Sundry Thoughts on NFIB v. Sebelius, the Day After…

It's a Tax!

Okay. So by this point, you’ve all read the ACA/Obamacare opinion, which will from here on out be known as NFIB v. Sebelius. And if you’re reading this blog post, you’ve probably been reading other analyses around the interwebs. My favorite thus far (and my recommendations) are: Mike Dorf here (and I’m sure he’ll have more to say), the Slate discussion series, which includes Judge Richard Posner, Walter Dellinger, and Dahlia Lithwick (among others), and all of the SCOTUSblog coverage, including this helpful “Plain English” explanation of the decision. (The nice thing about SCOTUSblog, is that even when they write non-technically, they don’t get sloppy with the facts.)

Dewey Defeats Truman!

I am not going to make any effort to mold my thoughts into any sort of cohesive narrative. I read the opinions. I read a lot of the coverage. I am going to make this post a clearinghouse for all of my initial thoughts and observations on the off chance that you might be interested. And because I don’t want to waste you’re time, I’ll try to focus on thoughts/observations that have not already flooded the twitters and interwebs. Also, I’ve numbered them and sorted them by subject, so you can just skip the boring stuff. (Please, no jokes about how it’s all boring stuff.) Continue reading

The Roberts Switch: Revisited! Updated!

After my last post about the potential Roberts switch, I received some comments from readers via, well, the blog comments (imagine that!) and email. A few additional observations based on those comments (and see update below! (6/29 at 10:00am):

  • The joint dissent totally ignores the Chief’s opinion. It’s really quite amazing More than anything else, that is the best evidence I’ve heard that the Chief’s opinion was new/late. Perhaps the joint dissent did not have time to respond?
  • The joint dissent is written, generally, in the style of a “majority” opinion. It is more constructive (it builds up its own affirmative argument/decision) and less destructive (it attacks Justice Ginsburg’s “dissent” as a sort of counter-punch, rather than its main thrust).
  • The severability analysis at the end of the joint dissent reads more like something that was necessary to the outcome of the case, not just an academic exercise that the joint dissenters went through in the service of some sort of desire for completeness. How many dissents go through a severability analysis like that? Perhaps it was written as a majority, but once the majority was lost, there was no need to cut it.

Those are some good observations. (Thanks comments!) And based on those observations, my needle has definitely moved a bit more toward “it was the majority before a switch!”

But there are still some problems. Let’s assume that things started out after conference with Roberts in a 5-4 majority with Kennedy, Scalia, Alito, and Thomas, as posited by the switch hypothetical. In that scenario, Ginsburg is assigned to pen the dissent. But who got assigned the majority decision? How does that explain the “joint dissent” strangeness? In any event, under this theory, at the last minute, Roberts changes his mind! And his opinion is so late that there’s no time for the joint dissent to change the opinion.

Well, if that happened, then how did Justice Ginsburg have time to adjust her dissent to respond to the Chief Justice’s opinion? If she had time, surely the joint dissenters should have had time as well — at least enough time to make the cosmetic changes that would have been required, or to respond to the Chief’s tax argument. And why would the joint dissenters not join some/all of the Chief’s commerce ruling? Why did the Chief feel the need to draft his own Commerce Clause “essay” instead of just joining the joint dissenters’ opinion on that issue, when the holdings were remarkably similar?

The joint dissent does read like a majority. And the failure to address the Chief’s opinion is indeed extremely strange. But there are other explanations besides a last-minute defection. What about a scenario where the Chief was unwilling to commit to the joint dissenters at the conference, leaving the conference as sort of a free agent or a loner from the outset. The joint dissenters then authored a “draft majority” and circulated it in the hopes of gaining the Chief’s vote. It failed to do so. But from the conference, the Chief knew that he could get the liberals’ vote on the tax issue. So he informed the rest of his colleagues (at some point, perhaps immediately after the conference) that he was going to draft his own opinion for the Court, telling them a general outline of his theory. Justice Ginsburg, who knew that she would not have 5 votes for a Commerce Clause ruling, could go ahead and draft (or keep) much of her “dissent” on the commerce point. And she and the others were free to join the Chief on the tax issue without adding their own discussion. 

Meanwhile, the joint dissenters already had a full opinion on the commerce issue, so there was no need join the Chief in that portion of the opinion. And perhaps they thought the tax issue was not worth spilling too much ink.

