Monday, January 7, 2018

Will Foster is a high school junior from Chicago, Illinois. Today he’s guest blogging for High School SCOTUS about the Texas court ruling that struck down the Affordable Care Act’s individual mandate. Feel free to check out his SSRN page, where he has also written an article on Janus v. AFSCME. 

The Phantom Mandate: Sebelius’ Tax Holding & The Texas Ruling on Obamacare

By Will Foster

On December 14, 2018, a federal district judge in Texas ruled that a 2017 amendment to the Affordable Care Act had rendered the law’s “individual mandate” unconstitutional. The judge, Reed O’Connor, also declared the remainder of the law inseverable from the challenged provision and thus held the entire statute invalid. Much of the controversy around the decision has focused on its severability ruling, which closely tracks views expressed by the four dissenting Supreme Court justices in NFIB v. Sebelius (2012), a landmark case that upheld the mandate.

However, I am not convinced that Judge O’Connor should have reached the severability question. In my view, his Texas v. U.S. opinion misreads the majority opinion in Sebelius and therefore reaches an incorrect conclusion about the validity of the individual mandate. This provision (26 U.S.C. §5000A(a)) states that non-exempted Americans “shall” procure “minimum essential” health insurance coverage. If they fail to do so, §5000A(b) says they must pay a “penalty,” denominated a “shared responsibility payment.”

The individual mandate reads most naturally (some would argue exclusively) as a requirement to obtain insurance; that’s why it’s usually referred to as a “mandate.” In Sebelius, however, Chief Justice John Roberts and his four conservative colleagues found that such a requirement was not authorized by the Commerce Clause or the Necessary and Proper Clause. In order to avoid striking down the provision, Roberts employed a “saving construction” that interpreted §5000A as merely imposing a tax authorized by Congress’ power to lay and collect taxes. He was joined by the court’s four liberal members to create a five-justice majority for that portion of his opinion — although only Roberts viewed the tax holding as requiring a “saving construction,” since the four liberals believed the Commerce and Necessary and Proper clauses should have been sufficient to uphold the mandate as a true requirement.

It is easy to misunderstand what exactly the five-justice majority ruled in Sebelius regarding the individual mandate. It did not rule that a requirement to obtain insurance was authorized by the taxing power. Instead, it ruled that §5000A(a)’s “individual mandate” did not technically mandate anything at all, but rather merely stated the condition that would trigger the “penalty” in §5000A(b), which the court characterized as a tax. The court then found that §5000A, when interpreted as offering a choice between two lawful options (getting insurance or paying a tax), represented a permissible exercise of the taxing power.

As the court explained, “While the individual mandate clearly aims to induce the purchase of health insurance, it need not be read to declare that failing to do so is unlawful … The Government agrees with that reading, confirming that if someone chooses to pay rather than obtain health insurance, they have fully complied with the law” (Sebelius, p. 37). Indeed, “Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes” (p. 44, n. 11). The court’s characterization of §5000A as merely imposing a tax on not having insurance was particularly notable in light of the fact that some legal scholars had tried to persuade the court to uphold the minimum coverage provision as a requirement using the taxing power. The distinction between that position and the one the court actually adopted is subtle but important. Professor Randy Barnett, a leader in the original legal challenge to Obamacare who co-authored the private challengers’ Supreme Court brief, noted the difference just days after the Supreme Court’s ruling came down.

Now, as promised, I’ll turn to the implications of Sebelius for the recent Texas district court decision. As Judge O’Connor explained, “The shared-responsibility payment, 26 U.S.C. §5000A(b), is distinct from the Individual Mandate, id. §5000A(a) … [T]he Plaintiffs challenge only the Individual Mandate, not the shared-responsibility penalty, as unconstitutional” (Texas, p. 20). In late 2017, long after Sebelius, the Tax Cuts and Jobs Act was signed into law. The statute, as relevant here, amended §5000A by reducing the shared responsibility payment to zero, effective January 1, 2019 (statute, p. 39). The language about the payment was not completely excised from the Affordable Care Act; to the contrary, the 2017 Congress essentially only replaced existing income percentages and dollar amounts with “zero percent” and “$0,” leaving the statute looking largely the same as before. But while the change was facially minor, it had major significance. In light of Sebelius’s holding that §5000A provided a choice between either getting insurance or paying a tax, the new edits meant that someone could now both fail to procure insurance and not pay any tax penalty. There was no requirement, and no tax either. In other words, §5000A was entirely toothless.

Or was it? Some alleged that the newfound lack of a tax in §5000A meant that the individual mandate, §5000A(a), could no longer be read as a mere predicate to tax consequences. Instead, these challengers asserted, it now had to be understood as a requirement (which, despite lacking any penalties for noncompliance, would seemingly still be legally binding on Americans). There was no longer any way to avoid construing the mandate in this way. Therefore, the taxing power defense employed in Sebelius was useless. And because Sebelius had made clear that a requirement to obtain insurance was unconstitutional, §5000A(a) was unconstitutional. This was the argument that Judge O’Connor used to strike down the individual mandate a few weeks ago.

