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Texas ACA Opinion or “’If they would rather die,’ said Scrooge, ‘they had better do it, and decrease the surplus population’” or did Judge O’Connor go to law school?


On Friday, Judge Reed O’Connor issued an Opinion in Texas v. United States that turned the ACA into the baby being thrown out with the bathwater.

Here are some articles that I think do a good job of highlighting the problems with the Opinion:

And here is my bulleted “summary.” It’s obscenely long, itself, but shorter than the 55-page Opinion O’Connor issued. Also – I wrote fast. Apologies for typos/grammar errors, changes in tense, etc.

I. Background

Here the Court runs through the history of the ACA, NFIB, and the TCJA.


  • Became law in 2010 with the purpose of achieving “near universal” health coverage and lowering health insurance premiums through the creation of effective health insurance markets.
  • Required minimum coverage (Individual Mandate) and imposed a tax on people who were subject to the requirement but chose to disobey ($695 or 2.5% percent of family’s household income, whoever was higher).
  • Exceptions to the mandate included those who had a religious exemption, non-citizens, legal aliens, and people in jail.
  • Also five categories of people exempted from the shared responsibility tax but not the individual mandate (i.e., must maintain minimum coverage but not taxed for a failure to do so).
  • Protects people with preexisting conditions – by requiring healthy people to have health insurance and including them in the risk pool, insurance premiums across the board were to decrease.
  • Includes the “guaranteed-issue” and “community-rating” provisions. The first requires insurers to “accept every employer and individual in the State that applies for . . . coverage;” the latter prohibits insurers from charging higher rates to individuals based on age, sex, health status, or other factors.
  • Requires employers with more than 50 employees to provide insurance or pay a penalty.
  • Allows dependent children to remain on their parents’ insurance until age 26.
  • Reduced hospital reimbursements by more than $200 billion over 10 years.
  • Created health insurance exchanges and expanded the scope of Medicaid, covering millions more.

B. NFIB (National Federation of Independent Businesses v. Sebelius (2012))

  • After ACA was enacted, 26 states, individuals, and an organization of independent businesses challenged its constitutionality.
  • Main argument was the ACA’s Individual Mandate and the Medicaid expansion exceeded Congress’s powers.
  • Supreme Court sort of agreed and said the Individual Mandate was beyond the Interstate Commerce Power BUT fell under Congress’s power to impose taxes.
  • Incredibly complicated, splintered decision from SCOTUS.
  • Part III-A: Roberts stated that the Interstate Commerce Power does not factor in here, because it regulates “activity” not “inactivity” (i.e., people NOT buying insurance is an inactivity). Roberts said that the Constitution gave Congress the power to regulate commerce, not compel it.
  • No other Justice joined this particular part of Justice Robert’s opinion, BUT the dissent found the same on the Interstate Commerce Clause (ICC) question, so the majority of SCOTUS found that the Individual Mandate was unconstitutional under this particular Clause.
  • Part III-B: Roberts found that because the Individual Mandate was impermissible under the ICC, SCOTUS had to consider whether it was constitutional under the Tax Power.
  • Part III-C: Joined by Ginsburg, Breyer, Sotomayor, and Kagan. Found that the Individual Mandate and associated shared-responsibility payment was indeed a constitutional exercise of Congress’s Tax Power. The analysis here focused mainly on the payment rather than on the Mandate.
  • Part IV: Roberts was joined by Breyer and Kagan in finding that the Medicaid-expansion unconstitutionally coerced States in compliance, but because there was a sever ability clause in the law, the unconstitutional portion of the Medicaid provision could be severed. Ginsburg and Sotomayor disagreed that tis was unconstitutionally coercive, but agreed that IF the provision was unconstitutional, it could be severed.
  • Then there was a joint dissent!
  • In it, Scalia, Kennedy, Thomas, and Alito agreed with Roberts that the Individual Mandate exceeds Congress’s powers under the Interstate Commerce and Necessary and Proper Clauses, but they felt that it could NOT be characterized as a tax.
  • This is primarily because (according to them), Congress had rejected an earlier version of the ACA that “imposed a tax instead of a requirement-with-penalty.” Therefore, characterizing the Mandate as a tax ran afoul of Congressional intent.
  • This dissent addressed whether the entire ACA should fall on the basis of the Mandates’ and expansion’s unconstitutionality.
  • They said yes, because there was no way for the ACA to function without its (according to them) unconstitutional parts.

C. The TCJA (Tax Cuts and Jobs Act)

  • Passed and signed into law in 2017.
  • Reduced the ACA’s shared-responsibility payment to zero, effective January 1, 2019 but took no other action pertaining to the ACA.

II. Procedural Background (of THIS case)

  • Plaintiffs: Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, Missouri, Nebraska, North Dakota, South Dakota, Tennessee, Texas, Utah, West Virginia, Wisconsin, Governor Paul LePage of Maine, and individuals Neill Hurley and John Nantz.
  • Defendants: USA, US Department of Health and Human Services, Alex Azar (in his capacity as Secretary of HHS), the IRS, and David Kautter (as Acting Commissioner of the IRS).
  • Intervenor Defendants: California, Connecticut, Delaware, Hawaii, Illinois, Kentucky, Massachusetts, Minnesota, New Jersy, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Washington D.C.
  • Plaintiffs: Wanted a declaration the Individual Mandate – as amended by the TCJA – is unconstitutional and thereby makes the rest of the ACA void (due to not being severable).
  • Their theory is that because the TCJA removed the tax payment, the tax-based saving construction developed in NFIB no longer applies. They adhere to the joint dissenters in the NFIB case, who argued that the Individual Mandate is inseverable from the rest of the ACA.
  • Federal defendants agree with the Plaintiffs.
  • The Intervenor Defendants disagree with both of the above.
  • Plaintiffs wanted a Preliminary Injunction; Federal Defendants wanted a judgment.
  • Court was down to resolve the issues on summary judgment.
  • Plaintiffs said that even though they WANT a preliminary injunction, they’d be okay with the court “simultaneously considering [their] application as a motion for partial summary judgment on the constitutionality of the ACA’s mandate.”
  • The Intervenor Defendants opposed converting the preliminary injunction briefing to a summary judgment ruling because they wanted to more fully brief the issues implicated: Article III standing, the Interstate Commerce Clause, and the scope of injunctive relief.
  • Federal Defendants asked the Court to wait to do anything until AFTER the enrollment period had concluded so there was no disruption.
  • The Court [was an ass, in my opinion] and decided that the Intervenor Defendants had adequately briefed their issues and decided to construe the application as a motion for partial summary judgment.

III. Legal Standards (Gonna whiz through this stuff – read the Opinion for more)

A. Article III Standing

  • Plaintiffs must demonstrate that they have met the requirements of standing because they are the party invoking the Court’s jurisdiction.

B. Summary Judgment

  • Moving party must show that the pleadings and evidence show “that there is no genuine dispute as to any material fact” and that they are “entitled to judgment as a matter of law.”
  • Court has to construe all reasonable doubts and inferences in favor of nonmoving party.
  • If there is conflicting evidence or inferences, court must deny the motion.

IV. Analysis

  • Three inquiries and conclusions:
    1) Parties satisfy the applicable standing requirements.
    2) The Individual Mandate can no longer be seen as an exercise of Congress’s Tax Power; it is unconstitutional.
    3) The Individual Mandate is essential to and inseverable from the remainder of the ACA.

A. Article III Standing

[Skipping over this because it’s not the meat and potatoes of this Opinion, or what most people are particularly interested in.]

B. Individual Mandate

  • TL;DR in this section is “The Court finds that both plain test and Supreme Court precedent dictate that the Individual Mandate is unconstitutional under either provision [Tax Power and Interstate Commerce Clause]”
  • The Court frames this is flowery language pulled from iconic past SCOTUS cases like Marbury v. Madison and McCulluch v. Maryland. I’ve not done full due diligence yet, but I’m raising an eyebrow at the litany of contextless quotes.

