2019 Supreme Court Press Preview at Georgetown Law


– All right, we’re gonna get started, and when Martin comes in, he’ll just slot himself in and fire away. Welcome to our annual
Supreme Court Press Preview. Last year I said that with the
departure of Justice Kennedy, a big change was coming. It was only a question
of how far and how fast. Last term’s answer was, not all that far and not all that fast. In part that was because some of the most controversial cases were pushed on to this term, and in part it was because
the mix of cases left produced some strange alliances. Still, we saw two cases overruled with barely a nod in the
direction of stare decisis, and we saw the biggest
issue of the term by far divide five-four along familiar lines. I predict this term will
be an even more so term. Probably not the revolution
that some seek and others fear, but we will likely see a Court moving further and faster
in a rightward direction. The docket almost guarantees it. On the docket already are cases involving sexual orientation
and transgender status, deferred action for Dreamers, the Second Amendment,
aid to religious schools, the prosecution of politicians for fraud. On the horizon are cases involving the scope of the abortion right and the constitutionality of single-member independent agencies. So let’s go to it. Before we do, a word on procedure. After a case is presented, I’ll ask if others on the panel
have thoughts on the case. And then when that discussion’s done, I’ll ask for questions from the press and we’ll repeat that
procedure for each case. We’ll start with sexual
orientation and transgender status, Title VII, Paul Smith. – At the risk of telling you
all things you already know, the most watched cases
of the upcoming term are probably the Zardack, Bostock, Harris Funeral Home cases, all of which present the question of whether or not Title VII, the prohibition of
employment discrimination in the private as well as public sector, which prohibits
discrimination based on sex, should be interpreted as
prohibiting discrimination based on sexual orientation
and transgender status. The three cases involved
employees who were fired either because they were, they allegedly were fired because they were found out to be gay, or in one case, the
Harris Funeral Homes case, the person came to work
saying, “I’m transgender. “I’m now a woman,” and the funeral director
eventually came to the conclusion that that wasn’t gonna work and fired that employee as well. This is an issue that’s been percolating starting in the last Administration in the Equal Employment
Opportunity Commission, eventually started to gain
some traction in the courts. And there was great excitement in the LGBT activist lawyer
circles in those years because, having won
pretty strong protections against any form of public discrimination at this point, after the Obergefell case, governmental discrimination
under the Constitution, there was this perceived great gap of protection in the private sector and there’d been a failure over 20 years to pass legislation like Title VII to prohibit employment discrimination and other forms of discrimination
in the private sector based on sexual orientation
and transgender status. And so the hope was, let’s get this issue up to the Supreme Court while our friend Justice
Kennedy’s still there. And these cases kept getting
pushed up to the Court and eventually the timing
did not work out so well for those who were believers in extending the reach of
Title VII in this direction, because of course Justice
Kennedy’s not there. Nevertheless, the arguments
are reasonably strong that Title VII should be interpreted to cover these cases. Of course the cases raise this question of whether you should look
at original intent in 1964 versus what the language seems to say, which is interesting as a matter of statutory interpretation. The argument for covering
the transgender case is that when you fire somebody
because they went home as a man and came back as a woman, that that has gotta be viewed
as a form of discrimination based on gender or sex. There’s a second argument
that, under Price Waterhouse, you are violating the prohibition of firing people because
of failure to conform to the stereotypes associated
with a particular gender. This argument’s strong enough that, in a constitutional context, some years back the
11th Circuit unanimously found a violation of the Constitution when the Georgia legislature
fired an employee for coming to work with
a different gender. Panel opinion joined by Judge
Pryor on the 11th Circuit, a very conservative judge. So it tells you that there’s
at least some resonance to the argument that this has to have something to do with sex. In the sexual orientation context, the arguments are similar, although perhaps not
quite as direct or clear. The argument is that if you fire somebody because you find out that
this gentleman has a husband, that is firing him because
of the sex of the husband, or it’s firing because
of the employee’s sex because you wouldn’t fire a
woman for having a husband. Sort of basic sort of
argument of that sort. Again the Price Waterhouse
stereotype argument can be wheeled out as well, saying really what you’re saying is a man ought to conform to my assumptions about what men should do, which is not have a
boyfriend, or vice versa. On the other hand, I
