civil, criminal, or administrative.” The 2012 DACA memorandum included very similar language, yet the judiciary has still found the rescission to be subject to judicial review.

Under such an analysis, the executive branch would have to demonstrate to the satisfaction of a district court judge that the rescission is not “arbitrary and capricious.” Traditionally, this standard has been quite deferential, but over the past 18 months some courts have applied it with more exacting precision. I pity the lawyer who has to argue in court why President Trump wants to fire Robert Mueller without good cause. It is not difficult to imagine that a district court enjoins the rescission of the special counsel regulations, much like district courts have enjoined the rescission of DACA. To be clear, this analysis would be wrong. Indeed, while the DACA rescission implicates the complicated statutory framework of immigration law, revoking the special counsel regulations exclusively concerns the president’s authority over prosecutorial discretion, an area where his discretion is at its apex. In any event, if a district court judge takes this approach, a race to the Supreme Court commences.

This process, no doubt, will take time. All the while, the president is not able to remove the special counsel, as he would have wanted to, because of Attorney General Reno’s regulations. At the American Constitution Society blog, professor Steve Vladeck sketches out one possible route for litigation:

To be fair, the Special Counsel regulation has some of the hallmarks of legislative rules (which are harder to repeal). But even if the Executive Branch claims that the Special Counsel regulation is a non-legislative rule (and, indeed, even if it is ultimately correct on that score), it is not hard to imagine that there will be litigation over that issue—litigation that could take time before definitively resolving the matter. All the while, presumably, the investigation could continue apace.

Were this process to unfold during some sort of foreign policy exigency, and the president was disabled from removing the special counsel, the separation-of-powers problems would become apparent. This hypothetical illustrates a point I made last month on Lawfare:

Without question, Robert Mueller has far more constraints on his autonomy then did Ken Starr, yet these two investigations share one important hallmark: to quote Justice Scalia’s Morrison dissent, the President is “deprive[d] … of substantial control over the prosecutory functions.” Under the extant regulations, the special counsel can only be removed for certain reasons and—in certain cases—can publicize his findings. That these restrictions fall far short of the protections afforded by the independent-counsel statute does not mean they are consistent with Justice Scalia’s dissent.

If the courts were to erroneously hold that the APA controls the rescission of the

special counsel regulations, and are subject to an “arbitrary and capricious” standard of review, then the restrictions are not quite self-imposed by the executive. In Morrison v. Olson, Congress directly imposed a constraint on the president’s removal power through the independent counsel statute. Here, however, the constraint comes from the Clinton administration. Had President Clinton simply adopted these regulations by executive order, or instructed Attorney General Reno to publish them in an internal guidance document, the restrictions would indeed be self-imposed. But the Clinton administration did not take this approach. Reno published them in the Federal Register pursuant to the Administrative Procedure Act (a law enacted by Congress, that can be enforced by the judiciary). This approach was designed to achieve some degree of permanence—as Katyal suggested—and perhaps, justiciability. I’ve referred to this process as presidential insulation.

Furthermore, the mere fact that one president tries to bind another does not render it “self-imposed.” Chief Justice John Roberts’s opinion in Free Enterprise Fund v. PCAOB recognized that one administration cannot shackle another:

Perhaps an individual President might find advantages in tying his own hands. But the separation of powers does not depend on the views of individual Presidents, see Freytag v. Commissioner, nor on whether “the encroached-upon branch approves the encroachment,” New York v. United States. The President can always choose to restrain himself in his dealings with subordinates. He cannot, however, choose to bind his successors by diminishing their powers, nor can he escape responsibility for his choices by pretending that they are not his own. (citations omitted).

In his post, Conway explained that the regulations could be “unilaterally revoked”:

And not only that, the special counsel regulations can be unilaterally revoked by the very executive branch that unilaterally created them. Indeed, according to Attorney General Janet Reno when she issued the special counsel regulations in 1999, those regulations aren’t even subject to notice-and-comment rulemaking, because they relate to “matters of agency management or personnel,” and “agency organization, procedure, or practice”—which suggests they could be dispensed with equally unceremoniously as well. In short, not only does the special counsel regulation not take power away from the executive branch, but the internal rearrangement of authority it brings about within that branch could be relatively easily undone by a presidentially removable principal officer. No matter how you cut it, to borrow Justice Scalia’s words, there has been no “removal of Presidential power”—none—let alone too much. In short, there is no serious argument that Special Counsel Mueller’s appointment violates the Appointments Clause specifically or the separation of powers generally. (emphasis added).