1. Tax Power

  • The Court sets forth the following characterization of the problem: “The question here is whether an eliminated shared-responsibility exaction continues to justify construing the Individual Mandate as an exercise of Congress’s Tax Power to implement Section 5000A [of the ACA].”
  • The Plaintiffs and Federal Defendants answered that question with “no.”
  • The Intervenor Defendants argued that because, among other things, the previously paid shared-responsibility payments would make their way into the treasury for years to come, Section 5000A could still be fairly read as a tax.
  • Important to note that Section 5000A has several subsections.
  • 5000A(a) is the Individual Mandate. 5000A(b) is the shared-responsibility payment. 5000A(c) is the subjection that actually sets the amount of the payment and it is the subsection that was actually affected (zeroed-out) by the TCJA.
  • To recap: Plaintiffs are challenging the Individual Mandate. Not the payment. Not the amount of the payment.
  • The Plaintiffs argue that with the passage of the TCJA, the only part of 5000A that stands is the Mandate and, standing alone, it is unconstitutional.
  • In order to get to its ultimate the decision, the Court has to spend a lot of time trying to thread a needle: acknowledging the close relationship/interdependence between the Individual Mandate and the shared-responsibility tax while also trying to hammer home the idea that the Individual Mandate and the payment are “two very different animals.”
  • In sum, the Court’s opinion is that because the Individual Mandate no longer triggers a tax, because the shared-responsibility payment is zero, the Individual Mandate is unconstitutional. [But the Court conveniently never acknowledges that fact that a directive with no consequences is hardly a directive at all. Law says “buy insurance.” Person does not. Nothing happens. There is no constitutional violation anywhere in that equation.]
  • [Worth noting also that the Court ALSO ignores precedent from the 5th Circuit that holds that “an unused power to tax” doesn’t make an exercise of the taxing power unconstitutional. And that’s exactly what this is: Congress didn’t eliminate the Mandate or any of the subsections. Instead, it changed the AMOUNT of tax to $0. Arguably, that is very much an “unused power to tax” and constitutional in the 5th Circuit, WHERE TEXAS IS.]

2. Interstate Commerce Power

  • Intervenor Defendants argued that because there is no longer a tax, the Individual Mandate can be read as constitutional under the Interstate Commerce Clause. Remember, SCOTUS had an issue with the fact that Congress was ordering people to spend money. That Court found that while Congress can regulate the commerce stream, it can’t force participation in it.
  • However, now – arguably – there is no forced participation. It’s dead in the water. The Intervenor Defendants argued that people still have a choice they’ve always had – buy insurance or pay the tax. But now the tax is zero, so the choice is, effectively, buy insurance or don’t. *shrug*
  • The Court basically brushes this off and finds that the Intervenor Defendants’ position is illogical.
  • Oddly, the Court essentially concedes the point that the Individual Mandate doesn’t do anything in its (the Court’s) attempt to argue that the mandate can’t possibly fall under the regulation of commerce because to regulate is “to govern direct according to rule” and to “bring under the control of law or constituted authority” and the mandate falls short of all of this actions.
  • The Court also defers to the Plaintiffs’ statement that they “feel compelled” to comply with the law. Why? Simply because it exists, not because there are any penalties. [Sounds like a personal problem to me.]
  • The Court finds the Plaintiffs’ feelings unsurprising and says, “It is the attribute of law, of course, that it binds; it states a rule that will be regarded as compulsory for all who come within its jurisdiction.” (This is a quotation, not from a law book, but from “First Things: An Inquiry Into the First Principles of Morals and Justice.”)
  • The Court then says that law “has an enormous influence” on norms and conduct. [But again, neatly skirting the fact that there ARE NO CONSEQUENCES for ignoring this section of the ACA.]
  • The Court acknowledges that undoubtedly more people will choose not to comply with the Individual Mandate, but says that nonetheless, it is still law and people will feel bound.
  • [Mind you, nowhere in this entire section of the Opinion thus far does the Court quote any type of legal precedent. For anything.]
  • Finally, towards the end, the Court acknowledges that the Individual Mandate is essentially empty verbiage. However, because the words are still in the law and Congress didn’t eliminate them when it changed the shared-payment amount, they are still law.
  • The Court does us the favor of whipping out the dictionary again and defining some words like “requirement” and “shall” over the course of two paragraphs.
  • Then the Court primarily relies on NFIB for its argument that the Individual Mandate is still binding law and quotes Justice Roberts that the mandate “reads more naturally as a command to buy insurance.”
  • [Remember, NFIB was case that was decided when there were actual penalties for the Individual Mandate being ignored. The mandate was unconstitutional under the Interstate Commerce Clause because it forced people to spend money. The root of SCOTUS’s entire discussion of the mandate in NFIB was colored by the reality of the law as it existed THEN. Essentially, the Court here applies the context of 2012 to the current state of affairs in 2017 and appears to presume perfect application despite starkly different facts.]
  • Again, the Court does not quote from any legal decision in its analysis here – only NFIB and allusions to the text of the ACA.
  • The Court finds, “the Individual Mandate is no longer fairly readable as an exercise of Congress’s Tax Power and continues to be unsustainable under Congress’s Interstate Commerce Power. The Court therefore finds the Individual Mandate, unmoored from a tax, is unconstitutional.”
  • It then granted the Plaintiffs’ claim for declaratory relief as to Count I.

C. Severability

  • TL;DR: Because the mandate is out, so is the whole ACA!

1. Severability Doctrine

  • Essentially, the Court determined that the Individual Mandate was not severable from the rest of the ACA.
  • The Plaintiffs argued that it was inseverable. The Intervenor Defendants argued that it was severable.
  • The severability rule: Severability is only possible where “an act of Congress contains unobjectionable provisions, separable from those found to be unconstitutional.”
  • Interestingly, despite this case arising from the activities of the 2017 Congress, the Court instead primarily looks at and analyzes the actions of the 2010 Congress – the Congress that passed the law (a law which has now been altered by a different Congress).

2. Intent of the 2010 Congress

  • I’m not going to summarize everything the Court said about 2010’s Congress’s intent, but the discussion starts on page 37 and you should read it if you have time.

a. ACA’s Plain Text

  • Chief quotes: Congress intended to “significantly increas[e] healthcare coverage, lower health insurance premiums,” ensure that “improved health insurance products that are guaranteed issue,”and ensure that such health insurance products “do not exclude coverage of pre-existing conditions.”
  • And: Congress knew that “[i]n the absence of the requirement, some individuals would make an economic and financial decision to forego health insurance coverage and attempt to self-insure, which increases financial risks to households and medical providers.”
  • I.e., the Court highlights that the 2010 Congress intense to use the Individual Mandate and the shared-responsibility cost to achieve the above goals. The Individual Mandate was also intended [by the 2010 Congress] to reduce the number of uninsured, lower health insurance premiums, and improve financial security for families.
  • This, the Court, argued, is proof that the Individual Mandate is inseverable from the rest of the ACA. Greater proof still is the following [from the 2010 Congress]: “The requirement is an essential part of this larger regulation of economic activity, and the absence of the requirement would undercut Federal regulation of the health insurance market.”
  • The Court concludes this section by saying “on the unambiguous enacted text alone, the Court finds the Individual Mandate is inseverable from the Act to which it is essential.”

b. SCOTUS’s ACA Decisions

  • Again, looking back in time this Court finds that all nine Supreme Court Justices agreed that the Individual Mandate is inseverable from at the least the pre-existing condition provisions.
  • We rehash NFIB again. We address interceding cases between then and now. (As before, I’m not going to summarize all of this – it starts on page 41.)
  • Important quotation from this Court: “As did the Chief Justice, then, Justices Ginsburg, Breyer, Kagan, and Sotomayor all understood what Congress understood: Without the Individual Mandate, the guaranteed-issue and community-rating provisions ‘could not work.’” [We are back in 2010-2012 land again, where there was actually a tax being levied.]
  • Then the Court brings up King v. Burwell, a 2015 case, and points to elements of that Opinion that reinforce the Justices’ severability conclusions in NFIB: “The Supreme Court stated unequivocally: ‘Congress found that the guaranteed issue and community rating requirements would not work without the coverage requirement.’” [2010 Congress, mind you.]
  • In conclusion, this Court reiterates the Supreme Court’s finding on what was ostensibly a different law and finds “The Individual Mandate is essential to the ACA.”