think there’s probably a little bit of a argument that it’s a little easier to say now there’s a difference in this context, sex discrimination on the one hand and sexual orientation
discrimination on the other hand, especially if the employer says, “Look. “I would fire a lesbian
as well as a gay man. “I’m not discriminating based on gender, “I’m just discriminating against people “because I don’t believe
in same-sex relationships.” And so that’s sort of
the terms of the day. We’ll have to wait and
see what the Court does and how it wrestles
with this issue of text versus original intent
of the Congress in 1964, which I think nobody thinks there was anybody in Congress in 1964 who thought this is what they were doing. But we have the Oncale case,
when Justice Scalia said we should follow text
and not original intent. In this context, that was
a case some years back about same-sex male-on-male
sexual harassment and how that’s covered by Title VII. And we will have to wait and see. Another issue, of course, is
what do you do with the fact that Congress has debated this issue, debated adding this to Title VII, or effectively adding this to
Title VII, for many years now and never passed it? Do you attribute any significance
to Congress’ inaction in the face of the argument that we need to have
this very prohibition, and does it make sense to
reinterpret existing law to get around that gap? Is that good place to stop? – That’s a good place. So I invite others on the panel who may have thoughts on
this case to weigh in. Please. – Yeah, I just think one
interesting feature of the case, and I wonder if Paul
was surprised by this, but if you look at the
lower court opinions talking about this issue, one of the things that sort of jumped out is the fact that you have
some interesting folks lining up in interesting places. You know, this might be thought of as a hot button issue that would divide along political lines or lines of the appointing President. But I think in some ways,
the strongest opinion, or one of the strongest opinions written on the side of a narrower
version of the statute is by Judge Lynch on the Second Circuit, who is not a conservative, not traditionally thought
of as a textualist, whereas one of the most prominent
textualists in the country and sort of the founder of the new textualist approach to
interpretation, Judge Easterbrook, sided, I think, with Judge Wood’s opinion in favor of a broader
vision of the statute. So I think it’s sort of interesting. That’s an interesting fact about the case. And I think in some ways, it confirms that the judges here
really are working hard to apply their principles of
textualism or purposevism, their theories of
interpretation, to the case and it’s not just one that is gonna necessarily line up neatly
along ideological lines. – It has been striking how
the judges in the lower courts do not conform to the sort
of nomalist assumptions about left, right and center. They’re all over the map. And there’ve been a lot
of judges who voted, because we had these two en bancs, both in the Seventh Circuit
and in the Second Circuit. So a lot of different opinions, a lot of different positions taken. And Judge Lynch’s opinion
does sort of stand out. But it reflects this tension between, can I really interpret a statute passed in 1964 to do something? I mean, in 1964, in most
states it was illegal even to have sexual relations
as a same-sex couple. Does it really make
sense that that statute could somehow leap forward
and have this effect? On the other hand, the textual
arguments are pretty strong, as other opinions on, Judge
Easterbrook for example, shows. So I think that’s where you
get this strange alignment. – Just picking up on
that, one of the things that’s been interesting to me is that I think different
people just look at the text and it just strikes them differently. And that’s just been surprising. I mean, I guess I read
the Judge Lynch opinion and was pretty understanding of that view, that on the text, “because of sex,” that maybe it was gonna
be hard for a textualist to get to the outcome of extending the prohibition in this case. But, you know, over the summer, our firm gave a lot of
client presentations, right? And so we talked about this case. And I said things about, like, “Well, it’s gonna come down to
what “because of sex” means. And it was just, it was
really surprising to me that, like, audience
members would be struck just different ways. Well, of course it covers this, of course it doesn’t cover this. It just, it raises a lot
of interesting questions of, like, what does “because
of sex” really mean? It’s rare that there’s text that, like, textualists
disagree about what it means. – Well, one of the interesting aspects is, well, and it raises similar issues, is there’s good law that says you
can’t fire a white employee for marrying a black person, that that’s an associational claim, that you’re basically
firing the white employee based on the race of the
person that they’re marrying or having a relationship with. And that argument tries to get extended over to this context, where we say there’s
an associational claim. You’re discriminating
against the same-sex couple because of the association
that’s going on there. But Judge Lynch, in an
argument that’s also echoed in the Solicitor General’s brief, which the Solicitor General