There should be, in short, no “serious argument” that the special counsel regulations intrude on the separation of powers. But there is such a credible argument, to the extent that a district court would find that Mueller has standing to challenge a rescission for not going through the notice-and-comment rulemaking process, and to assert that a rescission is “arbitrary and capricious.”

Cross-Posted at Lawfare

“Unprecedented” on Judge Kavanaugh’s Obamacare Decision in Seven-Sky v. Holder (2011)

July 3rd, 2018

Several media accounts have described Judge Kavanaugh’s concurring opinion in Seven-Sky v. Holder (2011) as a vote to uphold the constitutionality of the ACA. This is not correct. Rather, the opinion involved a fairly intricate application of the Tax Anti-Injunction Act. Perhaps more importantly, the opinion elucidates Judge Kavanaugh’s views on, in his own words, “courts of judicial restraint.” In my first book, Unprecedented: The Constitutional Challenge to Obamacare, I discussed Judge Kavanaugh’s opinion, as well as that of Judge Sutton in Thomas Moore Law Center v. Obama (2011). Because this issue is suddenly timely, I reproduce those chapters (starting on p. 150) in their entirety to provide full context about Seven-Sky. I’ve also uploaded the transcript of the Seven-Sky oral argument.

A Capital Case

Before the ACA made its way to One First Street NE, it had one final pit stop to make in Washington, D.C., about half a mile down Constitution Avenue at the E. Barrett Prettyman U.S. Courthouse. There the D.C. Circuit Court of Appeals would be the final arbiter to weigh in on the ACA before the Supreme Court took over.

The D.C. Circuit held oral argument on September 23, 2011. The panel was loaded with two conservative all-stars: Judges Laurence Silberman and Brett Kavanaugh. Silberman, who had been appointed by President Reagan, was seen as a possible candidate for the Supreme Court in the late 1980s and early 1990s. He had delighted conservatives with his significant opinion in Parker v. District of Columbia, finding that the Second Amendment protects an individual right to keep and bear arms. The Supreme Court would agree with Silberman the next year in District of Columbia v. Heller. Paul Clement had clerked for Silberman before clerking for Justice Scalia. Kavanaugh served as senior counsel to President George W. Bush before being appointed to the D.C. Circuit at the young age of forty-one. Like Sutton, Kavanaugh consistently “fed” clerks to the justices of the Supreme Court and was viewed as a possible Supreme Court nominee in a Romney administration. The third jurist was Judge Harry Edwards, a well-respected and distinguished Carter appointee. Randy Barnett praised the “intellectual fire power of the panel.”

For the first time, Neal Katyal did not present the government’s case at a court of appeals. This time, the briefs were signed by Solicitor General Donald Verrilli.

Beth Brinkmann would argue this case for the United States. Unlike her predecessor, Katyal, Brinkmann evaded any effort to identify a limiting principle. Her strategy was a dry run for Verrilli’s approach before the Supreme Court.

When Judge Silberman asked,“Let’s go right to what is your more, most difficult problem: what limiting principle do you articulate?” Brinkmann answered, “Certainly, here, Your Honor, this is a regulation of economic activity, it’s the means by which people finance their health care services, and it is using insurance, which is the customary means.” Silberman interrupted. “Counsel, you’re telling me what the facts of this case [are], but you know the difficult question for you is what kind of mandate . . . could Congress come up with under the Commerce Clause which would be unconstitutional? What kind of requirement that persons buy services or products would be unconstitutional?”

Following the office’s new strategy, Brinkmann avoided answering the question directly. “Well, certainly it would depend. . . . ” Frustrated, Silberman cut her off midsentence: “Just give me an example. Give me an example.” She wouldn’t. Silberman pressed. “Is it you’re unwilling to give me any example of a mandate that would be unconstitutional?” If so, he continued, did that “then feed into your opponent, who says you have no limiting principle?” Brinkmann replied, “Far from it, Your Honor. Not at all. I think it’s difficult.” She stuck closely to her plan.

Like Silberman, Kavanaugh was also concerned about the limiting principle. “Another major concern I have . . . is in 220 years, with a whole lot of laws and a lot of crises, Congress has never once mandated a purchase.” But even when Silberman asked Brinkmann again, “Give me an example of something that would be unconstitutional,” she didn’t answer the question. Brinkmann wasn’t unprepared—she simply did not have the authority to answer that query.