c. The Individual Mandate is Inseverable from the Entire ACA

  • “The ACA’s text and the Supreme Court’s decisions in NFIB and King thus make clear the Individual Mandate is inseverable from the ACA. . . . [T]he Individual Mandate was essential to the ACA’s architecture.”
  • The Court embarks on a somewhat long-winded reiteration of its point, saying that even if it were to poke at provisions of the ACA individually, text and precedent would be reinforced.
  • It finds that upholding the ACA in the absence of the Individual Mandate would change the “effect” of the ACA “as a whole.”
  • If the mandate falls, and especially if the pre-existing condition provisions fall [remember, that hasn’t happened yet; that’s not even the focus of this case], upholding subsidies and exchanges would “transform the ACA into a law that subsidizes the kinds of discriminatory products Congress sought to abolish at, presumably, the re-inflated prices it sought to suppress.” [To me this just reads as: healthcare would return to the way it was prior to the ACA.]
  • The Court again beats on the drum of the 2010 Congressional intent – the Individual Mandate “is essential to creating effective health insurance markets that do not require underwriting and eliminate its associated administrative costs.” [What’s interesting to me about this is that, as laid out by this Court above, there were more goals to the ACA than creating this specific kind of health insurance market – see my list in the very first section of this summary regarding the ACA. The Court just kind of ignores all of that here and frames the ACA in a very narrow way.]
  • “In sum, the Individual Mandate ‘is so interwoven with [the ACA’s] regulations that they cannot be separated. None of them can stand.’” [Also, note that the Court is quoting a 1922 case about a prohibitive tax on futures contracts for grain and filling it in with “the ACA” to make it work here.]
  • From page 50 to 52, the Court goes BACK through 2010 Congress and again leans on Wallace (the 1922 case). Feel free to read.

3. The Intent of the 2017 Congress [HERE we go…oh wait]

  • The Intervenor Defendants argued that because Congress only eliminated the shared-responsibility payment but left everything else about the ACA intact, the 2017 Congress intended to preserve the balance of the ACA.
  • The Court responds with “But consider what Congress did not do in 2017 – or ever.” Here, it asserts that because the 2017 Congress did not repeal the mandate, it clearly recognized that the Individual Mandate was essential to the ACA. [Okay, pause. Has this judge not been paying attention to Congress over the past couple of years? Where it was regularly insisting that it wanted to throw-out the Individual Mandate? In fact, Congress absolutely meant to get rid of the mandate – and that’s exactly what it did when it eliminated the shared-responsibly payment that gave it teeth.]
  • “The Court finds the 2017 Congress had no intent with respect to the Individual Mandate’s severability. But even if it did, the Court would find that ‘here we know exactly what Congress intended based on what Congress actually did.’” [Yes, it kneecapped the mandate, effectively removing it from the ACA…]

4. Severability Conclusion

  • [Say it with me now] “The Court finds the Individual Mandate ‘is essential to’ and inseverable from ‘the other provisions of’ the ACA.”

V. Conclusion

  • “For the reasons stated above, the Court grants Plaintiffs partial summary judgment and declares the Individual Mandate . . . UNCONSTITUTIONAL. Further, the Court declares the remaining provisions of the ACA . . . are INSEVERABLE and therefore INVALID. The Court GRANTS Plaintiffs’ claim for declaratory relief in Count I of the Amended Complain.”

Masterpiece Cakeshop, LTD, v. Colorado Civil Rights Comm’n – A Slapdash Summary of the Court’s Opinion in a Very Long Wall of Text


The Decision in the finest of PDF formats


Colorado cake shop owner refused to bake a wedding cake for a gay couple getting married – at the time, Colorado did not recognize gay marriage – but offered to sell the couple a different kind of baked good, like a birthday cake.

The couple filed a charge with the Colorado Civil Rights Commission pursuant to the Colorado Anti-Discrimination Act/ The CADA prohibits discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.”

Under CADA, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the Civil Rights Commission for review.

An Administrative Law Judge (ALJ) ruled in the couple’s favor, rejecting the baker’s First Amendment claims, chiefly that requiring him to bake a cake for a same-sex wedding would (1) violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and (2) violate his free exercise of religion.

Colorado Court of Appeals affirmed, the Supreme Court disagreed and held that the Commission’s action in the case violated the Free Exercise Clause.

My take? This may have been a poor test case, given the state of Colorado law at the time and other findings of the Colorado Civil Rights Commission. (E.g., same-sex marriage was prohibited under Colorado law and state law at the time allowed business owners to refuse to create messages they felt were offensive.) My additional take? While not wildly off base (imo, the Opinion makes some fair points), the Majority was reaching to find this outcome. Unsurprisingly, I’m more or less with Ginsburg on this one.

Worth noting: Justice Kennedy wrote the opinion, Justices Roberts, Breyer, Alito, Kagan, and Gorsuch joined. Kagan filed a concurring opinion in which Breyer joined. Gorsuch filed a concurring opinion in which Alito joined. Thomas filed an opinion concurring in part and concurring in judgment, in which Gorsuch joined. Justices Ginsburg and Sotomayor dissented (Ginsburg wrote, Sotomayor joined).

REALLY IMPORTANT THING TO KEEP IN MIND: The Court held that the actions of the Colorado Civil Rights Commission violated the Free Exercise Clause. That is what the Court held. The Court did not hold that the baker was right or wrong. The Court did not address the baker except as the baker was connected to the Commission. The Court did not hold that Colorado’s Anti-Discrimination Act was unconstitutional. Instead, it focused on the comportment of the Commission when dealing with this matter. [According to the Court] the Commission behaved unconstitutionally. This is a pretty narrow opinion.

The TL;DR here is that the Colorado government (in the form of the Commission) inserted its own views on what constitutes offensive and what does not, and those views (the government’s subjective view that religion as a basis for refusing to bake a cake is not good enough where “feeling offended” by a message is good enough) violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.

As the ACLU said: “The Supreme Court ruled 7-2 this morning to reverse the decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. However, the Court did NOT rule that the Constitution gives a right to discriminate. It only ruled Colorado’s complaint process was flawed.”


At least two primary principles to reconcile: (1) “The authority of a State and its government entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek good or services.” (2) “The right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment.” [FYI, the reason you have federal constitutional rights recognized by your state’s government is because they were applied to the states through the Fourteenth Amendment.]

The Court recognizes that this case is an application of constitutional freedoms in new contexts. E.g., cake decorating as freedom of speech.

The Court also immediately points to the importance of the DEGREE of refusal of service on the part of the baker: “If a baker refused to design a special cake with words or images celebrating the marriage – for instance, a cake showing words with religious meaning – that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference.”

The Court felt that the baker’s (Jack Phillips) reason and motive for refusing to bake the wedding cake were “based on his sincere religious beliefs and convictions.”(Rather than, say, being an asshole.) (Important finding for ultimate outcome of the case.)

Other important thing worth noting, which I think has not made it into mainstream news coverage, Phillips told the couple (Charlie Craig and Dave Mullins), “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Phillips didn’t refuse to serve Craig and Mullins altogether. He said he wouldn’t make them a wedding cake; other baked goods were fair game. At the time, same-sex marriage was prohibited under Colorado law, and Phillips also cited to this as a reason for refusing to bake a wedding cake for the couple.

As mentioned above, Colorado has an Anti-Discrimination Act which states in relevant part: “It is a discriminatory practice and unlawful for a per­son, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital sta­tus, national origin, or ancestry, the full and equal en­joyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public ac­commodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017).

“Public accommodation” is defined broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1).

The Act also created the Commission that heard this matter following the ALJ and before the Colorado Court of Appeals.

[There’s a lot of relevant and worth-reading background in the Opinion, but I’m not going to put it all in here because it would be way too much and this is already too much, but you should go and read the Opinion. It’s only 56 pages long – the whole thing, including concurrences and dissents – which is SHORT by SCOTUS opinion standards.]


The Court sort of sets up a balancing test in the first section of its analysis, recognizing that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity or worth,” but that “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” However, “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

[They never really come back to this. Honestly, this Opinion is a bit loose.]

TL;DR: Gay people’s rights must be protected. Religious people’s rights must also be protected. Religious people’s rights are NOT protected if they are using those “rights” to deny people protected by law equal access to goods and services.

But anyway, that’s the rule of thumb here. [That never really gets analyzed fully.]