is on the employer’s side in this case, says, “That’s different. “That’s obviously racist
when you fire somebody “for the race of the person that they’re “having a relationship with.” But nobody says you’re being sexist when you fire somebody when
you find out they’re gay. You may be being something else, but you’re not, says the
Solicitor General, being sexist. And Judge Lynch agreed with that. – Anyone else want to weigh in on that? If not, let me just ask
one question to Paul, and then everybody else can comment. Do you see any possibility
that the Court could come out differently in these two cases? Or do they rise and fall together? – Actually personally,
my instinct on this, and Nicole is probably right that everybody just has a different take, is that the transgender
case is a little easier for the plaintiff’s side, that it’s harder to separate
the reason for the firing with his transgender status from sex than it is to separate
sex and sexual orientation in the sexual orientation context. I can imagine a world in
which the transgender case comes out for the plaintiff’s side and then the gay issues
come out the other way, yes. It’s not unimaginable to me. – Can anybody imagine
the opposite happening? Or is that the? – Well, sure. I mean, I think that Paul’s right that there are a lot of people who think there’s a good argument that the case for the transgender employee is better. But, you know, the
Supreme Court’s gonna say that there’s not a
prohibition on discrimination on the basis of sexual orientation, but there is on the basis
of transgender status? That just doesn’t seem like
something they would do. – Just because of where we are culturally on those two issues? Yeah, maybe. – We’ll, I’d say the reason for that, well, if the Court does
that, will likely be because of this idea that ’64 Congress could not possibly have conceived of that. And if that’s the rationale, then it’s hard to imagine they’ll say that transgender
discrimination was within the– – No, no, I think decidinf
original intent is the issue, which would be odd in some ways. Then you’re right, they’re gonna go, the case are gonna be
decided the same. (laughs) – Yeah, and the only thing, I’m kind of with Paul on this one in the sense that it
seems to me that I think– – Paul and I, we agree
on almost everything. (audience chuckles) – Yeah, yeah, almost everything. You know, I think the way
you probably get to five, if you can, on this case, is to start with the left side of the Court and then get a textualist
who just doesn’t care what they thought in 1964 at all. – Right. – If that’s the way you think you’re getting to your fifth vote, then I think Paul’s right
that then all that matters is which is the more accessible argument just based on the plain text. And I think transgender
is kind of more accessible based on the plain text, ’cause, you know, I think on sexual orientation, the kinda quasi-associational routes, at one level, that’s
an attractive argument for the plaintiffs, but it doesn’t quite capture
what they’re trying to protect. I think they’re trying
to protect the status without regard to whether you’re married to somebody of the same sex. So the kind of associational piece doesn’t seem quite as strong to me as just a pure textual argument as the argument that, you know, I mean, Paul put it one way. The other way I’ve heard it put, which I think is potentially
a winning argument for a textualist is, if an employer discriminated
against somebody not because they are Catholic or because they were Lutheran, but because they changed their religion, would you say that’s
discrimination based on religion? – That’s a good argument. – In the transgender,
there’s barely a dispute, there’s a little dispute, that the decisions there
are because of sex, right? The real dispute is whether
certain sorts of categorizations based on sex, dress codes,
rest room assignments and the like, behavioral norms, are nevertheless
permissible under Title VII. The government and the
defendants don’t do a lot to argue that it’s not because of the sex of the transgender employee, because obviously it’s
based on their biology. Disclosure, I filed a brief
to that effect in the case. And the real question is, when is discrimination on the basis, when is action on the basis of sex not prohibited discrimination? – And that does have to do
with the dress code issues and the exceptions that exist
out there as well, yeah. – Let’s go with the questions. Yeah, start here. – [Woman With Dark Long
Hair] I was just wondering (drowned out by ambient noise) – That’s really an issue that would be left to the next case. I mean, there is, in the transgender case, an employer who apparently
has religious aspects to why the decision was made. But that’s not really the issue that’s before the Court in this case. – Yeah, and the only thing I would say is, I think where that issue could come in is, I think that potentially one of the defendant’s
stronger arguments is not just that Congress didn’t
have this in mind in 1964, which everyone seems to sort of stipulate, but if the Congress actually decided to address these issues squarely, it would have to deal with, like, do we have a religious exception? What’s the scope of the
religious exception? And all of those are a little more– – That’ll be the next case.
