A Mixed Bag: Michigan Federal Judge Grants Injunctive Relief in an HHS Mandate Challenge

• November 1, 2012 • 4:50 pm

Last evening, Judge Richard Cleland of the U.S. District Court for the Eastern District of Michigan granted an injunction against the HHS contraceptive mandate in Legatus v. Sebelius.  The order is here.  The case is a challenge to the HHS mandate that employers provide health insurance coverage of contraceptives and abortion-inducing drugs, and is brought by secular individual as well as companies seeking a religious-based exemption from the mandate on the grounds that providing such coverage would violate their Roman Catholic faith. Here is a brief outline of the order’s key findings and some commentary:

  1. In deciding whether the first plaintiff, Weingartz Supply Company, has satisfied the standing requirements, Judge Cleland declines to address whether corporations have religious free exercise rights.  However, the judge does extend free exercise protection further than other courts have in similar cases.  While other decisions cited by the judge looked to the corporation as a way to fulfill the owner’s religious goals in evaluating free exercise protection, here it’s sufficient that Daniel Weingartz (the corporation’s president) has a personal free exercise right and is defended through his company (pgs. 8-9).
  2. Regarding the standing of the second plaintiff, Legatus, the judge furthers the view of other courts in affording the government a good faith presumption that HHS and the president will keep their promise to “accommodate” other religious objectors (the only evidence of which at this time is a press conference by President Obama) and accordingly finds that Legatus’ injury is too hypothetical to qualify for relief—i.e., it cannot show a substantial burden on its exercise of religion.  (pg. 11).
  3. As a further clarification to what constitutes a substantial burden, the judge rightly notes that “courts often simply assume that a law substantially burdens a person’s exercise of religion when that person so claims” (pg. 13).  Accepting that standard, finds that a substantial burden on the plaintiffs’ religious free exercise here.
  4. When discussing whether the government possesses a compelling interest sufficient to substantially burden religious exercise, Judge Cleland notes an important point lost in the general public debate: it’s not enough that the government has a compelling interest in broadening contraceptive access; it needs to have a compelling interest in forcing the individual plaintiff to violate his conscience to achieve that objective.   As his decision states: The court must look “beyond broadly formulated interests justifying the general applicability of government mandates and scrutinize[] the asserted harm of granting specific exemptions to particular religious claimants.” (pg. 19). In the course of that argument, the government tips its hand at the likely scope of whatever “accommodation” the Obama administration would likely reach:

    The Government argues that providing a religious exemption to a secular, for-profit company would open the door for owners of other secular businesses to request religious exemptions to federal laws under RFRA, thereby essentially imposing the owners’ religious beliefs on their employees who may not share their owners’ convictions. (pg. 20).

    If that turns out to be the Obama administration’s “redline” when it comes to crafting an accommodation, it is difficult to see how the administration’s “accommodation” will safeguard the religious exercise rights of individual Americans (as opposed to religious entities), as well as individual American businesses.  As I’ve noted here, there is appellate-court case law going back to at least 1898 suggesting that entities unaffiliated with religious organizations have Free Exercise rights.