Judge O’Connor’s reasoning leads to some strikingly counterintuitive results. It seems to me that if Congress had the power to impose an exaction of $695 or more for uninsured adults using the pre-amendment §5000A (as the Supreme Court held), then Congress should have the power to impose an exaction of any lesser amount — even $0. An argument to the contrary would be rather like saying, “The Constitution gives Congress the power to impose a 10-year prison sentence for x crime, but not the power to impose no prison sentence at all.” That seems like a perverse outcome.

There is another logical oddity in the challengers’ position. Under their theory, the penalty could be set extremely close to zero so long as it stayed non-zero, raising the possibility that the difference of even a single cent could invalidate a provision of the Affordable Care Act (and, if the challengers’ severability analysis controls, the entire law). If Congress set the penalty at one cent, but then changed it to zero cents, would the one-cent difference really have created unconstitutionality where none existed before? Perhaps, I suppose, but it’s certainly an interesting question to ask.

Of course, wholly apart from the merits inquiry, it’s far from clear that the plaintiffs had standing to challenge the mandate in the first place. Judge O’Connor acknowledged that the individual plaintiffs would face no practical consequences were they to stop maintaining minimum essential coverage, but nonetheless found standing because the individuals (being law-abiding citizens) felt they were bound by federal law to maintain such insurance (Texas, pp. 17-18). Therefore, plaintiffs were injured because they had been purchasing insurance they did not want in order to fulfill their legal obligations. And this injury could of course be redressed by invalidation of the individual mandate, which the plaintiffs contended was unconstitutional. There’s a problem with this reasoning, though: As a formal matter, people aren’t legally bound to follow unconstitutional laws. As the Supreme Court put it in Norton v. Shelby County (1886): “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed” (emphasis added). The court has since qualified this statement, noting that as a practical matter an unconstitutional statute might have engendered reliance interests (before being struck down) that cannot be overlooked. Nevertheless, the basic point still rings intuitively true: American citizens do not have a fundamental obligation to follow unconstitutional “laws.”

Of course, as a practical matter, unconstitutional laws may still cause injury because the government will often keep enforcing these laws until a court makes it stop. But the individual mandate is not currently being enforced: The “penalty” is now $0 and the law does not provide for any other consequences. So the plaintiffs have no standing because, assuming they are correct that the mandate is unconstitutional, they lack any sufficient injury: They are both not legally bound by the mandate and not likely to suffer any practical consequences if they disregard it. Judge O’Connor might respond that I am confusing the merits stage with the standing inquiry by already deciding that the mandate is not a requirement. But by deciding plaintiffs are not bound by the mandate I do not necessarily decide (yet) that the mandate isn’t a requirement; I merely note that, even if it is a requirement, it is unconstitutional and therefore of no force.

The traditional approach to standing, as I understand it, is to assume for the sake of argument that the plaintiffs succeed on the merits. So here we should assume that the mandate is an unconstitutional requirement (as the plaintiffs urge) and then realize that the plaintiffs have no standing because an unconstitutional requirement demands no obedience. Indeed, plaintiffs “cannot manufacture standing merely by inflicting harm on themselves.” Whether the asserted injury is in fact self-inflicted is crucial to establishing whether standing exists. For the reasons stated above, if the statute is unconstitutional then the harm seems to be self-inflicted because plaintiffs’ sole claimed reason for why they continue to maintain minimum essential coverage — that the law compels them to — would not exist. I think this argument seems quite compelling. And there are other related arguments against standing for the individual plaintiffs.

In any event, let’s go back to the merits. In his attempt to justify his position, Judge O’Connor approvingly offered arguments propounded by the dissent in Sebelius and rejected — explicitly or implicitly — by the majority. For example, Judge O’Connor explained that the individual mandate must be a requirement because it uses the word “shall” (Texas, p. 31). This argument was considered and rejected by the Sebelius majority when it decided to construe the mandate as merely a condition that triggered a tax (Sebelius, p. 38). Judge O’Connor also approvingly cited the joint dissenters’ argument that the individual mandate must be a requirement due to the separate set of exemptions the Affordable Care Act provides for the mandate itself as opposed to the penalty (Texas, p. 33). Arguments like this would have been perfectly reasonable before 2012, but in light of Sebelius’s ruling that the mandate is not a requirement, I can’t agree that such arguments are still tenable.

You might be wondering how some distinguished legal scholars arrived at the contrary conclusion. In large part the disagreement seems to be due to the different ways we interpret Sebelius. For instance, Professor Josh Blackman, the author of “Unprecedented,” has defended Judge O’Connor’s ruling on the mandate. Professor Blackman suggests that in 2012 Roberts actually “rejected” the argument that §5000A provided a choice between two equally lawful options: “Roberts … observed that ‘[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals “shall” maintain health insurance.’ In other words, no such choice exists.”

