Tagged: Opinion

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.”

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: https://www.scribd.com/document/346375526/Sanctuary-City-Order and here’s the executive order in question: https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united)

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.


“DAMN, DANIEL!” but directed at that stupendous three-judge panel of the 9th Circuit

HEYO. It was unanimous. Not a single one of the judges thought Trump (okay, actually Bannon-the-ghost-writer) was within his executive power to put our border on lockdown in the way that he did.

“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this… The emergency motion for a stay pending appeal is denied.”

Trump, for his part, got quite bent out of shape and had his usual Twitter tantrum (twittrum?). IN ALL CAPS THOUGH, SO YOU KNOW HE MEANS BUSINESS.


But the Court had its reasoning (and in my novice lawyer opinion, it was darn good reasoning). Here’s a rundown of the opinion (which you can read here):

Court considered several factors:

  1. Whether the government has shown that it is likely to succeed on the merits (because you need to show that your case is probably gonna win in order to be granted a stay – the Government moved for an emergency stay of the enjoined Executive Order. Basically, everyone is just hollering “STOP” from all sides.)
  2. The degree of hardship caused by either the stay or its denial.
  3. The public interest in granting or denying the stay.

Court recognized that it didn’t have a whole lot of information to sift through at this stage (because discovery hasn’t really happened because everyone has just been scrambling around and hollering “STOP.” See above.)

Court was also mindful that its analysis of hardships and public interest involved “particularly sensitive and weighty concerns on both sides.”

Buuuutttttttt…“Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Boom.

The legal breakdown:

Jurisdiction (the states argued that the Court didn’t have jurisdiction because a Temporary Restraining Order is not usually appealable – Court was like, “nah, we totally have jurisdiction because this situation is weird and extraordinary because it ‘possess[es] the qualities of a preliminary injunction.’” (And those are appealable.)

Standing (because, remember, the Government argued that the states couldn’t bring the case because they didn’t have enough skin in the game. Basically.) – States argued that they absolutely had enough skin in the game because their public universities were harmed by the EO (stranded students, trapped faculty, affected research, trouble recruiting, etc.). The Court was on-board and decided that the states had third-party standing and it could hear the case.

  • More specifically: “[The states’] proprietary interests [are] traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”
  • The Court felt pretty confident that states’ issues would be solved if they obtained what they wanted: chiefly, a declaration that the EO violates the Constitution, and an injunction keeping it from being enforced.

Whether the Court had the Power to Review the Executive Order (because the Government [editorial comment: so full of shit; I’m surprised they tried it] argued that “the President has unreviewable authority to suspend the admission of any class of aliens.”)

  • Court got really offended here, actually. You can just tell. It would have been down with the principle that great deference is owed to immigration and national security policy determinations of the political branches. SO DOWN. But that’s not where the Government went.
  • INSTEAD, Government took it further and argued that all of the President’s decisions about immigration policy (especially if they had to do with national security concerns) were flat out UNREVIEWABLE. Even when those decisions were unconstitutional. Government said that “it violates the separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”
  • Court was offended. Court, in a more polite and courtly way, said “Yeahhh…no….gtfo and stop making up laws, guy.” What it actually said was, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.” (i.e., you pulled that whole line of argument out of your ass; what were you thinking? That is LITERALLY OUR JOB and we are going to do it right now.)
  • Then the Court gives lots of examples about all the times it came in and reviewed executive actions (really hammering that Government attorney into a hole). It’s pretty clear that the 9th Circuit is making a very clear record, on the off-chance the Supreme Court takes the case, that precedent is WAY AGAINST the Government on this one.
  • The Court also calls out the Government for making the rookie mistake of NOT INCLUDING THE WHOLE QUOTE AND LEAVING OUT THE BITS THAT CONTRADICT ITS ARGUMENT. So that was cringey. Court told Government that it was just…wrong. And not only was it wrong, but the case it was wrong about didn’t actually even apply, anyway.
  • This section goes on for a very long time – I recommend reading it if you have the time – as the Court seems very keen on letting the Government know that it is the Court and it does get to review things and the Government better sit down and stop talking while it’s ahead.
  • I wouldn’t be surprised if, in retrospect, the Government is thinking that maybe it shouldn’t have made this argument. (Although, it’s honest to God so bad that it makes me wonder if someone in DOJ was trying to pull off some intentional sabotage.)
  • Seriously, this section takes up most of the opinion, I’m pretty sure. Just the Court telling the Government how wrong it is. About everything. (Schadenfreude at its very finest!)