  5. Judge Cleland makes an interesting point at page 21 when discussing the Government’s compelling interest. He says that it would be wise for the plaintiffs to show how their employees can get access to the “full-range of FDA-approved contraceptives” without their company’s participating in the cost-sharing.  The judge compares this inquiry to how the Supreme Court in Wisconsin v. Yoder downplayed the state’s compelling interest in compulsory education because the Amish had vocational training.  This raises some interesting issues.Even if the government has a compelling interest in the marginal expansion of already broad contraceptive access (though as the Supreme Court said in Brown v. Entertainment Merchants Association, “the government does not have a compelling interest in each marginal percentage point by which its goals are advanced”), the analogy to Yoder here does not seem that strong.  The Court in Yoder cited the Amish use of vocational schools as a way to refute the government’s argument that the Amish families were fostering ignorance by refusing to send their children to compulsory school.  A vocational school, by its very purpose, is not going to expose children to the “full range” of government-mandated curricula from a public school.  Thus the analogy made by Judge Cleland here when he suggests the plaintiffs explain how its employees can get access to the “full range of FDA-approved contraceptives” seems unnecessary.  If one works for a company where the ownership has a religious-based exemption to something, the fact that such an exemption would not provide the same type of benefits that a non-objecting entity possesses is to be expected, not criticized.  This is why the Religious Freedom Restoration Act analysis has a “least restrictive means” component, which I discuss below.  It is not the challengers’ burden to show parity with the opportunities afforded by non-objecting entities.  Rather it’s the government’s burden to show that there isn’t a lesser restrictive way to achieve its objective without putting the objector in a religiously compromising position.
  6. In his discussion of “least restrictive means,” Judge Cleland makes many thoughtful points.  He notes that the cost to the plaintiffs in violating their consciences is “provably substantial,” and goes on at length to dismiss a formulation of the “least restrictive means” test that would functionally exempt the Government from having to show it (pg. 22-23).  He  then explains why he thinks that one of the Plaintiffs’ suggested lesser-restrictive means, the government dispensing free birth control, is logistically impractical.  Yet the judge then concedes that neither the government nor the plaintiffs will likely meet their burden on this point at trial (pg. 25).Missing from this discussion is any reference to the Newland decision this summer in the U.S. District Court for the District of Colorado, which granted injunctive relief to HHS mandate challengers.  There, the government made a comparable argument regarding the logistical hassle of its dispensing free contraceptives, but the argument was rightly dismissed by the District Court on several grounds.  One was that the government already provides free birth control to women, and the existence of such programs cuts against the notion that it would be unfeasible for the government to expand what it already does.  As the plaintiffs there noted, the administrative concern cited by the government re-casts the government’s compelling interest: no longer is it about spreading contraceptive access through cost-sharing (as such an interest is certainly met if the government directly provides the contraceptives), it’s now about the government’s administrative convenience.  The court’s other ground for dismissing the logistical hassle argument was that there were no facts suggesting that any new administrative inconveniences imposed on the government from dispensing free contraceptives would undermine its interest in expanding contraceptive access.  It’s curious that any reference to Newland is missing from Judge Cleland’s swift dismissal of this lesser restrictive alternative.
  7. Ultimately, the judge balanced the harms of granting or denying injunctive relief in favor of the plaintiffs based on their making some showing, though not a strong showing, of success on the merits.  The Judge stressed that not granting the injunction would be far more damaging to the suit going forward since denying the injunction would functionally operate as a loss on the merits for the Plaintiffs (pg. 28).  Though the Judge Cleland’s decision is lacking in some respects, the tenor of the order is sufficiently evenhanded that the plaintiffs could prevail on the merits.

Don Franzen Interviews Justice Scalia on Reading Law

• October 24, 2012 • 11:17 am

The Los Angeles Review of Books features Don Franzen’s extensive interview of Justice Scalia on his new book, Reading Law: The Interpretation of Legal Texts. The interview begins:

FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that it was time to write this book on “reading law”?

SCALIA: Oh, I don’t think there are that many treatises. I believe that the last treatise that really went through the canons systematically is a hundred years old. The canons have simply been disregarded in recent years. Indeed, they’ve been run down by the academy. So, that’s why we thought it was necessary to teach textualists — those who want to be textualists — how to do textualism. You can’t do it without knowing what are the clues to the meaning of a text.

FRANZEN: I’ve had at least one appellate case that turned on a textual issue — whether or not a particular canon applied. It does seem the treatment of the canons in the cases is sort of haphazard.

SCALIA: They are simply not taught systematically in the law schools, and you’re quite right to the extent that students learn them they learn them episodically — in this case, that case and so forth. And they ought to be taught systematically, I think.

FRANZEN: Should that be a class in law school?

SCALIA: I think there should certainly be a course on statutory interpretation, and more and more law schools have begun to have such courses. But none of them, as far as I know, go systematically through the canons, because there’s no text that has them.