There’s also a balance when it comes to weddings and speech, specifically. The Court recognizes that a member of the clergy who objects to gay marriage on religious and moral grounds can’t be compelled to perform the ceremony without denying his or her right to the free exercise of religion. The Constitution would recognize such a refusal as a protected exercise of religion and gay persons could likely accept this without a serious diminishment to their own dignity and worth. [At this point I’m thinking, “I’m with you Kennedy, where do you take that hard left turn??” and also “But there’s a really big difference between acting in your capacity as a religious figure and acting in your capacity as a purveyor of public goods and services.”]

This goes on. Court recognizes that this is a confined exception to some degree because otherwise there would be a long list of persons who provide goods and services for marriages and weddings who might refuse to do so for gay persons, thereby resulting “in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” And that would be wrong.

The Court also recognizes that the Colorado law’s protection of gay persons is unexceptional (i.e., lots of states protect gay people and that is a-ok and constitutional!). But then we start getting to the rub.

The Court says “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.” THEN it remarks on the Petitioner’s (Phillips’) concession that if Phillips had refused to sell ANY goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under existing precedents that the denial of goods and services went beyond any protected rights of a baker. [What you’ll see between the Majority and the Dissent is framing narrowly vs. broadly. The Majority sees “baked goods” with “wedding cakes” as a small subset. The Dissent sees this as being about “wedding cakes” on the whole and an outright refusal to sell ANY wedding cake to a specific group of people.]

Ah, but according to the Court this is a just a subset issue. Phillips did not make a blanket refusal to sell anything at all to Craig and Mullions. And this, to the Court, makes all the difference in the world.

Phillips had clever lawyers who saw the merit in making an argument about free speech as it related to artistic creation in the form of a cake. The Court LOVED this and really grabbed on to it, saying “the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs.”

The Court also noted that the legal context in Colorado at the time was somewhat unsettled: Colorado did not recognize the validity of gay marriages performed in its own state, and found that this gave some force to the argument that Phillips was not unreasonable in thinking it was lawful to decline to take an action he saw as an expression of support for something that was contrary to his own religious views, especially as his refusal was limited to creating and expressing a message in support of gay marriage (a wedding cake).

Additionally, as I previously mentioned above, Colorado law protected storekeepers’ decision to decline to create specific messages that the storekeeper considered offensive. The Court noted this in the Opinion as well. AND AGAIN, emphasized the need for balance: “[A]ny decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs say­ing “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.” [Again, I’m thinking, “But this guy said ‘no wedding cakes for gay people’ which is kind of the same thing.”]

As the Court saw it, the Commission screwed up when it came to Phillips because it failed to be both neutral and respectful in the consideration of his claims. Instead, the Commission – according to the Court – was hostile. [And I think the Court is partially correct (at least as far as it paints the record – it cites to the record from the proceedings and the Commission was pretty…not neutral. For example: Commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere; supposedly made implications that religious beliefs and persons are less than fully welcome in the Colorado business community, etc.]

I think Kennedy was stretching the hostility portion a bit far, though, tbh. I think the Commission probably needed to reign it in, but I’m not sure they were as patently offensive as Kennedy sets out to paint them. For example, a commissioner pointed out that religion has often been used as a rhetorical device to authorize and rationalize discriminatory acts and Kennedy went off in a highly personalized way and characterized this statement as being a direct attack at Phillips, which is not at all how I interpreted it. Now, the Court didn’t quote all of the comments (which immediately made me suspicious), so who knows whether they were more or less offensive than characterized by the Court, but I’d imagine if they were really so heinous, the Court would have wanted to include direct quotes. Just my $0.02. (When I was clerking I ADORED direct quotes that made my point – much better than a summary or interpretation.)

The Court also points out discrepancy between the Commission’s commentary about Phillips versus how it handled bakers who refused service on the basis of statements they deemed derogatory. In the latter cases, the Commission was [apparently] deferential to the baker in terms of accepting the baker’s perspective as truly held (as opposed to a stand-in for being a bigot, presumably).

Anyway, Kennedy spends A LOT of time on this hostility angle – you can get in there and read it yourself if you’re interested. The TL;DR is that the Court feels that the Commission treated conscience-based objections to baking commissions VERY differently depending on what they were (“that’s offensive and derogatory towards gay people” – okay vs. “it is against my religion to bake something that expresses support for gay marriage” – not okay). Put another way, in the Phillips case, the Commission said that the message of/on the wedding cake would be attributed to the customers, not to the baker, but apparently it made no such argument regarding the other complaints about bakeries. [I should say I was kind of on board with Kennedy’s assessment of all of this until I read the dissent, which actually discussed the other situations regarding baking commissions – always look for the other side, guys, even if you think you’re convinced of something!]

Then the Court gets to the constitutional stuff (honestly, it’s a shockingly tiny portion of the overall Opinion. I feel like Kennedy was on his way out to the beach or something). In order to adhere to the Free Exercise Clause of the Constitution, a state government “cannot impose regulations that are hostile to religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices.” The Court thinks the Commission did just that when it implicitly (perhaps explicitly) outwardly doubted the legitimacy of Phillips’ religious beliefs.

The Court held:

“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. How­ever later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

“The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re­solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

But you always gotta read the dissent – because that’s how you get the rest of a story or signs of an untrustworthy narrator. I’m not going to do an entire write-up on Ginsburg, but I’m dropping some extra info and you can read the whole thing when you have time.

Background on the customer who went to the other bakeries with which the Commission sided:

William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He]requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . . ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’[Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ”

Ginsburg points out that Craig and Mullins requested no imagery or verbiage on their cake. She also points out that the bakeries would have refused such a request as Jack’s from anyone who made it – he wasn’t targeted because he was Christian. To support this, Ginsburg cites to evidence that the bakeries who refused Jack regularly made other cakes with Christina imagery and messages. Those same bakeries had also refused to produce cakes that demeaned individuals protected by Colorado’s anti-discrimination law. In shorthand, those bakeries refused to produce a certain message, regardless of who requested it. Phillips refused to produce a wedding cake specifically BECAUSE it was requested by two gay men. He had no problem producing wedding cakes otherwise and selling them to others.

Ginsburg writes, “The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Chris­tian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer.”

Ginsburg also questions the Majority’s statement of a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all” when, in fact, the situation at hand WAS a refusal to sell any cake at all. (One has to wonder if Craig and Mullins had changed their order to, say, a three-tiered “birthday” cake with no words or images on it, whether the baker would have complied. I suspect not.)

The Latest in Lawsuits: Secrecy and Hijacking

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A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)

CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.

CREW and NSA have two main challenges in their suit.

First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.

Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).

Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.

Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.

CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.

Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.

Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”

Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”

This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.

By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.

Plaintiffs have a laundry list of facts that they have included in their Complaint.

Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:

  • The Executive Office’s issuance of gag orders on federal agencies.
  • Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
  • Making the White House visitor logs private.
  • Trump’s various claims that he has continued his private sector practice of taping conversations.
  • Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
  • The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
  • Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
  • Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
  • There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
  • Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
  • Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
  • Trump uses his personal Twitter account, not the President’s account.
  • The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
  • Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)

The Plaintffs’ claims are as follows:

  1. For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
  2. For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
  3. For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
  4. For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law

They want the court to:

  1. Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
  2. Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
  3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
  4. Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
  5. Grant such other and further relief as the Court may deem just and proper.


Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.


Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue

(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)

Presidential Records Act

The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.

The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.

“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”

“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.

There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.

We’re not done yet.

After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.

(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)

Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).

It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).

That Presidential Twitter account, though.

One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.

The Federal Records Act

The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.

Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.

The Administrative Procedure Act

Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.

Freedom of Information Act

FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.

Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.

The Constitution

At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)

We have a media problem. And a politics problem.


Last night, I read an article on about the dual narratives of the “right wing” vs. “liberal” medias, respectively, and it got me thinking about the news problem this country has. And not just a news problem, but an “us vs. them” perspective on telling stories about what’s going on. I intentionally chose the word “stories” because no matter which news source you’re looking at, chances are you’re getting a narrative that’s been focused through a particular lens. Certainly some sources do a better job than others of cutting out the editorializing BS and painting a more balanced picture, but none is perfect.