Respectfully, I read Roberts’ opinion differently. It seems to me that in describing the “most straightforward” way to read the mandate, the Chief Justice was merely noting that common interpretation before rejecting it as, in essence, legally incorrect, since in his view it would render the provision unconstitutional. Professor Blackman allows that Roberts “was willing to accept [the tax] argument for purposes of the saving construction,” but I would go further and say that Roberts appeared to believe the tax/lawful choice interpretation was the correct and ultimately authoritative construction of the statute. Indeed, as noted above, Roberts and his four liberal colleagues stated explicitly in the majority opinion that “[t]hose subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes” (Sebelius, p. 44, n. 11). That sentence and its surroundings contain no qualifications on that statement; the declaration is categorical and clear. Even more evidence may be found in this statement by the majority: “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance” (p. 38).

Let’s get one thing straight: Whether a reading of a text is “fairly possible” does not really depend at all on congressional powers. Considerations of constitutionality only kick in to decide which fairly possible reading to adopt (if there are multiple such readings). Specifically, if there exist one or more fairly possible readings that would make a provision valid, judges are obliged to adopt one of those constructions rather than any other fairly possible constructions that would render the provision invalid.

Now let’s carefully go back through Sebelius. Chief Justice Roberts found that there were two fairly possible readings of §5000A. He felt that one of these — reading the section as imposing a requirement backed by a penalty — was the most natural interpretation of the plain text, and other things being equal he would have preferred to adopt this reading. He concluded, though, that this construction would force him to declare the section unconstitutional. That’s why he turned to the second interpretation he saw as fairly possible: §5000A did not declare failure to have insurance unlawful, but offered a choice between two lawful options. At the time Roberts confronted the issue, these two lawful options were either getting insurance or paying a specified amount of money. Of course, after the elimination of the penalty, the two lawful options are either getting insurance or not doing anything.

Roberts focused on the taxing power in Sebelius because an exaction of a non-zero dollar amount requires an enumerated congressional power (here, the taxing power) to support it, and at the time Congress made those without insurance pay money. But “making” people do nothing — which is now how Congress “penalizes” those who don’t get insurance — requires no constitutional power at all. Neil Siegel recently explained this, in a blog post amusingly titled “Congress’s Inherent Power to Require No One to Do Anything”: “To put it bluntly, Congress does not require an enumerated power to declare that Americans must either do X or else not do X and suffer no consequences. After the 2017 statutory amendment to the ACA, that is what the individual mandate and shared responsibility payment provisions provide.”

The fact that §5000A arguably no longer contains a valid exercise of the taxing power (because it might no longer raise any revenue) does not suddenly make Sebelius’s basic construction of the section inapplicable. Even if the precise circumstances Sebelius faced no longer exist, it does not follow that the proper analysis somehow defaults back to a de novo look at the text’s most natural meaning, which virtually everyone has always agreed is as a requirement-with-penalty. In a December 30 order staying his judgement while appeals proceed, Judge O’Connor doubled down on his initial reasoning. He suggested that an argument like mine “is premised on the view that the Supreme Court’s reasoning in NFIB did not simply craft a saving construction but instead permanently supplanted Congress’s intent by altering the very nature of the ACA” (p. 7). That is essentially what I’m arguing, although for what it’s worth the Supreme Court certainly did not appear to see its reasoning as “supplant[ing] Congress’s intent.” Consider this statement I noted above: “That Congress apparently regards such extensive failure to comply with the mandate as tolerable suggests that Congress did not think it was creating four million outlaws. It suggests instead that the shared responsibility payment merely imposes a tax citizens may lawfully choose to pay in lieu of buying health insurance” (Sebelius, p. 38).

Also, part of the reason I’m hesitant to dismiss the Sebelius tax argument as just an ephemeral “saving construction” is that the four liberal justices who joined Roberts didn’t believe it was a saving construction, but apparently saw it as just an equally valid alternative way of deciding the case. They did not join Parts III–B or III–D of Roberts’ opinion, which explained why a “saving construction” was necessary in order to avoid having to declare the statute unconstitutional. Justice Ginsburg, joined by her three liberal colleagues, wrote, “I agree with the Chief Justice that … the minimum coverage provision is a proper exercise of Congress’ taxing power … Unlike the Chief Justice, however, I would hold, alternatively, that the Commerce Clause authorizes Congress to enact the minimum coverage provision” (Sebelius, pp. 1-2). And she chided Roberts for, in her view, unnecessarily resolving the Commerce Clause question: “The Chief Justice ultimately concludes, however, that interpreting the provision as a tax is a ‘fairly possible’ construction. That being so, I see no reason to undertake a Commerce Clause analysis that is not outcome determinative” (p. 37, n. 12).