FRANZEN: You and Professor Garner of course are both advocates of “textualism,” the idea that meaning is to be found in the governing text, and also for “originalism,” that you are looking for the “meaning that the text has borne from its inception” — here, I’m quoting from the book. And of course you reject judicial speculation about either what the text means from content outside of the text or the “desirability of the consequences of the reading” — that’s also from your introduction. Text of course governs, but what would you say to the argument that the ability to rely on the original meaning weakens over time? Is there a difference between applying textualism to a contract written in 2008 versus a document written in 1787?

SCALIA: No, it seems to me that the parties agreed to what they agreed to, and I don’t know why it would be fair to give one side or the other a change in the obligations simply because of the passage of time. They said what they said, and they agreed to what they agreed to. I don’t see how the antiquity of the text has any bearing on whether its proper to give it the meaning that the parties that drafted it — if it’s a bilateral contract, or the public that received it, if it’s a statute or an ordinance — understood it to mean.

FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.

SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.

A Response to Dale Carpenter on the Second Circuit and Same-Sex Marriage

• October 23, 2012 • 11:40 am

I disagree with Dale Carpenter’s claim that the First Circuit’s ruling invalidating the Defense of Marriage Act is in any significant way “more limited and incremental” than the Second Circuit’s ruling. I have critiqued both rulings at length on National Review Online’s Bench Memos (First Circuit here and here, Second Circuit here) and will limit myself here to these observations:

1. Carpenter asserts that under the First Circuit’s ruling “a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.” Well, yes and no. Yes, only in the very limited sense that it’s equally true that under the First Circuit’s ruling the Defense of Marriage Act withstands ordinary rational-basis review. (See slip op. at 14 (“Under such a rational basis standard, the … plaintiffs cannot prevail”).)

What Carpenter’s phrasing obscures is his false premise that under the First Circuit’s ruling “ordinary rational-basis review” would even apply to “a state definition of marriage excluding gay couples.” As the First Circuit explains its heightened standard of “intensified” rational-basis scrutiny, “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications” (p. 15). In support of its standard, the court notes that the Supreme Court “has now several times struck down state or local enactments without invoking any suspect classification” (p. 16 (emphasis added)). So under the First Circuit’s ruling, a state definition of marriage would be subject to “intensified” scrutiny.

The (badly confused) “federalism concerns” that the First Circuit invokes operate merely as a sort of plus-factor in how intensified scrutiny applies: in the court’s own words, a “closer examination of the justifications … is uniquely reinforced by federalism concerns” (p. 23).

Note also that the First Circuit recognizes that the “burden” that DOMA imposes on same-sex couples is much less than that imposed by a state law that prevents same-sex marriage (p. 18). So that difference cuts heavily against a state law’s surviving “intensified” review.

In sum, under the First Circuit’s ruling, state definitions of marriage would be subjected to “intensified” rational-basis scrutiny. Under the court’s reasoning, there is no reason to believe that they would survive such review. So both the First Circuit ruling and the Second Circuit ruling strongly imply a federal constitutional right to same-sex marriage that would override state marriage laws.

2. Both the First Circuit and the Second Circuit purport to invoke interests of federalism, but both in fact trample federalism.

The Defense of Marriage Act’s definition of “marriage” does not implicate any genuine interests of federalism. On the contrary, the definition of marriage for purposes of provisions of federal law is inherently a federal matter. (The First Circuit acknowledges that DOMA does not violate the Tenth Amendment or the Spending Clause (p. 20), and the Second Circuit similarly recognizes (p. 41) that DOMA doesn’t affect each state’s ability to determine whether same-sex couples can marry under state law.)

Properly understood, federalism leaves state matters to the states and national matters to the national government. The only genuine interest of federalism at stake in these cases is the ability of Congress to determine what marriage is for purposes of provisions of federal law.

The fact that the federal government for a long period of time—after Congress acted to ban polygamy in the 19th century and before it encountered the same-sex marriage threat—often found it convenient and unobjectionable to incorporate state definitions of marriage into federal law can’t possibly mean that constitutional considerations of federalism render DOMA suspect. As I explain more fully here, even the opponents of DOMA implicitly recognize that it is entirely reasonable for the federal government to use its own uniform definition of the essential components of marriage as the basis for distributing federal marital benefits (while choosing to accept state variants on incidental features).