I say this as someone who considers herself liberal on the political spectrum, but who abhors the institutions of both the Democratic Party and the Republican Party.  (Just going to get that out of the way first thing – I’m pretty left. I actually hate that the state in which I live has closed primaries because I greatly dislike having to be registered as a member of a particular party in order to participate in all levels of democracy, but that’s another – but somewhat related – issue entirely.) I also say this as someone who has been trained as a lawyer and recognizes the intense power of narrative in convincing an audience (judge or jury) and who similarly recognizes the need to be deeply skeptical of taking almost anything at face value. I think we should probe any news story we read, and check and double-check its claims to the best of our ability. That’s time consuming, exhausting, and a pain in the rear, yes. But it is necessary.

After I posted the above-linked article on my Facebook page, I received a comment that resonated with me:

“A very graphic demonstration of how consensus, not words, creates meaning. Mainstream media and the putatively “liberal” Democratic party have been sailing along for a long time as though all their statements were true and all their elisions of fact were appropriate. Anybody not a member of those groups could see the bias toward self-justification in all they did. Now the shoe is on the other foot. Different information is deemed significant and different facts are elided. Maybe more important, the judgments about context are contradictory. On the one hand, Clinton’s email lapses with classified info are forgivable; on the other, Trump’s mentioning classified info to Russians is. If you believe Clinton is a “good guy,” you believe the former; if you believe Trump is a “good guy,” you believe the latter. The only way OUT is for each side to respond, directly and thoroughly, to the other side’s reports, to what is done, not to what is said. I have yet to see that happen.”

“The judgments about context are contradictory.” There’s so much hypocrisy in this country that we are drowning, but we only see it in the people with whom we disagree. And the voices of reason in the middle keep getting drowned out because their stance isn’t “sexy” enough, isn’t necessarily aggressive enough, and doesn’t spark the wild “us vs. them” fervor that is apparently as critical to us these days as staying hydrated. That middle stance is also uncomfortable because it is a stance that tends to make most people feel defensive about their views, and nobody especially enjoys that.

It is possible to be critical from a single rooted point and to avoid logical leaps and somersaults to justify contradictions. For example:

Objectively, I think Hillary Clinton was guilty of a very big lapse of judgment with respect to her emails, private server, etc. I don’t think there’s an excuse for someone of her intelligence, at her level, to do what she did. I hold her to a very high standard (no, not because she is a woman, but because she held a prominent, powerful position, with a lot of responsibility. Seriously, ask me about the standards to which I hold the men in Congress. Most are failing miserably). Regardless of whether anything important got out, the decision to flout protocol was a poor one. (And I don’t care if every other politician ever has done it. It doesn’t make it less bad – it just means more people have done a bad thing.)

Objectively, I think Donald Trump is guilty of releasing all kinds of classified information to the Russians (and maybe even guilty of treason, although no one really knows what to do with the treason law in this country because it’s been pulled out and dusted off so infrequently), and I think he’s an egotistical buffoon of enormous proportions. I think he’s doing illegal things every chance he gets. He’s a compulsive liar.

I don’t think I am the only person out there (in fact, I know I am not) who holds both of these views simultaneously. But the media is not publishing stories like this that contain, as their center, an objective guidepost. E.g., breaking protocol, leaking information, is bad. Both Clinton and Trump have done this. Ergo, both have done bad things. (I shouldn’t have to say this, but saying both have done bad things does not mean that both levels of bad are exactly the same.) The media is not universally critical.

Instead, everything gets twisted through weird rationalizations that ultimately lead to spin that would make anyone quirk an eyebrow in disbelief. It is beyond frustrating to me. Frankly, I don’t really understand how or why we’ve gotten to this place. I suppose some of it is because it happened relatively slowly and we didn’t have an administration as completely batshit bonkers as this one to really rev up the engines and shine a light on our narrative problem. But now that it’s spotlit, I think we’ve got to come together and figure out how to fight it.

One thing that needs to be done – as pointed out in the comment – is for each side to fully address the assertions of the other. Just like in court. One should never, ever ignore an allegation at risk of having it be taken as truth. In this way, both the right and left media are in cahoots. Neither challenges the other. Instead, they each go off, parallel to one another, and anyone who doesn’t start trying to unpack the contents of each and has just chosen to be allied with a particular source, can very easily avoid ever hearing anything published by a source that he or she doesn’t read. And now it’s gotten so bad and there’s so much misinformation floating around that having those challenging discussions is going to be terribly difficult.

Right now, we – as the consumers of news – are forced into the position of addressing each assertion (which, as I pointed out above, is time consuming, exhausting, and a pain in the rear). And that should not be our job. That is *supposed* to be a journalist’s job. Instead, we have parrots. It makes me especially angry because I think it’s lazy and I think we are all being taken advantage of. It is a privilege to have the spare time to unravel a given news story and now our news sources are trying to (at best) cut corners or (at worst) manipulate us. And they know they won’t be held culpable because NO ONE HAS THE TIME TO DIG THROUGH EVERYTHING WITH A FINE TOOTH COMB.

I try to go through things with a fine tooth comb when I can and I still get things wrong. And I’m pretty privileged as far as finding the spare time to do this goes.

We should all be mad about the way media is failing us.

We should also all be horribly angry with both of our political parties. Not even because they are hypocrites of the highest order, but because they (1) don’t care about any of us, and (2) might even actually hate democracy (and prefer that all power be consolidated unto themselves).

Here’s an article that gets at what I’m talking about: The Gospel According to Mitch by Maximillian Alvarez. It’s about Mitch McConnell, but gets to the heart of our politics problem (but it’s also good reading if you love to hate Mitch).

These meatheads are playing a game and they are using us as their pawns to be manipulated. I think many of us recognize this, but…we actually need to absorb it. Because if we “know” it but don’t act any differently based on this information, then it doesn’t really matter that we know because we’re still complicit with our “elected” representatives – who we don’t even like.

Our elected officials are showing up for their own interests. Not ours. “There is power, and there are obstacles to attaining power. These, and nothing else, are the coordinates of politics.” That is the root of the matter. Humanity, morality, right vs. wrong, objectivity, these things don’t matter. All that matters is power and the things that stand in the way to achieving this. And guess what? A lot of what stands in the way of achieving power are the pesky almost 324 million of us citizens who are charged with electing those in power. So what does that mean? Our political parties have a vested interest in figuring out how to manipulate the heck out of us. BOTH parties have this interest. They employ different tactics, but I would argue the end game is the same: consolidation of power at least cost/highest gain to the top percenters of this country.

As Alvarez writes in the article: “We are educated by the fantasy that our politicians are true public servants. Whether by their own honest intention or the simple limits of their job, their power is held in check as a public trust. In this view, political leaders are employed to serve their constituents, but they may be corrupted by power along the way to achieving their goals. In reality, though, power is the only real goal remaining in our evermore nihilistic national politics.”

Our political system currently operates to preserve the pecking order, this consolidation of power, the wealth. It does not operate for us and it is not, at this point, even truly operated by us. Look at how we are forced into a two party system that leaves most of the population wholly disillusioned (and even refusing to vote). How often have we said or heard that our vote is not being cast “for” a candidate but rather, “against” the opposing candidate? How often have we joked about “holding our nose and voting.” Stop and think about that for a minute. That’s insane. That isn’t democracy. That’s being forced into something we don’t want and that’s exactly how our political system likes it.

Chris Hedges wrote a terrific piece on Trump being a symptom and not the problem in our current political state. In it, he points out the blowback that occurred following the “excessive democracy” of the 1960s. The high level of political involvement and general pushiness of the populace scared the heck out of our would-be rulers and they began working to dismantle the true functionality of our democracy. Hedges writes that these political elites “locked the citizens out of government. And by doing so they made sure that power shifted into the hands of the enemies of the open society.” He’s right. Our power, our true power as a voting public is sorely limited. It has just enough trappings of democracy clinging to it that we aren’t all out rioting in the streets. Instead, we merely grumble to one another and talk about holding our noses and voting.