– Political decisions that Congress never addressed in this act. And that’s sort of a reason
why, even in this case, to say we’re gonna sort of
limit the scope of the statute to what Congress had in mind in 1964. That seems like the way you could sort of back into some of those
issues in this case. But otherwise, there is a next case. – I don’t think it’ll be in the opinions, but I do think that, as you probably saw, a bunch of amicus briefs are warning about the threat to religious freedom. And religious employers in particular, none of whom, by the way, acknowledge that they actually would
discriminate an employment against gays and lesbians. But put that aside. And I think that’s what makes the case sort of a political hot potato. And Justices who might
otherwise be inclined to rule for the plaintiffs on textualist grounds, for instance, this is probably the
one sort of social issue that might be holding them back. It’s the one movement issue that might be affecting the case, although I don’t think that
will come out in the opinions. – Other questions? Yeah. – [Man] The plaintiff relied
(drowned out by coughing) Justice Scalia’s opinion
in the case of (mumbles), I don’t know how.
(Paul Smith laughs) And I’m wondering if Paul Clement thinks that that is, like, the weapon that they can get in. – I don’t know that it would
be successful in the end. But, I mean, if I were
briefing that side of the case, I would have a cite, and now somebody told me who was, like, at the moot court in the
original Sundowner case, which is one way to
get around the problem, (Paul Smith laughs) said that it’s a Cajun name and it really is On-call, not On-cahl-ay. That, so, but for what that’s worth. But no, if I were briefing
that side of the case, I would have that on
pretty much every page, ’cause again, that’s all
consistent with my belief that, you know, paradoxically,
I think this is a case where it would be tough
to get the Chief’s vote. You know, maybe as part
of a grand compromise. But in terms of the way he approaches statutory construction, this almost seems like a
King v. Burwell type issue, which is, like, yeah, you know, maybe when Congress doesn’t
have the exact issue in mind, we’ll just go with the text. But when the exact issue, like, happens to be almost a bigger deal than what the underlying
statute clearly covered, like, maybe we should have kind of a major issues exception to Oncale. But it’s harder to imagine
a Justice Gorsuch thinking that’s the way that you go about interpreting statutory text. And so because that’s
where kinda, I think, that maybe the most likely fifth vote is, yeah, I’d be hitting the
Scalia angle very hard. – So just to put out the
other side of Oncale, the government and the
employer rely on it a lot, too. And there’s that kind of famous line, I don’t know if it’s famous or not, but the key issue is
whether women are exposed to conditions in a way that men aren’t. And at least the government
and the employer think that that particular line favors them. So I see Oncale as kind
of a double-edged sword. Anyway. (man speaks softly) Yes, it did. Yeah, it did. Yeah, from here. (man speaks softly) – How widely-felt this opinion will be? I mean, it’d be huge
for the LGBT community to have protection in the private sector from employment discrimination, which is pretty much a
rampant problem to this day. That’s the reason why it’s been the number one goal in
the legislative agenda for the community for a couple of decades. And to have that problem
solved at least in employment, it would apply to other aspects
of private discrimination that people worry a lot about,
like housing discrimination, but it would be huge
for the LGBT community. – All right, so if there
are no further questions, we’ll turn to DACA and Nicole. – Sure. I’m excited to be here and
excited to talk about this case ’cause I think it’s fascinating and I’m interested to hear what the other panelists have to say. It’s fascinating to me because it has interesting legal issues and
because a lot of interesting kind of legal strategy
decisions have been made, and even as the case has
gone to the Supreme Court. First to talk a little
bit about the issue, the DACA program is the program
for children or individuals who came to the United States as children without legal documentation
to be in the United States, who lived their lives here, who followed the rules
that the government set out in terms of being good citizens, not committing crimes,
et cetera, et cetera, and who, under the DACA program, which was put in place in 2012, have had the ability to stay here. So this is a program put in
place by a government agency. It is not something that