3. One minor point: Carpenter states: “Eight federal courts have recently ruled that [DOMA] is unconstitutional; none have upheld it.” If Carpenter intends the adverb “recently” to carry over to the second clause, then his statement is correct. But as the House of Representatives’ certiorari petition in the First Circuit case spells out (on pp. 9-10), in an earlier wave of litigation, five or so federal courts rejected the constitutional challenge to DOMA.

The Second Circuit and Same-Sex Marriage

• October 22, 2012 • 5:04 pm

In 2007, after 40 years together, New York residents Edith Windsor and Thea Spyer were married in Canada. Two years later, Spyer died, leaving her estate to Windsor. But Windsor was denied the spousal deduction for federal estate taxes because the Defense of Marriage Act prohibits federal recognition of same-sex marriages. On top of her grief, and the prospect of living her remaining years alone, the 83-year-old Windsor now faced a federal tax bill of $363,053 in inheritance taxes that married heterosexual couples do not have to pay. She brought an Equal Protection claim in the Second Circuit, which struck down the Act last week in Windsor v. United States. A cert petition is already pending in the Supreme Court.

In a flood of other cases, same-sex spouses have presented similar lawsuits involving everything from the denial of Medicaid benefits to burial beside a spouse in a veterans’ cemetery. The Defense of Marriage Act denies more than a thousand rights and benefits in federal law and excludes an estimated 100,000 married same-sex couples in the United States. The number is growing as more states recognize marriages between same-sex couples.

Eight federal courts have recently ruled that the Act is unconstitutional; none have upheld it. In the two circuits striking down the Act, the First and Second, the opinions were written by Republican-appointed judges. Second Circuit Chief Judge Dennis Jacobs, in particular, is well-regarded among judicial conservatives. The cases challenging the Act thus come to the Supreme Court with an undeniable momentum that spans the spectrum of judicial philosophies. That doesn’t mean that the Court will agree with the lower federal courts, but it does mean that these decisions will be taken seriously in way that a decision from, say, the Ninth Circuit alone might not be.

The two appellate courts offer the Supreme Court distinct routes to holding the Defense of Marriage Act unconstitutional.

The First Circuit, in Massachusetts v. U.S. Dep’t of HHS (2012), suggested the more novel but narrower path of the two. The court held the Act unconstitutional under the Equal Protection Clause because it trenches on the interests of a historically despised minority in a matter of traditional state regulation, the definition of marriage. This almost unprecedented federal regulation aimed solely at married gay couples, the court explained, justified somewhat greater scrutiny than ordinary rational-basis review. Applying that “rational-basis plus or intermediate scrutiny minus,” as Paul Clement memorably described it in oral argument in Windsor, the First Circuit held that the Act was not adequately tailored to serve the asserted federal interests in uniformity and “responsible procreation.” Under this ruling, the federal definition is unconstitutional but a state definition of marriage excluding gay couples would withstand ordinary rational-basis review.

The Second Circuit’s opinion in Windsor trod a more analytically familiar but potentially more far-reaching path. The court held that discrimination based on sexual orientation itself warrants intermediate scrutiny. To reach that conclusion, it determined that gays and lesbians have suffered a long history of discrimination, that sexual orientation is unrelated to individual merit, that homosexuality is a “discernable characteristic [defining] a discrete minority,” and that gays lack the level of political power that would warrant leaving their legal protection entirely in the hands of legislative and electoral majorities. The dissent, written by a Clinton appointee, barely engaged this analysis except to say that heightened scrutiny for sexual-orientation classifications had been rejected by eleven other circuit courts.

The Second Circuit’s mode of analysis, examining what level of scrutiny should apply to classifications based on sexual orientation, is the more conventional of the two. Judge Jacobs makes a strong case for heightened scrutiny and does so in a more thorough and substantive way than the previous eleven circuit courts considering it. Still, the opinion swims against a strong current of precedent that may sweep it away in the Supreme Court.