The Legal Standard of Review – Just the Court discussing how it analyzes a motion to stay. Significantly less thrilling than the former section.

  • Four questions: (1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) Whether the applicant will be irreparably injured absent a stay; (3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) Where the public interest lies. The first and second factors are the most critical.
  • Court’s like, “We conclude that the Government has failed to clear each of the first two critical steps.”

Likelihood of Success – Due Process (Government cannot deprive individuals of life, liberty, or property without due process of law. That’s the Fifth Amendment, folks.)

  • The Court didn’t think the Executive Order provides what due process requires (“notice and an opportunity to respond”) such as “notice and a hearing prior to restricting an individual’s ability to travel.”
  • It then points out that the Government didn’t even try to argue that the Order did such a thing but rather argued that most of all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
  • Aaaand again, the Court points out just how wrong the Government is when it states, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’” (Guys, it’s actually really weird how wrong most of the Government’s arguments are. Like…REALLY weird. Maybe Bannon wrote them, too.)
  • The Court then gives a long list of all of the things that the Government failed to establish that it should have established in order to show that it had a likelihood of success.
  • My favorite is when the Court throws some serious shade at Trump (who, let’s be honest, probably won’t pick up on it because nuance isn’t his thing) and the White House counsel: “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” (Basically the Court is saying “why the heck are you listening to Trump? Who cares? He doesn’t know what he’s talking about.)
  • Then the Court calls out the Government for its “shifting interpretations” of the EO, which effectively undermined the Government’s ability to show that the allegedly wrongful behavior could not reasonably be expected to recur.
  • Just to cover its butt, the Court went ahead and also said that even if the due process claims of lawful residents were no longer a part of the case, the Government would still fail and that, no, the TRO was not overbroad, thankyouverymuch.

Likelihood of Success – Religious Discrimination (No law respecting an establishment of religion may be made. That’s the First Amendment, guys! Aka Establishment Clause.)

  • Any law that has a religious, not secular, purpose violates the First Amendment. This includes any sort of “preference” to a religion because that sends the message to anyone outside of that religion that they are not full members of the political community.
  • The Equal Protection Clause also prevents Government discrimination based on religion.
  • The states obviously brought in all the tweeting Trump has done over the past year in support of their argument that the EO violates the Establishment and Equal Protection Clauses, because what lawyer worth her salt WOULDN’T bring them in?!
  • They also drew the Court’s attention to the part of the Order that gave favoritism to “minority” religions. (Sections 5(b) and 5(e)).
  • The Court could consider these things because courts are allowed to consider evidence of purpose that exists outside of the text of the challenged law when dealing with Establishment and Equal Protection Clause claims.
  • Court determined that the States’ claims raised “serious allegations and present[ed] significant constitutional questions.” But it held off on saying whether the Government had a likelihood of success because it had already failed to meet its burden on the due process claim and the Court wanted more information.

Balancing Hardships and Public Interests

  • Court: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” (LOUDER FOR THE PEOPLE IN THE BACK. The people from the banned countries are not responsible for attacks against the US and the Government couldn’t counter that!)
  • Court again (the Court doesn’t need my help here): “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” (LOLZ, Court already covered that one earlier.)
  • Basically, the Court suggests that the Government is a whiny baby and has a pathetic claim next to the public who will suffer all kinds of harms (students separated from families, students and employees stranded, etc., etc.), plus an impingement on the interest in free flow of travel, freedom from discrimination, etc. – “We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”

“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”