Ultimately, the 2017 amendment to the individual mandate didn’t change the basic structure the Supreme Court found in Sebelius, which was a fully authoritative construction of the statute: The law provides a choice between two lawful options. And, unlike in Sebelius, the plaintiffs in Texas challenged only the mandate — §5000A(a) — and not the penalty (Texas, p. 27). Thus, under Sebelius, the plaintiffs in Texas were really just challenging one of two options, not a requirement. But as I explained above, Congress plainly does not require any enumerated power to pass such an “option.” (Marty Lederman cogently made this argument a couple weeks ago.) At a fundamental level, the construction the Sebelius majority imposed on §5000A did not depend on whether the interpretation involved a tax. The majority may have chosen to adopt that reading because it had a tax (and thereby provided a way to maintain the penalty but avoid having to strike down the provision), but the interpretation itself — of a non-mandatory “shall” and a choice between two lawful options — would have been fairly possible regardless. Thus, this basic construction is still valid even if there is no longer any tax. It may not be the interpretation some wanted, but it’s the one the Supreme Court adopted. And it still has the benefit of avoiding unconstitutionality (ut res magis valeat quam pereat) since, as I’ve explained, it would today sustain §5000A. Judge O’Connor’s reading invalidates the provision.

True, my interpretation would mean the individual mandate provision would currently be without any effect, thereby infringing upon the canon against surplusage. Nevertheless, that canon yields readily to context, and in this case it is not hard to imagine why Congress could have wanted to substantively gut the provision with the 2017 amendment. The 115th Congress boasted Republican majorities in both the House and the Senate, and Republicans had made opposition to the Affordable Care Act a rallying cry throughout the decade.

Suggestions that Congress in 2017 consciously intended to get the individual mandate struck down by pulling the floor out from under the saving construction are implausible. Nobody seems to have mentioned any such plan at the time, and I think it’s more likely that the Republican members of Congress simply reasoned, “We know the Supreme Court has ruled that there is no requirement — only a tax — so when we eliminate the tax there will be essentially nothing left of §5000A.” In any event, there is a simple explanation for why Congress left the individual mandate itself intact despite removing the penalty: Due to procedural rules, Congress couldn’t use the Tax Cuts and Jobs Act to repeal the mandate – that would have required a filibuster-proof majority in the Senate, which Republicans didn’t have. All it could do in that act was reduce the associated tax penalty (Texas op., p. 11).

I have tried really, really hard to understand the intricate case made by the law’s challengers and Judge O’Connor. At the end of the day, though, I think that the challengers’ reasoning has too many holes. At least for the time being, I cannot subscribe to their argument. §5000A(a) may be known as the “individual mandate,” but it’s not really a mandate. It’s a mere phantom of one.


Sunday, January 6, 2018

by Anna Salvatore

The Supreme Court agreed to hear six cases on Friday. Two of them deal with partisan gerrymandering, one concerns whether the definition of “crime of violence”  is unconstitutionally vague in a federal law, another is a securities case, and then there’s Iancu v. Brunetti, a First Amendment challenge to the government’s ban on registering “scandalous” and “immoral” trademarks.

The brief in Iancu differs from the average Supreme Court brief in that it spends a page listing vulgar registered trademarks, including “SATAN’S PISS,” “PINK TACO,” and “WTF IS UP WITH MY LOVE LIFE?” But there are also serious legal arguments worth exploring. For example, Brunetti argues that the government is practicing viewpoint discrimination by accepting some scandalous trademarks and not others. Officials are “selectively approving or refusing profanity, excretory, and sexual content based upon the level of perceived offensiveness,” he wrote, as they tend to favor smiley face marks over middle fingers, polite humor over raunchy humor, and even pro-capitalism marks over anti-capitalism marks. He disagrees with the government on this point, since Solicitor General Noel Francisco claims that the Scandalous Clause is content-neutral.

To be clear, laws are almost never allowed to regulate speech based on its content. Laws that regulate based on content must survive strict scrutiny review, which requires the government to “prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” (Reed v. Town of Gilbert) Like Ronald Torreyes, the Yankees utility man who can play all over the infield, strict scrutiny is somewhat flexible. It applies when a government law bans protected speech and when the law only burdens protected speech.

In 2017, the Supreme Court decided a case similar to Iancu called Matal v. Tam.  There it held that the Patent Trade Office can’t deny trademark applications based on certain marks’ “disparaging” nature. The funky thing is that the Court couldn’t agree on how much scrutiny the Disparagement Clause deserved. Justice Alito opted out of the debate in his majority opinion, writing that it was unnecessary to apply strict scrutiny, intermediate scrutiny, or Justice Kennedy’s contrived “heightened scrutiny” if an even less stringent standard called Central Hudson would do. Yet certain parts of his opinion garnered four votes, not five, which leaves some doubt about whether his scrutiny analysis is binding law.

Parsing meaning from a fragmented opinion is difficult. If four justices vote for one level of scrutiny and four justices vote for another, which side controls? Marks v. United States (1977) tells us that the narrower interpretation is the holding, but as UCLA law professor Richard Re explains, “extracting precedent from fractured decisions can be like squeezing water from stone.”