But anyway, if Justice Ginsburg had time to digest and respond to the Chief’s opinion, I just can’t believe that the joint dissenters didn’t have the time. I have no doubt there is a great back-story here, but I don’t necessarily think that the story needs to be a “last minute” defection, or some sort of spite-fueled dissent from the conservative wing. I am, however, really looking forward to that law clerk’s tell-all book!

Update (6/29 at 10:00am):

David Frum published an email from a reader that is more along the lines of what I’m thinking:

I imagine the dissenters either had Roberts’s vote or that Roberts left the post argument conference without commiting to a side and saying something to the effect of “let me see how it writes.” He certainly didn’t trust the dissenters, as he clearly instructed his law clerks to begin working on an alternative majority opinion (the final product was too polished and too long to have been written at the last minute). And he waited to see what was written.

I like that. As far as I’m concerned, any theory of a Roberts changed vote (and the timing of such a change) needs to explain the following:

  1. How did Roberts have time to write such a long opinion? (Not a last-minute change!)
  2. Why would Ginsburg have time (and reason) to respond to Roberts’s opinion, but the joint dissenters would not?
  3. Why would the joint dissent be a joint dissent, instead of a single-authored dissent?
  4. Why would the joint dissenters not have joined Roberts’s discussion of the Commerce Clause holding? (Or why would he not join theirs?)

The “last minute switch!” or “they had him and lost him!” theories don’t really have answers to all of those questions.

The Roberts Last Minute Switch? Not So Fast…

Lawrence Solum (Legal Theory Blog), David Bernstein (Volokh Conspiracy), and Paul Campos (Salon) all speculate that perhaps Chief Justice Roberts “suddenly changed his vote” at the “very last possible moment” (to quote Professor Campos). (Professor Solum merely speculates that the Chief’s vote changed at some point after the initial conference.)

(See my update to this post here)

Of course, I have no idea what happened in the conference, and the four-Justice “joint dissent” from Scalia, Thomas, Kennedy, and Alito is indeed strange. When was the last time we had a collective dissent with no single author like that? But I think folks might be jumping the gun a bit to assume the explanation behind the joint-dissent is a switch by the Chief. Continue reading

ACA Litigation Update: Court Refuses to Force McKenna to File Severability Brief with Supreme Court

A while back, I wrote about a lawsuit filed against Attorney General Rob McKenna filed by a plaintiff group of ninety women, regarding McKenna’s statements and litigation actions in connection with the ACA/Obamacare case. Well, the plaintiffs moved for preliminary relief, and today the Superior Court (Judge Sharon S. Armstrong) denied the plaintiffs’ motion (PDF here, via the Olympian). For media coverage of the decision, check out the Seattle Times, the Olympian, or the Capitol Record.

Two thoughts on this: (1) what to make of the Court’s decision, and (2) where do we go from here? Continue reading

McKenna vs. McKenna . . . vs. A Plaintiff Group of Ninety Women

Well, I suppose it was bound to happen: About a month ago, Attorney General Rob McKenna was tagged as “McKenna vs. McKenna” when he publicly claimed to be in favor of the bulk of the Affordable Care Act while at the same time signing his name to brief arguing that the entire law should be invalidated. (I previously wrote some about the McKenna vs. McKenna phenomenon here and here.) Now, McKenna’s contradictory statements have gotten him more than bad press; they’ve gotten him on the wrong side of a lawsuit.

The Lawsuit

Yesterday morning, a group of Ninety women filed a complaint against McKenna in King County Superior Court claiming that McKenna breached various ethical duties and Rules of Professional Conduct. If you’re interested, you should read the entire complaint here. But in short, the Plaintiffs make two general allegations. First, they claim that McKenna has an ethical duty to represent his clients’ (the people of Washington) interests. McKenna has conceded that the bulk of the ACA is in Washington’s interest — he’s publicly stated that he is for most of the ACA’s provisions. However, by signing his name to a brief arguing for the invalidation of the entire ACA (on severability grounds) he has taken an action directly against the interests of Washington, even based on McKenna’s own articulation of those interests. McKenna has explained his actions, in part, by referring to the group of states’ “majority rules” method of decisionmaking in the ACA litigation. The Plaintiffs’ claim that it is unethical for McKenna to subvert the interests of Washington to the interests of the majority vote of other states.

Second, the Plaintiffs claim that McKenna has an ethical duty to keep his clients (again, the people of Washington!) reasonably and honestly informed regarding the litigation. McKenna has made the following statements about the lawsuit: that the lawsuit “does not challenge” most of the ACA or that the lawsuit “will not” affect the bill as a whole. The Plaintiffs claim these statements are misleading and therefore violate McKenna’s ethical duties. Indeed, the lawsuit does seek to strike down the entire ACA and may well do so. Continue reading

What Grade Would You Give the Attorney General’s Homework?