Brinkmann’s evasiveness was a preview of what her new boss, Solicitor General Verrilli, would do at the Supreme Court. Her circuitous answers were not sloppy—rather, they were part of a con- certed effort not to identify the limiting principle. The arguments at the D.C. Circuit were a walk-through—a moot court, if you will—for the Supreme Court. Ilya Shapiro “cautiously predict[ed] a 2–1 ruling in favor” of striking the mandate.

The D.C. Circuit’s opinion was released on November 8, 2011, one week before the Supreme Court would grant review of the Florida case. In a shocking development, all three judges voted to uphold the mandate, though for different reasons.

Judge Silberman, joined by Judge Edwards, decided that Congress had the authority under its commerce powers to enact the mandate. Unlike Judge Sutton, Silberman thought he was “obliged to confront the gravamen of appellants’ argument as to the scope of the Commerce Clause.” He rejected the challengers’ argument that the mandate was unprecedented. “The mandate, it should be recognized, is indeed somewhat novel, but so too, for all its elegance, is appellants’ argument.” Further, Silberman would not read an activity requirement into the Supreme Court’s cases. “In short, we do not believe these cases endorse the view that an existing activity is some kind of touchstone or a necessary precursor to Commerce Clause regulation.”

Verrilli’s strategy not to provide a limiting principle had proved successful. Silberman wrote, “We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce.” But he was not discomforted enough to strike down the law. Instead, Silberman stressed that Congress should receive the benefit of the doubt. “We are obliged— and this might well be our most important consideration—to presume that acts of Congress are constitutional.” This strategy would prove decisive to Chief Justice Roberts.

Judge Kavanaugh did not join Silberman’s opinion. Instead, he wrote a sixty-five-page opinion that argued that the court could not even decide this case—his opinion intentionally did not resolve the case on the merits.

Kavanaugh’s opinion was premised on an 1876 law called the Anti-Injunction Act (AIA) as applied to an arcane section of the tax code. Even though the government did not rely on this provision of the tax code, Kavanaugh still applied it. In fact, his highly technical analysis came out of left field (or is it right field?). No one anticipated it. During the oral argument, Judge Edwards asked Brinkmann if she had read the obscure provision that Judge Kavanaugh was asking about, and would ultimately hang his opinion on: “You haven’t read it yet, have you?” Brinkmann, who had been involved with the litigation since March 2010, replied, “No.” Judge Silberman asked her to “read it, please.” Kavanaugh joked in his opinion, “The Tax Code is never a walk in the park.”

The purpose of the Anti-Injunction Act is to prevent taxpayers from challenging a tax in court before it is assessed. Instead, they must first pay a tax under protest and challenge it after the fact by seeking a refund. The penalty under the ACA would not be assessed until 2014. In the district court, the government used the AIA as a defense. If the AIA applied, the challengers would have to wait until the tax was assessed in 2014 before challenging it. Almost every court had rejected this notion, finding that the mandate was not a “tax,” as defined by the AIA.

When Neal Katyal had assumed control of the case, he abandoned this losing position. Judge Silberman wrote of this change in his opinion: “Earlier in this litigation, the Government argued that the Anti-Injunction Act barred this suit because the shared responsibility payment is a ‘tax.’ . . . The Government has since abandoned that position.” Likewise, as Judge Motz noted for the Fourth Circuit Court of Appeals,“Both the Secretary and plaintiffs contend that the AIA does not bar this action.” Judge Kavanaugh counted ten district courts in which the government argued that the “Anti-Injunction Act barred these cases.” No one, not even the president, wanted to delay this case until 2014—when he might no longer be in office, Judge Kavanaugh reasoned. Katyal explained that the administration “changed its mind about the Anti-Injunction Act . . . presumably because of an understandable policy desire to have courts resolve the constitutional question about the individual mandate sooner rather than later.” He concluded, “We don’t think AIA applies, even if it is favorable to the government.”

One lawyer for the challengers told me that it was “remarkable” that the government conceded that the Anti-Injunction Act did not apply. It was “pretty powerful” for the government to abandon the AIA issue, as the federal government had a strong “institutional interest in having it apply.” Indeed, internally many in the Treasury Department vigorously opposed this decision. Former commissioners of the Internal Revenue Service filed a brief with the D.C. Circuit arguing that the AIA should apply. The “government saying it does not apply, and you should reach the merits” now, was significant. The administration “wanted a decision sooner rather than later.” They simply did not want to wait.