Congress put in place, which is important because
now the agency says that it can get rid of the program. In terms of the stakes,
there are, I think, between 700 and 800,000
people who are affected, who would have to leave the United States because they would not have
a legal right to stay here. So I think it’s fair to say that they’re pretty sympathetic people, doctors, lawyers, people who’ve built their
families here, et cetera. So this program’s existed since 2012. When the new Administration came in, the Attorney General decided
that the program was unlawful and should be rescinded. I should say that there’s a little bit that happened before that point, especially if the government
thinks it’s very important, which was the DACA program, which is a separate but
somewhat similar program that was litigated up
through the Fifth Circuit into the Supreme Court. You might remember the decision
United States versus Texas. An equally divided Supreme Court affirmed. And so there had been this
question about the lawfulness of a deferred action
program like this one. So the new Administration comes in, the Attorney General says through memos to the Secretary of Homeland Security, “This program is unlawful,
we should rescind it.” The Secretary of Homeland
Security rescinds it. Immediate challenges are brought throughout the United States by organizations, by
states, by DACA recipients. The main challenges came
up through the courts in California, in New York,
in D.C., and in other places. But I’ll just focus on those three because those are the petitions that went to the Supreme Court. The California case, as
you probably all know, is the one that was furthest
along for most of this, and frankly, it’s easiest
for me to talk about ’cause I worked on that
case for a long time. I’m also telling you my slight bias there. Also in the California case,
immediately the DACA recipients moved with the State of California for a preliminary injunction. The District Court granted
the preliminary injunction. There were also questions about
the administrative record. The government went to
the Supreme Court twice, one on mandamus, which got denied, one on a petition for cert before judgment before the case went to the Ninth Circuit. Then the case went up
to the Ninth Circuit. And interestingly, this where
the legal strategy comes in. The government did something that I haven’t really seen
them do all that often, at least in my experience, which is tell the Court of Appeals, “We already sought cert
before judgment once. “If you don’t rule soon,
we’re gonna seek it again.” Hm. Not something that I’ve ever done. But I guess there was a
strategic decision made there. The Court of Appeals eventually did rule, but not before the government
filed three cert petitions, some of which were served before judgment, and said to the Supreme
Court, this is last November, “We want you to make a decision “about whether to take this case. “You know you’ve already
seen this kind of issues “coming up to you several times. “They affect a lot of people. “This is a question of
the President’s authority. “You know, you need to resolve it. “Major national issue.” So the cert petition
sat around for a while. You know, they were kind of teed up in the December, January timeframe and people were wondering, is
the Court gonna grant review? Especially, is it gonna do
it, you know, last year? And nothing happened
until the end of the term, where the Court finally
granted review and said, “Yup, we’re gonna hear these cases,” and I think they’re teed up
for the November sitting. So they have essentially two issues as they go to the Supreme Court, one, whether the government’s decision to rescind the DACA program is reviewable, judicially reviewable, and two, whether the government’s decision is a lawful decision. So starting with judicial reviewability. I mean, I don’t know
how many of these cases you guys have seen, but having litigated for the government for a while, when we told the Supreme Court that something was not reviewable, we typically were not well received. The Supreme Court does
not like being told, like most courts do not like being told, that they can’t review something. And that is, the courts below
also rejected this argument pretty resoundingly,
that the decisions above, the decision being non-reviewable. The government really had kind of two sets of arguments there, which basically have
to do with them saying that this is a decision that’s committed to agency discretion by law under the Administrative Procedure Act, and then a more narrow argument that went to prosecutorial discretion and saying that removal of