Yesterday, the Fifth Circuit gave the Attorney General a homework assignment:

[A] letter stating . . . the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least 3 pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements.

I added the emphasis above to make clear that the Fifth Circuit really really really wanted the letter to specifically reference the President’s statement.  I draw that conclusion from the fact that the Judge referred to the President’s statements three times and used the word “specific” three times.

Here is the Attorney General’s homework assignment, signed by Eric Holder himself.  What grade would you give it?

The letter is certainly a nice explanation of judicial review along with all sorts of Supreme Court precedent making clear that the Court does not and should not just go striking things down willy nilly.  But what about the “specific reference to the President’s statements”?  Where is that?

Well, at the end of the first paragraph, the letter notes: “The Court indicated that its inquiry was prompted by recent statements of the President.”  And then after two pages of legal analysis, the letter closes with a single sentence paragraph: “The President’s remarks were fully consistent with the principles described herein.”

Is that a sufficiently “specific reference” to the President’s statements? Based on my reading of the Judge’s request yesterday, I doubt this is what he was looking for. But I also doubt that he (or anyone else on the Panel) is going to make much of a stink over this.  I imagine the letter will put the issue to bed.

Also, on the three-page requirement:  The letter, including the signature line, makes it about half-way down the third page.  Teachers, what do you say?  Is that three pages?  Also, I wonder if every letter from the Office of the Attorney General includes 1.5-inch headers and footers (instead of 1-inch) and an eight-line address block, which is located four lines below the date on the first page.  Come on OAG, we’re wise to those tricks!

Federal Court of Appeals Judge Orders DOJ to Attempt to Embarrass President Obama

Over at the Volokh Conspiracy, Orin Kerr has a post up about today’s oral argument in the Fifth Circuit Court of Appeals on a challenge to the ACA. In short, at the start of the DOJ attorney’s argument, one of the Judges on the panel asked her whether the DOJ believes that the federal courts have the power to invalidate an unconstitutional law.  After the lawyer responded “yes” and “of course,” the Judge made clear that he was referring to these comments from President Obama yesterday:

Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint — that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example. And I’m pretty confident that this Court will recognize that and not take that step.

With those comments as the background, the Court of Appeals Judge and the DOJ attorney engaged in the following colloquy:

Judge: Let me ask you just something a little bit more basic. Does the Department of Justice recognize that federal courts have the authority in appropriate circumstances to strike federal statutes because of one or more constitutional infirmities?

Lawyer: Yes Your Honor, I, of course there would need to be a severability analysis. But yes.

J: I am referring to statements by the President in the past few days to the effect (and I’m sure you’ve heard about them) that it is somehow inappropriate for what he termed ‘unelected judges’ to strike acts of Congress that have enjoyed (and he is referring of course to Obamacare) to what he termed a broad consensus and majorities in both houses of Congress. That has troubled a number of people who have read it as somehow a challenge to the federal courts or to their authority or to the appropriateness of the concept of judicial review and that is not a small matter so I want to be sure that you are telling us that the Attorney General and the Department of Justice do recognize the authority of the federal courts (through unelected judges) to strike acts of Congress or portions thereof in appropriate cases.

L: Marbury vs. Madison is the law, your honor. But it would not make sense in this circumstance to strike down this statute because there is no…

J: Well, alright, well I would like to have from you on noon on Thursday, that’s about 48 hours from now, a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the President stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least 3 pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the President’s statements and to the, again, position of the Attorney General and the Department of Justice.

L: Okay and that’s our position regarding judicial review and the authority of the Court…

J: Judicial review as it relates to the specific statements of the President in regard to Obamacare and to the authority of the federal courts to review that legislation.

L: Yes Your Honor.

(I have not seen an official transcript of the argument, which just happened today, but the audio is available here.  I listened and transcribed the colloquy to the best of my ability, leaving out “ums” and the like.)

People are, rightly I think, somewhat shocked by this exchange.  But there’s nothing fundamentally strange or unfair about a judge asking a lawyer to clarify a position when the lawyer’s client (or the client’s spokesman) makes a public statement that seems contrary to the lawyer’s arguments in court.  If I submitted a declaration or memorandum in a case representing my client’s position as “X,” and then the judge opens the newspaper to see a quote from my client stating “Not X,” then I’d better be ready for that judge to ask me what is going on with “X”; I’ll need to explain myself and my client.