Yet Katyal’s choice put the government in an awkward position. Like Janus, he was looking both ways, and arguing simultaneously that the mandate was not a tax for purposes of the Anti-Injunction Act, and that it was a tax for purposes of the Constitution’s taxing power.

If the mandate was a tax under the AIA, the case could not be heard until 2014. This is known as a “jurisdictional” rule, meaning that courts have no discretion—it cannot be heard early. The government did not want this to happen—it wanted the case to be heard right away—so the government waived the AIA argument and gave it up. (It is impossible for the government to waive a jurisdictional rule. By finding that the penalty was not a tax for purposes of the AIA, the Court did not need to reach the issue of the government’s waiver.) However, in order for the AIA not to apply, the mandate could not be a tax. So long as the mandate was not a tax, the suit could be brought before 2014. What complicated this situation was the government’s simultaneous assertion that the mandate was a tax, for purposes of Congress’s broad power to lay and collect taxes. But if the mandate was not a tax, the government could not rely on the taxing power to support it. This head-scratching contradiction would be fully explored at the Supreme Court. If you’re confused, don’t worry—Chief Justice Roberts would untie this Gordian knot.

Kavanaugh concluded, “In any event, in my judgment, the relevant prudential considerations favor our waiting until 2014.” Kavanaugh looked beyond the upcoming presidential election. “If we do not decide the constitutional issue now, we may never have to decide it.”

Judicial Restraint

Both Judges Sutton and Kavanaugh found ways to uphold the ACA while avoiding the constitutional question and to send this dispute back to the elected branches of government. Both opinions evinced the principles of judicial restraint. Rather than engaging the constitutional issues, Kavanaugh’s and Sutton’s opinions chose to avoid them. Both sought to avoid deciding the constitutional issue today, and either require the suits to be brought in the future or, even better, place their hope in the political process to fix the mess. But they reached these conclusions in different ways.

Judge Kavanaugh expressed his sentiments of restraint during argument, tempering the “notion that [judges] all feel powerful.” He stated, “You know, we’re courts of judicial restraint. It’s a delicate act to declare an Act of Congress unconstitutional.” Kavanaugh harkened back to the New Deal clash between the Supreme Court and President Roosevelt—opposition that led Roosevelt to threaten “packing the Court” with justices of his choosing. In the future, “there could be a lot of that going on, depending on the constitutionality and the policy judgments, but why should a court get in the middle of that and risk being another 1935 situation where you’re in the middle of a change going on in how commerce is thought of in terms of the Government?” DOJ lawyers would often speak of a “sense of historical déjà vu” with the New Deal.

During oral argument in the Sixth Circuit, Judge Sutton also expressed his preference for allowing the law to go into effect before a court considered its constitutionality. Under this approach,“We don’t have to reach that issue today.” His approach allowed for “judicial restraint,” so we only “reach the hardest issues when we really have to reach them. . . . We can answer that some other day.” Sutton wrote, “Nothing prevents such individuals from bringing as-applied challenges to the mandate down the road.”

Sutton took a very humble posture in his opinion, noting that it was “not the job of a middle-management judge to abandon the distinction between taxes and penalties.” Sutton was “mindful that we at the court of appeals are not just fallible but utterly non-final in this case.” He was invoking the famous maxim from Justice Robert Jackson about the Supreme Court: “We are not final because we are infallible, but we are infallible because we are final.”

Sutton preferred to wait. “Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the people’s political representatives, rather than their judges, to have the primary say over its utility.” In an article, Judge Sutton reiterated the sentiment. “In close cases, it thus makes sense for courts to err on the side of democracy— to allow the elected branches of government to monitor, adjust to, and ultimately solve, as best they can, difficult social and economic problems.”

A year earlier, at the 2010 Federalist Society National Lawyers Convention, when Sutton had moderated a panel on Obamacare with Cuccinelli and Rosen, he had said, presciently,“We can be principled in advocating for judicial restraint.” His opinion fulfilled that aspiration. Obamacare opponents were not so sanguine about Sutton’s opinion. Ilya Shapiro wrote that “it is shocking that an avowed constitutionalist like Judge Sutton” would uphold the law in the manner he did. . . . If the [Supreme] Court joins the Sixth Circuit and goes there, it would mean putting the final nail in federalism’s coffin.” Over cocktails at the Madison Club reception during the following Federalist Society National Lawyers Convention, the two reached a rapprochement.

