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Archive for July, 2014

SCOTUSBlog is running a series of video interviews with the ACLU’s Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.

Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief’s defense of the facial constitutionality of Massachusetts’ public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law–not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.

The ACLU’s McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU’s position “evolved over time.”

McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.

There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU’s brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.

Not all evolution is progress.

Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.

(cross-posted at Mirror of Justice)

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One feature of speculation about how the Supreme Court might rule on the challenge to the ACA subsidies is reference to the Court’s narrow upholding of the individual mandate against constitutional challenge in NFIB v. Sebelius. I’ve heard some conservatives wondering, to put it bluntly, whether the Chief Justice will fold again. This kind of framing, I think, misunderstands the nature of the Chief Justice’s decision in NFIB v. Sebelius and ignores two key differences between that case and the ACA subsidies cases.

I accept the press reports that the Chief Justice changed his vote in the individual mandate cases. But I do not think it in his judicial character to have buckled somehow. The stakes of the case may have led to some re-examination, but I think the Chief Justice became persuaded of the legal merits of the arguments that he ultimately set forth in his opinion. I suppose we’ll never know. So, on to the next issue …

Tom Goldstein argues that “a major lesson to be learned from the Court’s previous decision holding that the ACA is constitutional is that a majority of the Justices do not want to determine the fate of a hugely important social issue that has been debated in this country for decades.” At some level, it blinkers reality to say that consequences don’t matter to judges. But they are less consequential for many. And there are at least two very important differences between the individual mandate challenge and the ACA subsidies challenge that should factor into assessment of the Chief Justice’s likely position. First, a ruling for the individual mandate challengers required the development of constitutional doctrine in a way that a ruling for the ACA subsidies challengers would not. The political branches have long been on fair notice that text of enacted law controls, whereas they may have been lulled into complacency by the Court’s own latitudinarian constructions of the scope of congressional authority under Article I over time. Second, there is no statutory inseverability issue in the ACA subsidies challenge. The decision in NFIB v. Sebelius was made under the shadow of potential statutory inseverability, such that a newly formulated limitation on congressional power could be used to take down the entire ACA in one judicial ruling. While the practical effects of invalidating the IRS regulation in the ACA subsidies could be severe, the legal ruling would itself be much narrower by comparison.

These two differences may partially explain why the Chief Justice might size up the ACA subsidies challenge differently from the individual mandate challenge from a judicial and institutional point of view.

Another piece of the explanation may be his recognition that the Court’s authority stems from its identification with the law, and that identification is easier for people to make when there is relatively clear statutory language in contrast with murky constitutional doctrine that has been treated in accordion-like fashion over time.

Nor can one discount the possibility that, over time, Chief Justice Roberts has come to view President Obama’s commitment the rule of law in a manner similar to how Chief Justice Marshall understood President Jefferson’s commitment to the same.

For all these reasons, I hesitate to draw too close a connection between how Chief Justice Roberts approached the individual mandate challenge and how he might approach the ACA subsidies challenge.

From an interpretive point of view, more relevant data points would be his opinions and votes on similar questions of statutory interpretation. I have been surprised, for example, not to have seen any mention of Bond v. United States in any of the opinions upholding the regulation or in any commentary thus far on the interpretive issues raised. Bond was a case in which Chief Justice Roberts found statutory ambiguity to arise from the improbably broad reach of a statutory definition, the consequences of the interpretation, and the apparent lack of any need to take the broad definition in its full breadth given the background of the law. As Justice Scalia put it in his dissent: “Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous!” In essence, that is at the core of what some critics of Halbig are arguing. And one can see the outlines of a similar argument from the improbably narrow formula for calculating credits, the consequences of adopting this interpretation, and so on. My own view is that this argument should be a loser given the relevant statutory language. But it’s the kind of argument that those who disagree with Halbig need to be making if they are interested in the Chief Justice’s vote.

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Three-judge panels of two federal courts of appeals today issued directly conflicting rulings on a key IRS regulation implementing the Affordable Care Act. This regulation authorized subsidies for those purchasing insurance from government exchanges, regardless of whether those exchanges were established by the federal government (as in most states) or by an individual state. If this regulation is invalid and subsidies are therefore not available on exchanges established by the federal government, then one leg of the government’s three-legged stool in the Affordable Care Act is removed in more than half the states in the country.

In Halbig v. Burwell, a split panel of the D.C. Circuit held the regulation invalid. Shortly thereafter, the Fourth Circuit issued a directly contrary decision in King v. Burwell, upholding the IRS regulation. Most news coverage thus far has focused on the D.C. Circuit’s decision. There may be a few reasons for this: (1) lots of policy journalists in D.C.; (2) the D.C. decision came first; and (3) the D.C. decision would alter the status quo significantly, while the Fourth Circuit decision would maintain the status quo.

The Fourth Circuit decision is important as well, though less for what it holds than for how its upholding of the regulation might actually benefit the challengers who lost the panel decision. In short, the Fourth Circuit’s decision may speed up the timing of Supreme Court review of this issue. Here’s why: En banc review would probably be favorable for the government in both courts. This means it is likely that the government will seek en banc review in the D.C. Circuit case. The decision to grant en banc review by itself would vacate the panel decision, thus eliminating the existing circuit split, at least for the time being. And if the en banc D.C. Circuit were to rule differently from today’s three-judge panel, then there would not be a circuit split with the Fourth going forward. In the absence of the Fourth Circuit decision, then, it would take a while before the Supreme Court takes a case raising this issue, and the Court might never grant if there is no split. But because the en banc Fourth Circuit is likely favorable for the government, the plaintiffs in that case are likely to bypass en banc review and head straight to the Supreme Court. The Court has discretion whether to grant certiorari, of course, but a circuit split on such an important part of a massive regulatory scheme is the sort of thing that the Supreme Court should hear. Having a final decision in favor of the government therefore is of some help to the challengers because it enables them to go to the Supreme Court more quickly.

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