people from the United States is essentially an act of
prosecutorial discretion that is unreviewable. And for a while, they relied
on a particular provision of the Immigration and
Nationality Act, Section 1252(g), which does say that courts
can’t hear decisions to commence particular review proceedings. That was a big focus in the lower courts. It became less of a focus in
their US Supreme Court brief. So first question, nonreviewability. That is a hard hurdle, in my view, for the government to overcome, to actually get the Supreme Court to say it’s not reviewable. But, you know, you could see that being a potential avenue for decision if the Supreme Court did not
want to review the merits. The second question, is the
rescission of DACA lawful? So the arguments that
were made and sustained by the courts below are generally administrative procedure-type arguments, like this was arbitrary and
capricious decision-making. And one of the main arguments
that prevailed below was the challengers saying, “Look. “The Attorney General said that the reason “for DACA being rescinded is “because you can’t have the program. “It is unlawful to have the program. “And that’s just wrong. “It’s a discretionary program. “You could have it, you could not have it. “But if your decision, government, was “that you can’t have the program, “that’s just a legally wrong decision “that courts can review
and should be reversed, “and frankly, you should have to come up “with a better reason, “especially because
people are relying on it.” You may recall that cases, including some that Paul have argued, that say that if the
government changes position, under the APA, you’ve got to explain that change in position. Well, that flavor came through in some of these arguments. The only other thing I wanna mention, by way of whether the
rescission is lawful, is it’ll be interesting to see
before the US Supreme Court what arguments about why DACA
was rescinded are in play. So the original rescission letter, there were letters back and forth between the AG and the
Department of Homeland Security, seemed to provide only one reason, which is you can’t have the program. But as the litigation went on, the Department of Homeland
Security was providing other reasons, like
maybe you could have it, maybe you can’t have it, but there’s litigation risk to having it because this DAPA program
was held unlawful. And so we don’t wanna
have the litigation risk. And then in the D.C. litigation, actually the D.C. court asked the Secretary of Homeland Security whether there were additional reasons. And the Secretary of
Homeland Security provided some additional discretionary reasons. Can you consider those reasons? Were they the original reasons? Are they the after-the-fact
rationalizations? I think those are the questions that the Supreme Court
will be grappling with. And then of course in the
background is this concern that many Justices have set out about nationwide injunctions. And again probably all of these cases where the DACA recipients
and organizations won below, nationwide injunctions
were being put in place, the government’s had pretty
serious concern about those. This is really an
opportunity that they have to tee that up before
the US Supreme Court. So that’s it by way of background. And I’ll be interested to hear what the other panelists have to say. – Okay, thanks. Other people on DACA? – We’re a very timid panel here. – Yeah, I was just gonna say
what’s odd about the case is it seems like if the government loses because they relied on
incorrect legal analysis, turn around and do the
same thing the next day, just say, “Here’s our three reasons.” That’s gotta be sort of in the background, I think, of the Justices. Are we really (mumbles) go
through this whole thing, just for the kinda
formalist APA kind of reason of telling them, “Well,
your original reason’s bad. “All the other stuff
you put in is too late “and we’re gonna make
you go through the hoops “all over again just to do it”? – Well, yeah, that’s one
thing I didn’t address, which is like the role of
Congress in this, right? Like, let’s say these folks
want to have a legal right to stay in the US. Where do you get that from? A law that Congress enacts, right? That would provide it for them. This has been back and forth in the news, you know, will Congress
provide a solution? Will it not, et cetera, et cetera. And so, Paul, I think you’re
right that to some extent, the DACA recipients are trying to buy time to be able to get a permanent
solution from Congress. – And sort of on Paul’s point, Nicole, do you have any theories as to why the government hasn’t more
formally expanded its rationale or added to its rationale, or sort of redone it in a