Michael Carvin, lead counsel for the NFIB, had worked with Sutton while he was an attorney at Jones Day. Carvin recalled that Sutton was “not a [Justice Antonin] Scalia type of a conservative,” but “more of a [Justice] Lewis Powell type of a guy.” In right-wing circles, those are fighting words. Powell was a moderate Nixon appointee who voted in favor of abortion rights, affirmative action, and other progressive issues. Even in his time at the Supreme Court, Sutton was pulled between those two poles. Sutton was hired to clerk for the then-retired Powell but would often be detailed to the chambers of Justice Scalia. One longtime Supreme Court follower told me that “Sutton’s opinion was written as memo to John Roberts of why you need to uphold the mandate.” Yet no other judge would adopt Judge Sutton’s reasoning.

Kavanaugh also articulated his vision of restraint. “To be clear, federal courts do not wait to decide constitutional cases simply because of the possibility of congressional change to the legislation or presidential non-enforcement of what the President concludes is an unconstitutional law. Delay on that basis would constitute judicial abdication, not judicial restraint. But the discussion here has been addressing the question whether there are compelling prudential considerations that would justify overriding the limits of the Anti-Injunction Act and deciding this case now.”

Kavanaugh, however, made a point in passing that was not lost on the solicitor general. A statute similar to the one Congress enacted, but without the individual mandate, said the judge, would be absolutely constitutional. Kavanaugh reasoned that a “minor tweak to the current statutory language would definitively establish the law’s constitutionality under the Taxing Clause (and thereby moot any need to consider the Commerce Clause).”

By “eliminat[ing] the legal mandate language”—that is, by deleting a single sentence—the statute would be transformed from a command on people to purchase insurance to a mere tax on those who do not have insurance. The former was of dubious constitutionality, but the latter would be well within Congress’s powers. Kavanaugh was echoing Justice Stone’s whisper to Frances Perkins, “The taxing power of the Federal Government, my dear, the taxing power is sufficient for everything you want and need.” Like Frances Perkins before him, the solicitor general listened carefully.

Simply eliminating one sentence—the mandate—would save the law. With an assist from Judge Kavanaugh, the solicitor general ad- vanced this very argument at the Supreme Court.

Update: In response to several questions about the relationship between Seven-Sky and NFIB, I post here excerpts from later chapters:

The Changing of the Generals

…

Third, Verrilli prepared for a fallback argument in the event the Court rejected the leading commerce clause position. After arriving at the office, the solicitor general thought that the government’s tax- ing power argument had not been made as well as it could be. One government attorney characterized the taxing power argument as “just going through the motions,” almost as if “we didn’t really believe it. This could be a ground on which the statute was upheld.” The D.C. Circuit Court of Appeals’ order requesting additional briefing from the government on the taxing issue underscored that the Solicitor General’s office wasn’t “conveying enough in [its] briefs.” The sentiment grew that the taxing argument was merely being raised to “preserve it,” but that it “wasn’t integral to the analysis.”

The decision to take a second look at the taxing power came from the top. One reporter who covers the Supreme Court told me that Verrilli personally “insisted on pushing” it. Of course, the “obvious problem” was that the word “tax” was not in the individual mandate provision. The word used was “penalty.” “Apart from that,” I was told by a senior DOJ official with no irony, that the tax argument “had a lot going for it.” Judge Kavanaugh’s opinion convinced the Solicitor General’s office that the “tax argument might be a more conservative and judicially restrained basis to act to uphold as a tax.” The “nomenclature was the only serious impediment to winning.” Despite this problem, the solicitor general believed that characterizing the mandate as a choice between maintaining insurance and paying a tax was not only a way of avoiding a serious constitutional question, but indeed the best reading of the law. Though it “wasn’t ideal,” the government determined that it “could manage” this argument. And the key to solving that problem of nomenclature fell directly on the shoulders of Donald Verrilli, with Judge Kavanaugh being credited with the “assist.” In what should be a permanent exhibit in the Washington Museum of Doublespeak, Verrilli persuasively argued that the mandate was, at the same time, not a tax and a tax.

…

Day One: Tomorrow It’s A Tax, But Today It’s Not

…

The hardest part of the theory was persuading the Court that de- spite two years of litigation over the individual mandate, there was in fact no mandate and no punishment for failing to comply with the provision. To Verrilli, the health care law did not compel people to buy insurance. Rather, the law only required that those who did not buy insurance to pay a tax. Such a law could more easily be justified by the taxing power. The only problem with this argument was that it did not reflect the statute that Congress wrote. This construction effectively read several words out of the ACA.