Brunetti is trying to wring every last drop from the stone, but it’s not yielding any water.  You see, he thinks that the same level of scrutiny used in Tam, which dealt with the Disparagement Clause of the Lanham Act, should also be imposed on the Scandalous Clause. He’s just having a hard time understanding which level of scrutiny was used in Tam. “Does Justice Thomas’ concurrence, together with the four justices joining Justice Kennedy’s opinion, make five for scrutiny greater than intermediate scrutiny?” asked Brunetti. “Or instead, do we look at the justices’ reasoning (i.e., in a Venn diagram, the circles of the justices’ reasoning do not overlap). If the latter, was the level of scrutiny decided by an evenly divided court and therefore, without precedential effect, at least as to that issue?” In his brief, he asks the Court to provide an unambiguous bright line rule for applying the Marks rule.

Brunetti also tells the Court that the Scandalous Clause is unconstitutionally vague. He says the clause is too vague for two reasons: it doesn’t give fair notice about which marks are banned, and the Patent Trade Office applies it so inconsistently that the instructions must be unclear. However, the goverment’s reply brief in Tam counters that the vagueness standard is less strict when the law at issue doesn’t ban or punish speech. It says that the standard is relaxed if laws “simply [confer] benefits on speakers whose expression satisfies certain criteria,” like the PTO confers trademarks on applicants. After all, the PTO can’t punish you for proposing a vulgar trademark. It can only say, “Nah, we can’t accept this trademark. Sorry.”

If you’d like to learn more about the case, here are the hyperlinks for Brunetti’s writ of certiorari, the lower court opinion in Iancu, the Supreme Court’s opinion in Tam, and Richard Re’s tremendous paper called “Beyond the Marks Rule.” 

Thanks for reading.


Thursday, January 3, 2019

The Supreme Court’s Takings Clause Jurisprudence: A Comedy of Errors

by Curtis Herbert

Although the Supreme Court gets a great many things right, certain areas of the Constitution have been neglected or wrongfully changed. One such area is the Takings Clause. Over the course of several decades, the Supreme Court has effectively rewritten the clause, radically altering both its scope and the protections that it offers.

The necessary background doesn’t begin with Kelo v. New London, or even the precedents Justice Stevens cites in his majority opinion. It begins with the basic concepts of property law. Ownership of property gives the owner a whole host of rights. She does not merely have the right to exclude; otherwise she could not enter her own land. She also has the right to construct buildings and to use her land for grazing, farming, or simply to let it sit. Title to land also necessarily includes the ability to dispose of it as she chooses: to sell it, give it away, or bequeath it in a will. These rights stop, however, when there is material damage to someone else, as when a property owner constructs a building that produces soot which covers her neighbor’s house, which is a tort. It’s your land, and you can do what you want with it so long as you don’t harm anyone else. It is this concept of property that is protected in the Takings Clause, not one reduced to merely the right to exclude or the right to sell property.

But the Court’s errors breeze over such paltry barriers as enumerated rights. In the 1978 case of Penn Central Transportation Co. v. New York City, a majority of the Court held that, if New York so chose, it could prohibit the construction of a 55-story office building above a train station. This decision was made through a landmark preservation law, which forced owners of “landmark sites” (as designated by a committee) to seek permission before altering their sites. When Penn Central entered into a lease with another company to construct office buildings above the station, the Landmarks Preservation Committee intervened. In response, Penn Central claimed a violation of the Takings Clause and sought just compensation. The Supreme Court found no violation. It held that the city could block development of the air above the station with no regard to the several million dollars this would cost Penn Central. In doing so, it erred through several crucial misreadings of the Takings Clause.

First, Justice Brennan’s attempt to equate the committee’s decision with zoning laws is simply wrong. He misses the point entirely. Because owning property does not include a right to harm others or increase the risk of disease or fire, laws which protect neighbors and passerby from harm do not infringe on an existing property right. Now, zoning laws are (at least ostensibly) motivated by a desire to regulate for safety or the public welfare. But in Penn Central, no one alleged that the proposed building would be unsafe — only that it would be ugly. The committee that prohibited the building didn’t seek to protect any of the interests that provide reason for zoning laws. But it did remove Penn Central’s ability to make decisions which are inherent, inextricable, and central to the idea of property ownership, absent any pretense save for ‘we don’t like it.’

Second, Justice Brennan performs an act of linguistic gymnastics worthy of Chief Justice Marshall. He states that “the law does not interfere with what must be regarded as Penn Central’s primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a ‘reasonable return’ on its investment.”

As it turns out, when you remove the words “taking” and “just compensation” from the Constitution and replace them with words such as “primary expectation” and “reasonable return,” the results you get are very different. The plain text requires that if a taking (a deprivation of property rights) has occurred, then just compensation (the market value of the rights being interfered with) must be paid. The newer, more hip version Justice Brennan creates asks not whether there was a taking, but whether the “primary expectation” that guided purchase of the land was interfered with, or whether the owner of the property could obtain a “reasonable return” on her investment in the property. This is nothing less than a radical alteration of the Takings Clause, one that even Justice Stevens (who would later write the majority opinion in Kelo, as well as in Babbit v. Sweet Home) dissented from.