But what the Court of Appeals did here goes far beyond that.  The Judge did ask the attorney to clarify her client’s position.  And she did so.  She clearly stated, on the record, in a recorded proceeding, that the United States believes in judicial review.

The Judge’s request for a letter goes beyond clarification.  He confirmed repeatedly that the letter must specifically and in detail refer to the President’s remarks.  When the attorney deftly attempted to make the letter about the government’s view more generally, the Judge cut her off and once again demanded that the letter make specific reference to the President’s comments.

In other words, what the Judge seems to want is a letter from the DOJ quoting the President’s statement and then explaining, on the record, why the DOJ thinks the President was wrong.  He wants a public document that will serve no purpose other than to (perhaps) embarrass the President.  That seems to me to be a bit much.

However, the President may have made the DOJ’s job easier today, when he clarified and limited his remarks.  Perhaps the DOJ lawyers can rely on today’s comments in their letter.

More McKenna vs. McKenna vs. Ziff Blog

Since my initial post on McKenna vs. McKenna, I have read this piece by Brendan Williams in The Stand, in which Williams makes some additional inconsistency/hypocrisy-based arguments against McKenna.  And as a bonus, The Stand includes this cool photo:McKenna v. McKenna

Also, I read through all of McKenna’s ACA-related press releases and statements on his website, which you can find here (just click back for previous years).  I think these statements are entirely consistent with a politician who (a) wants the mandate struck down, (b) wants some “good” parts of the ACA to survive, and (c) wants to avoid much/any public acknowledgement that in seeking goals (a) and (b), he’s allied himself and our state with folks who want to toss the whole thing out.  And that (c) problem may indeed be a problem for him.

Continue reading

McKenna vs. McKenna vs. The Seattle Times vs. The Stranger vs. Ziff Blog

The local press recently has been taking Attorney General Rob McKenna to task for his involvement in this week’s U.S. Supreme Court case dealing with the Affordable Care Act (“ACA”).  The Stranger’s Eli Sanders had this piece on Monday, which was a follow-up on a similar piece he wrote back in January.  And Jim Brunner of The Seattle Times warned over the weekend that McKenna’s involvement could cost him politically with Washington voters.

As you probably know, McKenna signed Washington on with the State Petitioners – the group of states that brought the case against the ACA.  The State Petitioners claim that the ACA’s so-called individual mandate is unconstitutional.  McKenna has said publicly that that is also his view—that the individual mandate is unconstitutional.  McKenna has also said, however, that by attacking the individual mandate, his goal is to get rid of only the individual mandate.  He wants to keep the other parts of the ACA that he likes, such as “[p]rotections for children with pre-existing conditions, young adults wishing to stay on their parents’ plans, and for those with little or no income.”

The curious thing (at least to me) about the recent critical press is that the articles do not attack McKenna on the substance of his views.  That is, the articles do not argue that McKenna should support the individual mandate or that he should (either as a matter of policy or a matter of proper application of the law) want the ACA as a whole to rise or fall with the individual mandate.  Instead, the articles criticize McKenna for the inconsistency between his stated views and the views of the State Petitioners as a group.  The State Petitioners, according to their filings in the Supreme Court, agree with McKenna that the individual mandate is unconstitutional, but they disagree with him on the question of whether the individual mandate is severable from the rest of the ACA.  The State Petitioners have argued (and continue to argue) that if the Supreme Court strikes down the individual mandate, then the Court should sweep away the rest of the ACA with it.

Sanders argues, based on this inconsistency, that McKenna is lying to Washington voters about his views.  He writes that McKenna’s “contention that he’s only going after the mandate—just the mandate!—[is] simply not credible.”  And that: “McKenna’s telling the Supreme Court that the whole law needs to come down, mandate and spokes and all, while telling Washingtonians that he thinks all of the law’s great benefits can survive the striking down of the mandate.”  Brunner’s criticism seems to be a bit more subtle: that by asserting one position personally but lending his name to the opposite position in court filings, McKenna is taking a political risk that may cost him with Washington voters who won’t understand (or care about) his legal parsing.

I carry no brief for Rob McKenna.  On the merits of the ACA case I think the individual mandate should be upheld.  I would certainly criticize McKenna for his view to the contrary as well as his decision to sign Washington onto a lawsuit arguing that the individual mandate is unconstitutional.  But I don’t think the recent anti-McKenna press-bashing has been entirely fair.  Sure, he may be lying to Washington voters.  And maybe his position is a huge political blunder.  I have no idea.  But I don’t think his actions with respect to the case thus far are necessarily the actions of a liar or someone who is flopping through a political mine field.