If the Supreme Court does accept the Second Circuit’s heightened-scrutiny approach, moreover, it would be hard to see why state laws restricting marriage to one man and one woman could survive. Laws excluding gay couples from marriage would have to be substantially related to an important governmental interest, a test that would be difficult to satisfy given how loosely related the exclusion of gay couples from marriage is to promoting things like “responsible procreation” among heterosexual couples. That potentially sets up a head-on challenge to the laws of 44 states that do not recognize same-sex marriages. Indeed, one such challenge, to California’s Proposition 8 is already at the cert stage before the Court (although Perry raises the somewhat different question whether a state can withdraw recognition of same-sex marriages once it grants that recognition).

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

West Virginia Congressional Districts and Population Equality

• October 2, 2012 • 10:49 am

Last Tuesday the Supreme Court issued a short, per curiam opinion in Tennant v. Jefferson County, which rejected a challenge to West Virginia’s recently redrawn Congressional districts.  The one-person-one-vote doctrine requires that legislative districts be close to the same size (so that each person’s vote is approximately the same share of the total), and there was a 0.79% difference between the smallest and largest district in West Virginia.  The Court concluded that under the circumstances, however, that difference was permissible.

On its own, that conclusion may seem unremarkable.  Sometimes it may prove impossible to reach perfect population equality.  But the Court’s reasoning suggests that something bigger may be afoot.  In West Virginia, it was possible to reach nearly-perfect population equality.  The state legislature considered and rejected a so-called “perfect plan” under which the districts would differ in size only by a single person.  In upholding the imperfect plan that West Virginia actually adopted, the Court held that it is okay to deviate from population equality not just where perfection is impossible to reach.  Rather, states can reject a more equal plan on normative grounds.

In particular, the Court concluded that it was legitimate to deviate from equal-sized districts, among other reasons, in order to ensure that districts lines could track county lines.  That’s notable because one of the potential problems with the one-person-one-vote rule is that it enables (or even encourages) gerrymandering.  State law often requires districts to follow county lines, which makes it harder to manipulate the exact boundaries of a district for political reasons.  But since county populations will almost never generate perfectly-equal districts, a perfect equality rule allows (and requires) redistricting states to ignore their own anti-gerrymandering rules.  By holding that perfect equality can be subordinated to the county-line principle, the Court creates more room for state anti-gerrymandering rules.

This point is driven home by another part of the opinion, which rejected the claim that technological advances (like the use of computers in redistricting) made the range of acceptable variation smaller.  The reason increased technology doesn’t shrink the range of acceptable variation is that the Court cares about why the state plan has the variations, not just whether they can be avoided.

To be sure, it is too soon to tell whether this is the start of a bigger change to the one-person-one-vote principle, or just a minor tweak in a fact-specific situation.  A previous decision, Karcher v. Daggett, had suggested that variations could sometimes be justified, but it was vague about when and how much (and rejected them in that case).  Two big questions going forward will be how big of a variance the Court is willing to permit in preserving values likes county lines, and whether Tennant is part of a bigger trend of federalism in federal election law.  Stay tuned.

FedSoc Teleforum 9/6 on Bickel’s “The Least Dangerous Branch”: Still Relevant 50 Years Later?

• September 5, 2012 • 11:31 am

In a recent SCOTUSblog symposium marking the 50th anniversary of the publication of Alexander Bickel’s The Least Dangerous Branch, Roger Pilon argued that the twin themes that emerged from that important volume — the “countermajoritarian difficulty” and the “passive virtues” — were especially influential in shaping the constitutional thought of Bickel’s colleague, Robert Bork. Whatever their differences, Bork subsequently became seminal figure in shaping the modern conservative legal movement, especially through the Federalist Society. But those ideas led also to a response within that movement from libertarians concerned as much about the ”majoritarian difficulty,” a response that  has led to a spirited debate on the Right over the nation’s “First Principles.”

Contributing also to the SCOTUSblog symposium, Adam J. White noted the Madisonian and Burkean elements in Bickel’s writings. Emphasizing Bickel’s “principled prudence,” White cautioned “not to press the Court to recognize rights divorced from principles rooted in national experience.”

FedSoc’s Federalism & Separation of Powers Practice Group invites you to join Pilon and White in a teleforum on the subject “The Least Dangerous Branch: Still Relevant, 50 Years Later?”  Here are the details:

Start : Thursday, September 6, 2012 2:00 PM

End   : Thursday, September 6, 2012 3:00 PM


Agenda: The call begins at 2:00 p.m. Eastern Time.