The Kelo opinion contains a similarly fanciful reading of the Takings Clause. Susan Kelo was the owner of a small pink house that the government bulldozed to make space for a new research facility. In his majority opinion, Justice Stevens does what Justice Brennan did in Penn Central: delete a phrase and add his own. (To be fair to Justice Stevens, he was faithfully interpreting a couple of abhorrent precedents. While I would rather have seen the precedents overturned, this makes his opinion much less absurd than Brennan’s.)

In any event, the phrase Justice Stevens reads out is the requirement that property be taken “for public use.” Nobody denies that the bulldozing of Susan Kelo’s property, if it was indeed constitutional, constituted a taking. Accordingly, she was paid just compensation. The issue before the Court concerned whether or not the taking was constitutional in the first place. Susan Kelo and her lawyers proclaimed that since the taking was not for “public use,” it was unconstitutional even if compensation was paid. Justice Steven then proceeded to don his Brennan hat, and he equated public use with public benefit, or public purpose. What, then, are the public purposes that the city of New London used to sustain their actions? In a case called Midkiff, a willfully oblivious and shameless Court held that “the State’s purpose of eliminating the social and economic evils of a land oligopoly” qualified as public use. Here, Justice Stevens followed their tawdry example, holding that making room for a research building in order to revitalize the economy is a public use. The Court, naturally, will be extremely deferential to governments when they decide what is an economic benefit, ripping out the heart of the phrase “public use.”

The end result is that Kelo v. City of New London did to “public use” what Wickard v. Fillburn did to “commerce among the several states.” It took a phrase which imposed real limitations on federal power and interpreted it in such a nebulous way as to render it entirely devoid of its original meaning. When Wickard is combined with Penn Central, the ability of the government to seize private property is increased in a way that is inconsistent with the Takings Clause. The Supreme Court ought to take a hard second look at this area of constitutional law.

Year in Review

High School SCOTUS is almost ten months old. It’s hard to believe, because I still find myself saying that I started the blog “a couple months ago” — but here we are. Since its inconspicuous birth in March, six other teenagers have begun writing for this nerdy high-school-oriented site. Their names are Joe, Brenna, Caleb, Kai, Jackson, and Curtis, and they hail from places as far-flung as California and Oklahoma. Their friendship has been the best part of the blog experience.

On October first, the hallowed legal holiday, five of us converged on D.C. to see the oral arguments for Weyerhaeuser and Mount Lemmon. This was our first time meeting each other, and we were overjoyed to chat in person after months of digital conversations. I’m glad to say that the day couldn’t have gone much better. Court artist Art Lien sketched us in the courtroom (see my Twitter header), we ran into several of our favorite journalists, and the court cafeteria wasn’t nearly as bad as expected. Shocked that the whole trip was actually happening, we munched our chicken nuggets and discussed the questioning in Mount Lemmon.


The rest of the year was more low-key than our October trip, but no less important for the development of High School SCOTUS. Many people were kind enough to let us interview them:

Others gave the blog a platform on NPR, the Columbia Journalism Review, the Lawfare Podcast, and How Appealing.

And countless others offered their support and encouragement. Thank you to friends, family, and #AppellateTwitter for making 2018 genuinely unbelievable. I’m psyched for whatever 2019 will bring!

-Anna Salvatore

Thursday, December 27, 2018

You may remember a case from last year’s term called Epic Systems Corp v. Lewis. Justice Gorsuch wrote for the five-justice conservative majority, holding that companies can require their employees to resolve work-related disputes through individual arbitration and waive their right to pursue claims as a class. Feel free to read the opinion for a more complete explanation.

About a week ago, I noticed an article in the New York Times about the wacky work culture of Epic Systems. It’s the kind of information I wish I had when the case was pending at the Supreme Court — that “the woman who controls [Epic Systems] is a septuagenarian coding savant, its campus contains a human-size rabbit hole and an elevator to hell, and in all probability your personal medical records are on servers running its software.”

Who knew!?

Here are some excerpts:

“Epic Systems is a health care services provider with $2.7 billion in annual revenue. Its mathematician chief executive, Judy Faulkner, is a billionaire recluse who hosts P.T. Barnum-esque gatherings for clients. Those clients — big hospitals and health systems around the United States and more than a dozen overseas markets — are served by customer-service representatives known as BFFs. Every month, employees are compelled to gather in a subterranean chamber for two-and-a-half-hour staff meetings that have been likened to a megachurch experience. Workers are discouraged from ordering business materials on Amazon or living more than 45 minutes away from the office, in order to shorten commutes and keep Epic’s wealth in the local economy.

I walked past a sculpture of Humpty Dumpty, set on a wall and typing away on an Epic laptop, past the warning against carrying concealed weapons (Wisconsin allows them in most public venues), and into reception.

Epic’s coders often leave campus to embed in operating and recovery rooms, where they watch nurses ripping the tops off blood bags and surgeons opening up people’s chest cavities. It’s an experience that young engineers are unlikely to get at, say, Facebook or Snap, working on algorithms that tailor ads to demographic groups or insert rainbow vomit into photographs.