There are lots of good, honest, rational reasons for McKenna to be doing what he’s doing, even if you assume that he’s telling the truth when he says he is anti-mandate but pro-severability:

  1. By joining the State Petitioners, and letting other states take the lead, McKenna is saving Washington money.  One of the costs of joining a group of plaintiffs is that you cede some control over the litigation.  But one of the benefits is that you disburse the burden of legal fees, which in a case like this can be quite high.  As Brunner reports:  “The case is being directed by the Florida Attorney General’s Office, and Washington state is not paying any of the legal costs.”
  2. By joining a party in the case—and the State Petitioners are a party—McKenna is more able to influence the course of the litigation.  Sure, McKenna was out-voted in the group on the severability question.  But at least he had a vote and was in the room.  One suspects that to the extent McKenna is involved in the case at all, he’s now assisting on the anti-mandate part of the case while staying out of the way on the severability part.
  3. There is nothing strange about one individual in a group representation disagreeing with the others in the group about one aspect of the litigation.  Individual members of multiple-party groups disagree and compromise all the time.  Some disagreements are bigger than others, but when you sign on to a multiple-party group, you are agreeing to compromise on certain things where you can.  The odd thing here is that we’re hearing about the disagreement because McKenna has made it public.  But the fact of the disagreement itself should be no surprise.
  4. He’s not wrong!  While neither of the parties in this case is taking McKenna’s view that the mandate is unconstitutional and severable, the Eleventh Circuit Court of Appeals adopted that view.  It’s a reasonable view, at least from a legal perspective.  Severing the mandate may cause problems for certain parts of the ACA, but there’s no reason it would have to affect the parts he likes: protections for children and those with little income.
  5. But why not sign on with the State Petitioners on the anti-mandate briefs but not sign on with the severability briefs?  Well, you can’t do that when you’re an actual honest-to-goodness party in the case.  A party is unified for all purposes.  The State Petitioners’ brief is the State Petitioners’ brief, and that means all the State Petitioners sign on to it.  If McKenna just wanted to be an amicus curiae (friend of the court) instead of a party, he could pick and choose different briefs to join.  But he’s a party so he doesn’t have that luxury. Sanders makes this mistake when he takes McKenna to task for signing “a high court amicus brief” for the State Petitioners.  If it were just an amicus brief McKenna could have avoided signing it.  But it wasn’t an amicus brief; it was the brief for the State Petitioners—a party, of which McKenna is a member.  So his name is on the brief.
  6. So why not just be an amicus instead of a party?  Amici are sort of useless.  They hardly matter outside the Supreme Court.  Courts of Appeals rarely accept/consider them and District Courts almost never do.  By being a party, McKenna has been able to have a voice in this litigation from the inside and from the very beginning at the trial court.  Also, if he were an amicus, he would have to file his own brief on Washington’s dime.  That’s what Governor Gregoire did.  On the merits, I agree with the Governor.  But I don’t know if we needed to hire a team of Seattle lawyers at taxpayer expense to submit a brief making that point.  Again, I think it’s good for Washington taxpayers that McKenna’s limited involvement means we are saving money and not wasting the time of government employees.
  7. So why not just drop out?  Well, I don’t think that would make much/any practical difference.  McKenna is one member of a group of petitioners.  Maybe his participation in strategy sessions has strengthened the anti-mandate arguments (which he likes) and narrowed or limited the severability arguments (which he doesn’t like).  But really, he is just a name on the line, and his participation is largely symbolic.  By publicly stating that, unlike the State Petitioners, he’s pro-severability, he’s essentially muted whatever symbolic power his name has on that anti-severability brief.

At base, I think the critics are attacking McKenna for an apparent meekness.  If he really thinks the individual mandate is unconstitutional but severable, then he should be out there making that case on his own, instead of signing on with a group of petitioners who only partially agree with him.  But let’s assume McKenna actually did that—hired some Seattle lawyers, got more involved in the case, and filed briefs setting forth his exact views.  I doubt that Sanders and Brunner would stand up and applaud.  I certainly wouldn’t!  If we assume that McKenna’s stated views are actually his views (and I have no reason to suspect otherwise), then I think what he’s done thus far is about the best course of conduct you could hope for if you are a Washington taxpayer who thinks the individual mandate is constitutional and the ACA should be upheld in full.