way that they could say, “Oh, we think it’s unlawful. “But even if we weren’t
100% sure about that, “there’s enough litigation risk,” and sort of embed that in the decision? – I think they have now. You know, the California
case was happening, and then the D.C. case was a little, like, not as far along. And then the D.C. judge
actually said, like, “I think this has a problem under the APA. “But why don’t you give me your reasons?” And then the Secretary of
Homeland Security filed this new couple-page memo. So it’s just a question of, like, are those post hoc reasons or can you consider them? I actually thought about this question earlier on in California for a long time because it seemed to me
like the government had such an easy argument, right? Like, this is discretionary. We’re gonna exercise our discretion and not have it anymore, right? Who cares if we can have
it or we can’t have it, we just don’t want to
and here’s some reasons. And I think, you know, I always thought that part of it was because the Attorney
General was responding to this fairly conservative legal position that the State of Texas had
staked out in the DAPA case, like, you can’t have it, which was a more hard and fast. And so my sense, and I don’t
know what was in his mind, was that he was kind of embracing
that position originally, but as the case proceeded
through litigation, especially with the involvement of the Solicitor General’s Office, that they recognized perhaps
the same thing you did, which is, let’s shore up our reasons. And certainly their Supreme
Court brief tries to do that. – A few quick things. First, I’ll start with this point. I think the reason they’ve been reluctant to give these policy rationales is that they wanted to
justify their decision, “and the law made us do it. “We don’t want to do it, we’re
in favor of the Dreamers, “the President’s said as much. “But gosh, we have no
choice but to do it.” And to actually take
responsibility and say, “No, we have discretion here “and are choosing to rescind
it for the following reasons” is something they came to very reluctantly and sort of obliquely and after the fact, and on page three of the memorandum. But having said that, as Nicole suggested, government has no fewer than
seven different arguments in its brief, the justiciability argument, two arguments based on the
idea that DACA is unlawful or that the government could have relied on that theory anyway, and then four policy grounds that were stated in this Nielsen memo. And just to tamp people’s
expectations down a bit, unlike most playoff series, the government only has
to win one out of seven to win this case. I happen to think that the vast majority of the seven arguments are
not very strong at all. But a couple of the policy
reasons that Nielsen articulated probably are, and therefore I think the case will turn as Nicole suggested and whether the Court
thinks those are post hoc, whether they’re not fully articulated, whether there’s something fishy about that subsequent memorandum. I do wanna just point out
two other quick things. One is, what turns on this
as a practical matter? What does it mean if DACA is rescinded? It will not mean that these
700 or 800,000 migrants leave the United States or are deported. A handful of them might. And all of them will be more nervous about being removed by
a particular ICE agent that they might come into contact with. But in any administration, these would be the last
category of migrants that you would choose
to go after to remove. What’s really at stake here
is their legal authority to be hired, the authority of
employers to hire them legally and have them in the US
employment system aboveboard, paying their taxes, being
part of the open economy rather than a black economy, which is a very big deal and it’s really what’s driving this whole case. And finally, I think
that if the Court rules for the government, the most
important question will be whether it rules on one
of these other grounds, like a policy ground, or
whether there are five votes to actually hold that DACA
was originally unlawful. Because that holding,
that broader holding, will mean that Congress
would have to act again in order to protect the Dreamers, whereas a ruling simply that
the Trump Administration had the discretion to
rescind DACA would mean that this is now a hot
button issue in the election, and if a Democrat wins, that
DACA is reinstated immediately. So the grounds of decision
are very important even if the government wins. – Anyone else here, or
questions from the press? Yeah, (mumbles). (woman speaks faintly) I know Marty has a theory about this. – I do?