Registration details: Teleforum calls are open only dues paying members of the Federalist Society. To become a member, sign up here.

The Case for “Constitutional Backdrops”

• August 29, 2012 • 4:12 pm

In the last few decades, the Supreme Court has increasingly relied on legal theories–especially originalism–that put heavy emphasis on the Constitution’s text. One common criticism of these theories, though, is that the text leaves too many important questions unanswered. Can the Houses of Congress punish citizens for contempt? Can the President remove executive officers? Can federal courts give stare decisis effect to past decisions? Can ordinary citizens sue sovereign states? These questions weren’t answered in the text, at least not clearly. And while we sometimes find answers in Founding-era legal history, it’s not clear why these answers should still control today, if the Founders couldn’t be bothered to write them down and enact them as law.

In a new article forthcoming in the George Washington Law Review, I argue that the answers to these questions may lie outside the text — and that originalists, as well as others, should be OK with that. The Constitution wasn’t written on a blank slate, but left most of American law in place, and sometimes protected some of that law against future change. For instance, the rules that govern state borders, such as how the borders move when a river changes course, surely aren’t in the Constitution. But Congress likely can’t change them, at least with respect to existing borders, without the consent of the states involved under Article IV. Similarly, there might be law on other topics that doesn’t come from the Constitution, but that the Constitution doesn’t let us change. From my paper’s abstract:

This Article describes a category of legal rules that weren’t adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional “backdrops”: rules of law that aren’t derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference; they may have been insulated from change by the usual political actors; or they may have been preserved as “defeaters” for the Constitution’s defeasible language. In each case, the text requires that the rules be given force, even though it doesn’t supply their content.

Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes.

I had the honor of presenting the paper at the last Originalism Works-in-Progress Conference in San Diego; the next conference will be held in February.

Tom Goldstein on the Evolution of SCOTUSblog

• August 20, 2012 • 10:11 am

GoverningWorks features a fascinating interview of Tom Goldstein, the founder of SCOTUSblog. Here’s an excerpt from the transcript:

[W]e can track all of our in-bound readers, unless someone takes the highly unusual step of hiding where they’re coming from.

And the Supreme Court doesn’t hide itself. It has the IP [Internet Protocol] address “Supreme Court of the United States” is the domain that’s associated with the IP address. And we were able to see hundreds and hundreds to thousands of hits coming in from them on any given day.

And we know from our former students who are clerks, from just casual conversations with the Justices, that the Court is very conscious of the blog and a lot of people inside the building read the blog. That doesn’t mean they think particularly highly of the blog or anything like that. Certainly, I would never say that the blog has influenced anything the Court has done.

But, you know, if you’re an important institution and there’s one Web site devoted to following everything that you do, it’s not surprising that you’re going to read it.

And, I was concerned that the Justices and their law clerks would come to believe that we were writing effectively to them. So that, if we were….So, back in the day, for example, if we filed a Cert. Petition, then we would write on the blog, ‘We filed this really interesting Cert. Petition. It’s about this, that or that question. And, here’s the reason the Court might take the case.’ That was never intended for the Court as an audience. But, the Court doesn’t know that and could mis-understand it. And so it became very important to cut all that out because, if the Justices don’t trust you, then you’re not being an effective advocate.

The other thing that happens is that because other people realize, or at least perceive, that the blog has an audience inside the building, people will try and use the blog to affect the Justices. So, constantly, we’re getting approached by people asking us to write about their cases, highlight their cases, cover cases in a particular way, as part of their agenda for influencing the Justices. And so, we’re incredibly resistant to that both because we think it’s improper and because we are just…we don’t want the Court to look at us in that way.

A kind of prototypical illustration is, there was a case last Term on the merits a the Court, where there parties were trying to get…one of the parties was trying to get a set of documents in front of the Court and was trying to lodge the documents in the Court but was unsuccessful in doing that. And so they couldn’t get them in front of the Justices and their law clerks in the ordinary process. And we got heavily lobbied to publish a story about the documents. And, they were very interesting. And so it presented a really genuine journalistic dilemma about what to do because it was apparent to me that a real part of their agenda was not because they wanted the documents published for the sake of publishing them and their interest [but] because they wanted a back door into the Court. And resolved that by not publishing them. But, it was a puzzle to work through.