And the media (the reason I started this post in the first place) is furthering this agenda, whether intentionally or not (although, I’d err on the side of intent, given the identity of the owners of our media sources). By refusing to engage with one another, refusing to challenge competing narratives, they effectively splinter the population and keep us in two encampments who, to some degree, lack the tools or ability to engage with one another. The media cherry picks facts to support its context (or twists facts to match a desired story, or just makes implications that lead the absorbing public to one conclusion or another). By running parallel to one another and never crossing, our media sources cement the existence of our political parties and increase the difficulty for the general public of examining them critically and taking note of their misplaced priorities and manipulations.

So, dear reader, help me think up a name for the new political party we need. The one that seeks to get the heart of the matter, that tries to cut through BS to find the fact, that avoids being defensive in favor of listening to the people. The party that brings back that “excessive democracy” of the 1960s that so terrified the political elite. The party that says “shut up, now you listen to US.” What do we call it?

In which the media oversimplifies for the sake of clicks


On Wednesday, three Code Pink activists were found guilty by a jury of their peers for the alleged disruption of Jeff Session’s confirmation hearing. For this conviction, they face jail time (although it sounds as though they likely won’t ultimately be slapped with prison time at their sentencing hearing, which is in June). But here’s the thing, no one was convicted for laughing, i.e., laughter isn’t the chargeable offense. All three were charged with disorderly conduct and parading or demonstrating within Capitol buildings. This might sound like nitpicky semantics (especially because laughter set the ball in motion and, in my opinion, I think the decision to arrest these three activists at the confirmation hearing was an absurd waste of energy and resources and also indicative of this administration’s severely misplaced priorities), but these nitpicky distinctions really matter when it comes to understanding what’s happening in this country right now. (Because “charged with laughing” sounds like more easily overcome buffoonery, while “charged with existent laws that were arguably puffed up and maybe misapplied” is a little more insidious. I don’t know about you, but the latter is scarier to me.)

I disagree with the actions of the Capitol Police, the decision to prosecute, and the outcome, but I also take issue with the media’s presentation of the issue. Clickbait headlines really don’t help us pull out of our downward spiral into misinformation and half stories.

Desiree Fairooz is the infamous laugher, of course, who was hauled out of the confirmation hearing shortly after giggling/gasping at the assertion that Mr. Session’s record of “treating all Americans equally under the law is clear and well-documented.” Ms. Fairooz and her two compatriots were subsequently charged with (1) disorderly conduct and (2) parading or demonstrating on capitol grounds.

Now, I had to do a little digging (and I’m still not entirely convinced I’ve landed on the right laws) because news sources, for whatever reason, are not interested in linking to either law or court documents (which, as a lawyer, is something that has begun to frustrate me to no end when sifting through articles), but I believe that laws in play here are D.C. Code § 22-1321(b) and/or (c-1) – Disorderly Conduct, and D.C. Code § 10-503.16(b)(4) and/or (7) – Unlawful Conduct. And don’t quote me on this because I’m extrapolating based on the paltry amount of fundamental information provided by the media in its reporting. For example, I don’t actually know whether the activists were charged under D.C. Code or Federal law. (I did find the court records – – but, alas, parties’ filings are generally not freely available.)

ANYWAY, in relevant part, the Disorderly Conduct law reads:

(b) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct, with the intent and effect of impeding or disrupting the orderly conduct of a lawful public gathering, or of a congregation of people engaged in any religious service or in worship, a funeral, or similar proceeding.

(c-1) It is unlawful for a person to engage in loud, threatening, or abusive language, or disruptive conduct in a public building with the intent and effect of impeding or disrupting the orderly conduct of business in that public building.

Basically: A person can’t head into a public event or a public building with the intent to disrupt it by getting very loud, hurling abusive language, making threats, or acting in such a way as to be disruptive.

The relevant bit of the Unlawful Conduct law reads:

(b) It shall be unlawful for any person or group of persons willfully and knowingly:

(4) To utter loud, threatening, or abusive language, or to engage in any disorderly or disruptive conduct, at any place upon the United States Capitol Grounds or within any of the Capitol Buildings with intent to impede, disrupt, or disturb the orderly conduct of any session of the Congress or either House thereof, or the orderly conduct within any such building of any hearing before, or any deliberations of, any committee or subcommittee of the Congress or either House thereof;

(7) To parade, demonstrate, or picket within any of the Capitol Buildings.

Basically: A person can’t make loud threats or use loud, abusive language, or behave in a disorderly or disruptive way in order to throw the usual Congressional proceedings off the rails or into disarray. Nor can someone hold a protest within any of the Capitol buildings.

Both laws require that an individual be acting with the purpose of causing the disruption. Someone whose actions or words have an unintentional disruptive effect are not in violation of the law (or should not be found to have been in violation of the law)

Honestly, in reading these laws, I’m a little surprised that the Ms. Fairooz’s attorney wasn’t able to keep the jury from reaching a guilty verdict with respect to disorderly conduct. This is especially the case given that at least one reporter who was present at the hearing said that the laugh was not loud, nor did it disrupt Senator Shelby’s speech. But then again, when asked, some of the jurors said that it wasn’t the laugh/gasp that led them to reach a guilty verdict, but Ms. Fairooz’s behavior after being confronted by the Capitol Police. She allegedly grew loud and wanted to know why she was being arrested (as most of us would want to know, I suspect – one could argue that the real disturbance came from the rookie, maybe-arrest-happy, Capitol Police officer who decided that the start of a hearing was a good time to make her very first ever arrest, rather than from Ms. Fairooz, but I digress).

Obviously, without witness testimony, I can’t tell what happened, and most of the news I’ve seen apparently also lacks that information. Personally? I think there’s an intent issue. The Disorderly Conduct law requires that the defendant have acted with the “intent and effect of impeding or disrupting” whatever is happening. I would have thought Ms. Fairooz’s attorney could have made mincemeat of the prosecuting attorney’s argument for intent (ok, maybe that’s a bit strongly put, but I think he could have made a good argument as to why the intent was not there). And without the requisite intent, as previously mentioned, there is not a violation of the law.

I will say, though, that from a legal standpoint, the three activists were probably violating the ban on demonstrating/picketing within any of the Capitol Buildings. The three defendants were dressed up and, more importantly, carried signs – they were fairly clearly demonstrating Mr. Session’s confirmation. Ms. Fairooz had a banner that she unfurled.

I’m not going to get into a long legal analysis at the moment because (1) I don’t have the time right now to dig into caselaw to figure out the legal environment (although, if I do it later and find something interesting, I’ll update) and (2) I primarily wanted to draw attention to the media’s mislabeling of what was actually going on. The case isn’t just a matter of “she laughed, she’s guilty, end of story.” That makes for great headlines, but it’s a gross oversimplification of the law. I also think it overlooks what’s actually (to me) the most disturbing part of this: the government’s steady push to crackdown on speech and its willingness to twist existent laws to its own ends. We’ve seen it with respect to Trump’s Executive Orders and now we’re seeing it with respect to civil disobedience. I am also left wondering (and concerned) about the impact of this twisting on jurors, who hold no legal training and who may be less attuned to shady maneuverings. The government didn’t go, “You laughed and offended us, therefore you’re going to jail.” Instead, the government said, “We won’t tolerate difference of opinion, here’s a couple of laws that are on the books, now we’ll twist them and their intent and misapply them to a context in order to paint a picture to non-legally trained citizens of a violation that probably didn’t exist.”

To be fair, the United States’ justice system has been botched for a very, very long time, but now we’re seeing those cracks running deeper into our Constitution, and it’s very unsettling. I just wish the media would let up on the clickbait and set their journalists to picking apart the real stories. Here, that’s the government’s arguable perversion of the law to shutdown dissent.


Spark Notes: Trump v. Judge Orrick (Or Trump’s Newest Loss in Federal Court)


Keep shutting it down, Federal Courts, keep shutting it down.

As I’m sure you all know by this point (because typing up summaries puts me at a severe time disadvantage, it seems – I clearly need to make friends with all the clerks), earlier today, Judge William H. Orrick “lolnoped” Trump’s executive order pertaining to sanctuary cities. And he did it in 49 pages, so it’s clear that Trump really got his goat with this kingly “I SHALL TAKE ALL THE MONIES FROM YOU, YOU PLEBES” mentality.