“The volume of work at Epic, regardless of what role you’re in, is very high,” said Jacob Lewis, who was a technical writer at Epic before he left in 2014. He later sued the company over unpaid overtime. His case, a class-action suit that hinged on the obligation to sign an employee agreement that forced workers into arbitration, rather than litigation, was combined with similar cases and was heard by the Supreme Court last year. The workers lost.

This combination of chaotic, stressful client visits and isolating, mundane office work might explain the company’s Disney dimension. Epic is a place where wedding music plays on a campuswide public-announcement system when new clients are signed. Dry-cleaning services are found at the “New York Sock Exchange.” Employees can hurtle down an “Alice in Wonderland” slide into a room with miniature furniture. They are encouraged to visit a conference room encased by waterfalls and a shark pond when in need of inspiration. (The shark is fake.) Internal awards for outstanding work are named after Jack Bauer and MacGyver.

Workers who fully commit to Epic — who survive the long hours and grisly sights — are treated to a remarkable perk. After five years, they get a sabbatical, including round-trip airfare for two to travel somewhere they’ve never been for a month, plus a per diem for meals and lodging. (They get another sabbatical after 10 years, 15, and so on.)”

–Anna Salvatore

Saturday, December 22, 2018

by Anna Salvatore

My high school was submerged in scandal last week. I won’t name any names, but one of my classmates allegedly posted racist messages to his Snapchat story. The messages included “Fuck n—–s,” “Who wants to get lynched?”, and a scrawled statement that a black classmate is a monkey. The perpetrator is suspended from school for the next ten days, and there’s a chance he’ll be expelled.

All of this talk has me wondering: what are the constitutional grounds for punishing public school students for their online, off-campus speech?

Lower court judges mainly look to Tinker v. Des Moines, which provides that students’ conduct, “in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.” The key phrase is “in class or out of it,” which many judges understand as applying to off-campus speech.

That’s what the Ninth Circuit understood in LaVine v. Blaine School District (2001), where it upheld eleventh grader James LaVine’s expulsion for writing violent poetry. Even though James’s poem was written off campus, and it was unrelated to any school assignment, its content had troubling implications for his classmates’ safety. “As I approched, the classroom door, I drew my gun and, threw open the door, Bang, Bang, Bang-Bang,” James wrote. “When it all was over, 28 were, dead, and all I remember, was not felling, any remorce, for I felt, I was, clensing my soul.” The Ninth Circuit barely addressed speech’s off-campus nature, instead holding that the expulsion was constitutional under Tinker because Blaine officials could reasonably foresee “substantial disruption… or material interference with school activities” if James continued attending school. The substantial disruption test seems to be a popular and relatively easy to prove method of declaring off-campus speech unprotected.

Another helpful case is Hannibal School District v. D.J.M. After tenth grader D.J.M. sent threatening text messages to a classmate, he was placed in juvie, evaluated in a psychiatric hospital, and suspended for the rest of the school year. The Eighth Circuit affirmed his suspension for two reasons. The first reason, as I mentioned a couple paragraphs ago, is that his threatening texts could be reasonably foreseen to create “substantial disruption” to his school. This isn’t a radical assumption – D.J.M. had been speculating about how to purchase a gun and which classmates he might shoot. The other reason is that his speech was deemed an unprotected true threat.

True threats are linked with Watts v. United States, in which a young anti-war protester named Watts was prosecuted for threatening President Lyndon Johnson. Watts said that if he got drafted, LBJ would be the first person he killed. The justices ruled for Watts because his remarks were mere “political hyperbole,” and in their per curium opinion, they gave three factors for determining whether speech is a true threat: 1) the context of the statements, 2) how listeners reacted, and 3) whether the threat was conditional. Because Watts was participating in a political debate, because his statement was conditional upon joining the armed forces — which he said would never, ever happen — and because both he and the crowd laughed after his statement, the Supreme Court didn’t think that his threat was grave enough to be a true one.

The justices elaborated on true threats in Virginia v. Black in 2003, finding that states can outlaw cross-burning that is intended as a threat rather than symbolic expression. “While a burning cross does not inevitably convey a message of intimidation,” wrote Justice O’Connor, “often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful.”

I won’t try to analyze the incident at my school under the frameworks of substantial disruption or true threats — that might be illegal. But if the Snapchat incident does end up in court, I’ll be curious to see whether Tinker and Watts are thrown around.

If you’re looking for a sample opinion on off-campus speech, I recommend Judge Jon Newman’s opinion in Wisniewski v. Bd. of Ed. of Weedsport Central School Dist. He addresses the off-campus aspect of Aaron Wisniewski’s speech almost as an afterthought,  dispatching it in under a page, and then he makes the important point that proving substantial disruption is much easier than satisfying the three elements of Watts.

Thanks for reading, and best wishes for Christmas and the New Year.

Sunday, December 16, 2018

Auer, Executive Agencies, and the Supreme Court

by Curtis Herbert

The Supreme Court recently accepted a very important cert petition, and it will now decide whether to overrule two administrative law precedents: Auer and Seminole Rock. But what is the significance of these cases?