More on EPA’s Coercion of the States

• August 8, 2012 • 9:13 am

An astute reader argues, contrary to my earlier position, that coercion of the states is always unconstitutional because it always amounts to an indirect “commandeering” of the state’s legislative or executive arm.  With respect to Texas’s lawsuit against EPA challenging the agency’s command that the states incorporate greenhouse gas provisions into their state implementation plans, he argues a clear-cut case of commandeering.  The states are told to change how they administer the Clean Air Act’s permitting program, and are threatened with a revocation of their entire permitting authority (as opposed to some smaller portion thereof) if they don’t act.  A revocation of their permitting authority is no doubt coercive.  And that coercive result EPA uses as leverage to get the states to amend their plans.

I fully agree with the reader that if EPA has no authority to require the states to amend their implementation plans, or to amend them on a very expedited basis, then EPA’s actions are unconstitutionally coercive.  But of course this example doesn’t contradict my earlier position that coercion per se is not problematic, and only becomes so if the coercion is being used to achieve an end (amendment of the implementation plans) that EPA couldn’t achieve directly.

Yet I believe that the reader would go further to argue that even if EPA can under the statute require the states to amend their implementation plans to include greenhouse gases, and to do so on an expedited basis, the coercion and commandeering principles would forbid it because EPA is essentially forcing the states to act as federal surrogates.  With the caveat that South Dakota and NFIB were Spending Clause, not Commerce Clause, cases, I see the reader’s point.  Even if one assumes that EPA could legally and constitutionally impose a construction moratorium regardless of Texas’s implementation plan decision, the harm to federalism principles by conditioning that moratorium on Texas’s decision to administer the permitting program would still be considerable.  Texas cannot tolerate a construction moratorium, but if it accedes to EPA’s demands, then the electorate may seek to hold Texas responsible for a policy decision that really is from EPA.

NFIB v. Sebelius, Coercion, and the Unconstitutional Conditions Doctrine

• August 6, 2012 • 8:38 am

In NFIB v. Sebelius, the Supreme Court held that the Affordable Care Act would be unconstitutional if interpreted to condition the entirety of a state’s Medicaid funding on its decision whether to accept the Act’s expansion of Medicaid services.  The Court, through Chief Justice Roberts, explained that such a condition would impermissibly coerce the states and therefore exceed Congress’s power to spend the federal fisc on behalf of the general welfare.  In so holding, the Court distinguished its leading precedent in this area, South Dakota v. Dole, on the grounds that there the only funding at issue was a small percentage of federal highway funds, whereas here a substantial portion of the states’ budgets would be threatened.  The Court managed to uphold the Act by interpreting it as conditioning the receipt of new funds only on acquiescence to the Medicaid expansion.

Shortly after NFIB was decided, commentators noted that its coercion analysis might endanger other federal programs, such as the Clean Air Act.  Recently, attorneys for the State of Texas filed a notice of supplemental authority in a consolidated action in the D.C. Circuit Court of Appeals relying on NFIB to support its case.  The lawsuit challenges the Environmental Protection Agency’s decision to require the states to incorporate greenhouse gas limitations in their “state implementation plans.”  Under the Clean Air Act, a permit is required for the construction of, or significant improvements to, “major” emitting facilities, i.e., projects that will emit large amounts of air pollutants regulated under the Act.  Generally, these permits are issued by states pursuant to a state implementation plan that EPA has previously approved.  The trouble here is that EPA has required the states to update their plans to include permitting provisions for the reduction of greenhouse gas emissions, and several states, supported by industry, have balked.  Now, lawyers for Texas are arguing that NFIB’s coercion discussion supports Texas’s position that EPA cannot invalidate the state’s implementation plan and thereby preclude it from issuing permits.

I am not a Clean Air Act expert, but I see a significant problem with Texas’s use of NFIB(more…)