QUICK AND DIRTY (with more in-depth summary following)

(Also, here’s the full opinion: and here’s the executive order in question:

Essentially, two California counties and a city challenged Executive Order 13768 (specifically Section 9), “Enhancing Public Safety in the Interior of the United States.” The Order outlines a number of immigration enforcement policies and also purports to yank funds to the extent that funds can be yanked (without otherwise violating other federal laws…) from sanctuary cities. Additionally, the Order establishes a procedure that makes sanctuary cities ineligible to receive federal grants.

Well, the counties of Santa Clara and San Francisco, and the city of San Francisco were stirred up and challenged Section 9 of the Executive Order as facially unconstitutional [i.e. no digging needs to be done to turn up the unconstitutional stuff] and have also brought motions for a preliminary injunction seeking to enjoin its enforcement [i.e., slam the big red “STOP” button].

The counties-plus-a-city had four main arguments as to why the EO shouldn’t be enforced and I’ll list them:

(1) It violates the separation of powers doctrine in the Constitution because Trump’s trying to improperly wield congressional spending powers (Executive can’t do the job of the legislature or judiciary and vice versa);

(2) It’s way, way, way overbroad and equally as coercive – to that point that even IF the President got to have spending powers, the Order would still exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions (could fill a class on this, but basically, the federal government can’t come in and force local governments to enforce federal mandates. For example, a case about the Brady law that went to the Supreme Court resulted in the Supreme Court saying, “no, fed. gov’t, you can’t make local officials enforce your federal law – you need your own people to do it.” [Also, THIS IS A GROSS SIMPLIFICATION OF THE DOCTRINE. Look it up for a real summary!.]).

(3) Not only is it obscenely broad and coercive, it’s wildly vague and adrift without standards to the point that it violates the Due Process Clause of the 5th Amendment, and is void for its vagueness.

(4) It seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, which means that it violates the procedural due process requirements of the 5th Amendment as well.

The Government, in true Government form (at least as of late), sidesteps the counties-plus-a-city’s arguments and instead makes ye olde tired standby argument of “THEY AREN’T ALLOWED TO SUE US” aka that the counties-plus-a-city lack standing. The Governments says that this is because the EO didn’t change any existing law and the counties-plus-a-city aren’t “sanctuary jurisdictions” pursuant to the Order (aka “they ain’t got skin in the game, can’t complain). In even truer Government form, they started going for the whacked out arguments next and claimed that the EO is actually just an exercise of the President’s “bully pulpit” and was meant to highlight a changed approach to immigration enforcement. (Which sounds a lot like the Government is trying to get out of having their shenanigans shut down by saying “we didn’t want this to do anything, anyway!”) The Government further emphasizes this position by essentially saying that the Order is just a repetition of already existent law and ran backwards from the possibility that the EO was unconstitutional by firmly asserting that the EO certainly couldn’t affect any of the billions of dollars in federal funds that the counties-plus-a-city receive every year beyond three federal grants in DOJ and DHS that have conditions requiring compliance with immigration law.

Judge Orrick is like, “Great work, guys, glad you remember Con Law 101 and that the Order can’t do anything more than enforce whatever law is already on the books” to whatever poor schmuck Government lawyers had to take this thing to oral argument.

Buuutttttt Judge Orrick also points out that the section of the EO in question was apparently written someone without that Con Law 101 understanding because its plain language “attempts to reach all federal grants, not merely the three mentioned at the hearing.” Plus, thanks to President Tweets-a-lot and Attorney General Missed-the-part-where-Hawaii-is-a-state, public comments have basically undermined and eroded any semblance of narrow scope. President Tweets-a-lot called it a “weapon” to used against jurisdictions that disagree with his preferred policies of immigration enforcement (and good ol’ Sean Spicer was quick to back him up). And Attorney General Missed-the-part-where-Hawaii-is-a-state got very self-important and warned that noncompliant jurisdiction would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants” and the “claw back” (literally said claw back, that’s Sessions, not the Court) of any funds previously awarded. So thanks to the EO’s language and the loudmouths in government, the Court doesn’t think the section is “reasonably susceptible to the new, narrow interpretation offered at the hearing.” (Note: this “new, narrow interpretation” only surfaced for the first time AT the hearing, suggesting the poor Government lawyers knew they were doomed.)

Judge throws in a line about the implausibility of the Government’s “new interpretation” for good measure.

However, given this “new interpretation” the Government and the counties-plus-a-city appeared to be in rough agreement about the EO’s constitutional limitations. This wasn’t really helpful, however, because there are still potential Constitutional issues. Under the Constitution, Congress gets the spending power, not the President, so the EO can’t constitutionally place new conditions on federal funds. The Tenth Amendment mandates that any conditions on federal funds be TOTALLY CLEAR and also made in a timely fashion. They also have to have some relation to the funds at issue and the incentive can’t be coercive. I.e., federal funding that has zilch to do with immigration enforcement can’t get yanked just because El Jefe disapproves of a jurisdiction’s immigration strategy.

The Court found that the counties-plus-a-city succeeded in their motions. They demonstrated that they were likely to face immediate irreparable harm if they didn’t get their injunction, that the were likely succeed on the merits of the case (basically, that their four arguments held water like a rugged camelback), and that the balance of harms and public interest weighed in their favor. Therefore, the Court granted the preliminary injunction.


Trump issued Executive Order 13768 on January 25, 2017. It’s very puffed-up with self-righteous language “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United State.” (Anyone else picturing little green people?) It also states that the policy of the executive branch is to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Then Section 9 gets into more detail (and also includes the establishment of that public “comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens” that we all heard so much about back in January. It’s so gross). More on point, Section 9 refers to Section 1373 of Chapter 8 of the US Code, which prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE.

The Court gets into a lot of detail (ok some) with respect to this as well as with respect to civil detainer requests (which is what ICE civil detainers make when they want a local law enforcement agency to keep someone locked up for up to 48 hours after that person’s scheduled release – several courts have held this to be in violation of the 4th Amendment), but I’m not digging into all of this here, so feel free to read-up elsewhere.

The counties-plus-a-city all have policies and practices with respect to federal immigration enforcement and those policies and practices are at odds with the EO. Basically, they’re trying to create trust and respect between law enforcement and residents, foster cooperation, and ensure community security” and the EO…isn’t. The counties-plus-a-city also all receive federal funding. Santa Clara got about $1.7 billion in the 2015-16 fiscal year, which made up about 35% of its total revenues. Most of that money goes towards providing residents with essential services. In support of its motion, Santa Clara pointed out that losing any substantial amount of federal funding would result in substantial cutbacks to safety-net programs and would require the county to lay off thousands. San Francisco gets about $1.2 billion from the federal government (out of a $9.6 billion total yearly budget). If it lost a substantial amount of that federal money, residents would be waving good by to medical care, social services, meal programs, and infrastructure maintenance.

After addressing the State of Things, the Court gets into Justiciability (aka Can It Hear This Case?). Government is all “this is not justiciable because the counties-plus-a-city cannot establish an injury-in-fact, which they need to in order to establish standing, AND ALSO these claims aren’t ready to be listened to yet.” Court thinks about it and disagrees. Judge Orrick: “I conclude that the Counties have demonstrated Article III standing to challenge the Executive Order and that their claims are ripe for review.”

Standing (aka concrete and particularized injury that is actual or imminent which is traceable to the defendant and can be fixed by a favorable decision from the court):

The Government persists in insisting no standing because (1) the EO doesn’t change the law, just directs the AG and Secretary to enforce existing law; and (2) the counties-plus-a-city’s claims of injury are not sufficiently “concrete” or “imminent” because they aren’t designated as “sanctuary jurisdictions” and the Government has not withheld any federal funds.

Court: No.

Haha, actually though, Judge Orrick thinks the Government is full of it. To make its first argument, it essentially has to read out ALL THE MEANING from all the words used in the EO. Because the EO *does* change the law. The Court goes into a very detailed analysis of the language in the order and the rules of construction to demonstrate exactly why the Government is so wrong. The Court states, “the defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress as the authority to do – place new conditions on federal funds.” (Basically, the Court is like, “guys, you can’t defend a meaning that can only exist if it exists outside the entire context of the Order and the language of the section itself.) At the end of the day, “the Government’s construction is not reasonable. It requires a complete rewriting of the Order’s language and does not ‘save’ any part of Section 9(a)’s legal effect. There is no doubt that Section 9(a), as written, changes the law.”