Auer deference, generally speaking, is the practice of deferring to agencies when they interpret their own ambiguous regulations. Seminole Rock does roughly the same thing. When you hear the word “deference” in a legal context, it is often preceded by “Chevron.” But that is not the case here, and it’s important to distinguish between the two. What Auer does is expand upon Chevron deference, adding to the power of agencies. The central holding of Chevron was that courts ought to defer to agencies’ judgements about Congressional statutes. Auer deference goes one step further, directing courts to defer to agencies’ interpretation of their own regulations. These cases join Chevron and Brand X to form what some consider the dreaded triumvirate of administrative deference.

The argument against Auer deference, as set forth by the petitioner, goes something like this:

1: Auer deference is simply a judicial policy, and a faulty one at that. It has no underlying constitutional reasoning.

2: Auer deference raises serious separation of powers questions

3: It is also incompatible with due process and fair notice.

These are all interesting claims. They also relate to a case I wrote about very recently, Sessions v. Dimaya, which I will revisit in the context of this case.

The first claim is not only a challenge to the constitutional basis of Auer, but to its practical application. It seems relatively clear (at least to me) that nothing in the Constitution mandates judicial deference to administrative agencies, which did not exist at the time of the founding. In fact, as the petitioners will argue, separation of powers concerns may counsel against Auer deference.

After concluding that there is no constitutional basis for this policy, petitioners then proceed to question its wisdom. Their argument is quite simple, and I’ll summarize it by paraphrasing Richard Epstein on a recent First Mondays podcast: “The relative advantage of the judiciary is statutory construction, while the relative advantage of agencies is fact-finding.” What on earth does this mean? It means that, generally speaking, judges are better at interpreting statutes and regulations, and agencies are better at fact-finding and policy-making. Judges have legal training and experience, while agencies have more resources and expertise in the areas they are tasked with overseeing. Why, the argument goes, are we throwing away the intelligence and capabilities of judges who specialize in interpretation? This line of reasoning advocates for deference to agencies when they make factual determinations, but not when they make interpretive ones.

The ensuing portion of the argument focuses on perceived separation of powers issues with Auer. Here is an excerpt from the cert petition: “The court of appeals wholly abdicated its constitutional mandate to exercise independent judgment; it effectively delegated to the VA its authority to interpret legal texts.” (Petition for a writ of certiorari, Kisor v. O’Rourke.) The agency is interpreting its own regulations, and, under this theory, it is the obligation of the judiciary to step in and ensure fairness. But, as the petition explains, this does not happen at all under Auer:

“the sole basis of [the] decision articulated by the court of appeals was that the presence of two competing, reasonable constructions of the regulation obligated the court to declare the regulation “ambiguous.” . . . That is all it takes for Auer to apply: a “regulation is ambiguous on its face” whenever “competing definitions for a disputed term seem reasonable.”

Petitioners noted that because the lower court could find a reasonable reason for its interpretation, the rule was ambiguous, and so Auer deference was in effect. What this does is import a test akin to modern-day rational basis scrutiny into administrative law. So long as the agency can make an argument, regardless of whether it is correct or not, that means there is some ambiguity. And because there is ambiguity, the agency wins under Auer. Therefore, virtually any argument an agency can make will be upheld under Auer. And in the world of Auer, there are no suspect classes. There are no fundamental rights. It’s rational basis scrutiny all the way. The courts are doing precisely the opposite of what they are supposed to do, and as a result are violating separation of powers principles. Agencies are given free reign, which brings us to the third assertion: Auer conflicts with due process.

The specter of agency regulations and the future of the administrative state were fresh on the justices’ minds last year in Sessions v. Dimaya. When Justice Gorsuch wrote his concurrence, he was worried about excessively vague laws in civil as well as criminal contexts. He wanted the Court to treat vague laws the same in both contexts. Perhaps it is now even more evident why the plurality in that case declined to extend that standard of review: it might endanger some of the modern administrative state.

Here’s why this is relevant: what Auer does is incentivise vague and unclear regulations. If you run an agency, why make clear and unambiguous rules when you know that you can interpret vague ones however you want, and the courts will go along with it? What Auer does is make the amount of deference dependent on the amount of ambiguity. As the ambiguity increases, so does the range of interpretations, as well as the likelihood of the interpretation being upheld. When perverse incentives are created, the end result is usually perverse actions. The reason that vague regulations and laws are so dangerous, and teeter on the brink of unconstitutionality, is explained in part in my earlier article, but for a more thorough explanation I suggest Justice Gorsuch’s opinion. Succinctly put, it is essential to the rule of law that citizens be able to know what the law is. That element of the rule of law is not being done any favors by Auer deference.

That’s the short version of the argument against Auer. Feel free to take it or stick your pencil through it. I, for one, am looking forward to a fiesty oral argument and some blistering opinions. We can be pretty certain Gorsuch, Alito, and Thomas will vote to get rid of Auer. What position the Chief Justice and Justice Kavanaugh endorse remains yet to be seen. For now, eager anticipation will have to suffice.