Verrilli pushed back against any questions about the mandate and rejected any assertions that it was an “entirely stand-alone” requirement to buy insurance. As the government noted in its brief, citing the opinion of Judge Kavanaugh from the D.C. Circuit,“To the extent the constitutionality of [the act] depends on whether [the minimum coverage provision] creates an independent legal obligation [a mandate], the Court should construe it not to do so.” In other words, in order to save the ACA, the Court should read the mandate to not be an actual mandate

Here is the quoted section from Solicitor General Verrilli’s brief:

It is beyond dispute that the taxing power would permit Congress to create incentives for the purchase of health insurance by “impos[ing] a lower tax rate on people with health insurance than those without it.” Thomas More, 651 F.3d at 550. Similarly, the taxing power “readily” permits Congress to impose a “[t]ax on individuals without acceptable health care coverage.” Seven-Sky, 661 F.3d at 49-50 (citation omitted) (Kavanaugh, J., dissenting). In Judge Kavanaugh’s view, “[t]he only reason the current statute may not suffice under the Taxing Clause”—a question he did not ultimately decide—“is that Section 5000A arguably does not just incentivize certain kinds of lawful behavior but also mandates such behavior.” Id. at 48 (citing 26 U.S.C.A. 5000A(a)) (footnote omitted). To the extent that the provision means that “a citizen who does not maintain health insurance might be acting illegally,” Judge Kavanaugh reasoned, it might be outside Congress’s tax power. Id. at 48-49.

Even in Judge Kavanaugh’s view, however, a “minor tweak to the current statutory language would defini- tively establish the law’s constitutionality under the Taxing Clause.” Seven-Sky, 661 F.3d at 48. He suggested, for example, that

Congress might retain the exactions and payment amounts as they are but eliminate the legal mandate language in Section 5000A, instead providing some- thing to the effect of: “An applicable individual with- out minimum essential coverage must make a pay- ment to the IRS on his or her tax return in the amounts listed in Section 5000A(c).”

Id. at 49.
In fact, no “minor tweak to the current statutory language” (Seven-Sky, 661 F.3d at 48 (Kavanaugh, dissent- ing)) is required because Section 5000A as currently drafted is materially indistinguishable from Judge Kavanaugh’s proposed revision. Statutory provisions “must be read in * * * context and with a view to their place in the overall statutory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep’t of the Treasury, 489 U.S. 803, 809 (1989)). When understood as an exercise of Congress’s power over taxation and read in the context of Section 5000A as a whole, subsection (a) serves only as the predicate for tax consequences imposed by the rest of the section. It serves no other pur- pose in the statutory scheme. Section 5000A imposes no consequence other than a tax penalty for a taxpayer’s

…

Perhaps the only pundit who realized the ingenuity of Verrilli’s strategy was Harvard Law School professor Larry Tribe—the same professor Kagan had exchanged celebratory emails with on the day the law was enacted. On Thursday, March 29, 2012, in his “Think- ing About the Constitution” class for Harvard undergraduates, Tribe made prescient comments. . . . Tribe went on to comment on the solicitor general’s response to Roberts’s question: “What if somebody for example is on probation, and is asked, ‘Have you violated any federal law lately?’ could the person truthfully answer, ‘No, I haven’t,’ even though the person didn’t purchase the required insurance but merely paid the penalty?”

The Solicitor General said, “I assure the Court”—and he’s in a position to do so given his pivotal place in the Justice Depart- ment and in the government—“I assure the Court that any- one who pays the penalty when required will not be deemed a lawbreaker from the perspective of the United States government.” Well, given that assurance, it becomes considerably more plausible to see the law being upheld under the taxing power, as Judge Kavanaugh suggested it would be [as] if the law were interpreted this way. Kavanaugh is in the D.C. Circuit in the case that I emphasized earlier. So that’s one straw in the wind that I think is sort of more or less overlooked in the media discussions but that I think could be very important.

Tribe nailed it less than twenty-four hours after the arguments concluded and before the justices even met at the pivotal conference. But for the moment, it would be one of Tribe’s former constitutional law students who reveled in the spotlight.

 

FantasySCOTUS Predicted Gorsuch — Cast Your Vote For Justice Kennedy’s Replacement

June 27th, 2018

On November 20, 2016, FantasySCOTUS predicted that Neal Gorsuch would replace Justice Scalia on the Supreme Court. The wisdom of the crowd prevailed.

Today, we have opened the prediction market to select Justice Scalia’s replacement.

Make your selection today!