The Counties-plus-a-city: We’re allowed and you’re dumb.

The counties-plus-a-city say they absolutely have standing because they have demonstrated a well-founded belief that the EO will be enforced against them.There is a line of cases that allows for “pre-enforcement standing” when a plaintiff can show that it has an intent to engage in course of conduct (arguably with constitutional interest) that is proscribed by statute, and that there is a credible threat of prosecution [of the plaintiff] under the statute. The Government [once again, as is its recent habit] mischaracterizes the law on this and tries to argue that this exception only applies in situations involving criminal penalties or First Amendment issues. Judge Orrick sets it straight though and gives the REST of the relevant case law which establishes that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.”

And, yes, the counties-plus-a-city have pre-enforcement standing because their policies are proscribed by the language of the EO and they are likely to be designated “sanctuary jurisdictions” based on the meaning contained within the EO. Additionally, the Government has already indicated an intent to enforce the EO generally, and against the counties-plus-a-city more specifically. (Remember President Tweets-a-lot’s statements mentioned above?) This isn’t the first time, and likely won’t be the last time, that Trump’s mouth undermines whatever argument the Government is trying to make in court. Trump actually went so far as to threaten California specifically in February. Finally, the counties-plus-a-city’s claims implicate a constitutional interest: the rights of states and local governments to determine their own local policies and enforcement priorities pursuant to the Tenth Amendment. (NO COMMANDEERING ALLOWED.) The counties-plus-a-city all have policies that “reflect local determinations about the best way to promote public health and safety,” which stand in stark contrast to the EO’s assertion that sanctuary jurisdictions are a “public safety threat[].” The fact that they have policies in place and the EO [they argue] seeks to undermine their judgment and compel them to change their policies to enforce the Federal government’s immigration laws implicates a constitutional interest: violation of the Tenth Amendment.

That the counties-plus-a-city are threatened with the loss of federal grants presents an injury in the form of budgetary uncertainty. The Court reminds everyone that a “loss of funds promised under federal law [] satisfies Article III’s standing requirement.” [As a lawyer myself, I can’t imagine what sort of knots all the Federal lawyers are having to tie themselves into – they keep being forced into cases where they are so overtly on the wrong side of the law it leaves an onlooker incredulous.] The counties-plus-a-city need to be able to plan ahead and mitigate potential sudden loss of federal funds. They can’t make decisions without knowing what their monetary future holds. Do they need to cut certain services? Do they need to change local policies? Much of the federal money received is in the form of reimbursements for services already provided. If that money is suddenly cut off, the counties-plus-a-city will face significant debt. TL;DR the counties-plus-a-city adequately demonstrated that budgetary uncertainty of the type threatened by the EO can constitute an injury-in-fact for Article III standing.

Altogether? The counties-plus-a-city meet the requirements for pre-enforcement standing. BOOM. Pack up yo lunch, Government, cause you’re not welcome at this table.

Next, the Court turns to “ripeness” which is basically “is it time for us to listen to this grievance and make a decision?” In legalese: “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” The Government here is going “no, no, no, no” because according to it, lots of Section 9 is dependent on contingent future events, including clarification of terms. (Lol, because they’ve just realized that it’s a mess.) The Government cites a case, Judge Orrick promptly is unconvinced (you know the drill by now). This time, mostly because the Government is being redundantly dumb again and forgetting that “contingent future events” must always be at issue in a pre-enforcement case – before actual enforcement occurs, the enforcement agency must determine what the statute means and to whom it applies. The Court points out that under the Government’s line of reasoning, basically every single pre-enforcement case would be kept out of courts. As far as Judge Orrick is concerned, the counties-plus-a-city’s claims “do not require further factual development, are legal in nature, and are brought against a final Executive Order. They are fit for review.”

The Court concludes that the counties-plus-a-city established standing.

I think that table in that dark, back corner might be open?

Finally, the Court addresses whether the counties-plus-a-city’s are putting forward strong arguments that have a likelihood of success if the case were to go to hearing (because no court should grant an injunction on the basis of a water-in-a-fishnet argument). The Court says yes.

The EO’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles. Further, the EO probably violates at least three of the restrictions on Congress’s spending power. (I mentioned them in the top part – no ambiguity and can’t be imposed after funds have been accepted; nexus between funds at issue and purpose of federal program; no coercion.) The Court then analyzes how and why the EO violates these three restrictions. As far as Judge Orrick is concerned, the EO is about as violative as it could be – weird shadow threats with a who-knows-when implementation timeframe, at risk are ALL THE FEDERAL FUNDS EVERRR; and um, ok, highly coercive (we’ll take away your money, make you cut fundamental services to your citizens, and publicly shame you on our list if you don’t do exactly what we say).

The EO is also probably violative of the Tenth Amendment because (1) it’s trying to compel states and local jurisdictions to enforce a federal regulatory program through coercion; and (2) it’s trying to compel states and local jurisdictions to comply with ICE civil detainers by directing the AG to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” The Court states, “[b]y seeking to compel states and local jurisdictions to honor civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth Amendment’s provisions against conscription.” Basically, the Federal government can incentivize states as much as it wants to get them to voluntarily adopt federal programs, it can’t use methods that are so coercive as to compel, and the EO is attempting to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription.

The EO is way vague. Sort of like when you don’t want to hang out with someone, but you also don’t hate them, so you’re just sort of wishy-washy about the date and time and all the other information one might need to actually hang out. That kind of vague. Under the Fifth Amendment, a law is unconstitutionally vague and void if it fails to be [crystal] clear about what conduct is actually prohibited and exactly how it will be enforced. As far as Judge Orrick is concerned, the EO gets a big fat “x” in both of those boxes. It’s impossible to say exactly what conduct might subject a state or local jurisdiction to enforcement action, it doesn’t define “sanctuary jurisdictions” (ooo, fun fact: back in February, the DHS Secretary himself said that he “do[esn’t] have a clue” how to define “sanctuary city” despite the EO giving him unlimited discretion to make such designations), and who the heck knows what “appropriate enforcement action” means. The Court asks, “What does it mean to ‘hinder’ the enforcement of federal law? What federal law is at issue: immigration laws? All federal laws? The Order offers no clarification.” (Yes, the law is this pedantic and yes, it needs to be.)

Finally, the EO is premised on yanking money willy-nilly with no kind of procedural due process (as required under the Fifth Amendment) whatsoever for that yankage. State and local governments have a legitimate claim of entitlement to congressionally appropriated funds. Those funds are very much like those owed on a contract. The counties-plus-a-city have a legitimate property interest in the federal funds that Congress has already appropriated and that the counties-plus-a-city have accepted. Meanwhile, the EO apparently strives to make the counties-plus-a-city ineligible for their funds through some vague (see above), discretionary and undefined process. The EO has no instructions! No guidance! No process! The Court thinks that the counties-plus-a-city would likely succeed on this claim.

At the end of all of this, the Court also determines that the counties-plus-a-city will suffer both an irreparable harm from budgetary uncertainty and constitutional injury. The Government tried to stick it out with a weird argument about the counties-plus-a-city failing to allege a “deprivation” but rather alleging a violation of constitutional structure. The Court is quick to reject this. First, the Ninth Circuit, which is where this case is unfolding, doesn’t recognize a distinction between personal and structural constitutional rights (seriously, why doesn’t the Government DO ITS HOMEWORK). Second, even if the Court did recognize that distinction, the counties-plus-a-city have alleged a deprivation of their personal constitutional rights – hellooooo Tenth Amendment argument; what is UP Fifth Amendment Due Proces argument.

As the final cherry topper – the counties-plus-a-city hit a full preliminary injunction jackpot when the Court also decides that the balance of harms and public interest weighs in favor of an injunction – because the harms to be suffered by counties-plus-a-city might also be suffered nationwide.



States are cracking down on free speech. I wrote a post about this back in February and included a rundown of free speech (and right to assembly) under the U.S. Constitution. Two months later, WaPo has decided to write an article after the UN issued a statement saying that Americans’ right to protest was at risk under Trump. It’s worth being familiar with your rights. It’s double-worth keeping a close eye on the states. Don’t let them take advantage of the chaotic events unfolding at the federal level.