– Yeah. I thought, well– – I probably did at one
point and I told Irv, but I don’t remember it. – I’ve got Marty’s theory, then, that at least as I recall it, which is that they were
waiting for the D.C. Circuit at some point. – Oh yeah–
– To bail them out. – The D.C. Circuit heard argument on this subsequent Nielsen memorandum. And I think the Court wanted
it to weigh in on that. But at some point it
looked like, who knows. But that was my, yes,
I did say that to Irv. (laughs) Yeah. (woman speaks faintly) – So anybody who wants
to weigh in on that? – Congressional experts up here? (woman speaks faintly) No, I cannot predict
what Congress would do. (panelists laugh) – That’s probably how we all feel. – Yeah, the boundaries of my expertise are already, we’re already
flirting with them. But that goes way beyond. – I mean, it is getting a little late. – It wouldn’t be (mumbles) about that. – It’s getting a little late for it to be leverage. – Mean, I did think the
broader context is important, and I don’t, I frankly don’t know, I don’t fully know the status
of the political negotiations that were in place when
the policy was enacted. But obviously this has
been a hot button issue politically and policy-wise. I think there’s an
interesting broader question about the, you know, if you have a political system that is having trouble making policy, and presidents of both parties decide that they’re just gonna do
it through executive order, I think that upsets
the equilibrium, maybe, that the Constitution envisioned sometimes and that you have this sort of, the playing field being shifted over first to the executive branch
and then to the courts. And so this seems to be
another manifestation of that. And I think that’s an
interesting feature of the case. – Other questions? Yeah? (man speaks softly) – They’d probably reserve
that question and say whether or not it was within
the Administration’s discretion to rescind it, I suspect. That’s a way of avoiding
the merits question, yeah. (man speaks softly) – So, I mean, the government says that’s what happened, in Nielsen. So Nielsen, as Nicole–
– The D.C. case. – In the D.C. case,
acting secretary Nielsen, the District Court invited a new decision. They did not come back with
what looked like a new decision. They came back with what looked like, here are the reasons why I think the original decision was
right and should be followed. And among other things, they repeated the legal rationale. But then they said, then Nielsen said, independent of that legal rationale, here are the following
four policy reasons. And part of the debate is about whether those additional policy reasons are properly before the Court or not, because in part it didn’t take the form of a completely new decision and can therefore be characterized as kind of an after the fact justification for the original decision, or something that the District
Court in its discretion was not required to pay any attention to insofar as it went beyond
the original decision. – Fascinating letter. It’s, like, three or four pages. Sorry to interrupt.
– Yeah, no– – I mean, you should read
it because the language, it’s like, it doesn’t say,
“We’re issuing a new decision.” It says, “We were always right, “but we’re gonna tell you some more stuff. “Here it is.”
(Paul Smith laughs) Okay, what am I gonna do with that? I’m not sure, if I’m the court. – I was on a panel a week or two ago with the Solicitor General, and he was asked almost
that exact question. And his basic answer was, that was you! You asked it. (Nicole laughs)
You should know the answer. They think they can win
on the original rationale. So I think they feel
confident with where they are. – They can win on the original rationale? Well, the brief they wrote doesn’t look like they think that, I must say. – I think they would characterize it all as being part of the original decision. (Paul Smith speaks indistinctly) – Yeah. (man speaks indistinctly) – Did anyone read the UK
Supreme Court decision this morning in the (mumbles), right? The whole basis of the decision
felt like the census case, was, yeah, the Prime Minister has an enormous degree of discretion to which we will ordinarily defer. But don’t give us a bullshit reason. We’re not going to accede to that. And you haven’t given us any reason why you needed this long a
prolongation of the legislature. You are obviously doing it to stop them from their constitutionally proper role. And so I do think courts,
maybe our court, their court, are looking at executive, the executive is exploiting the fact that courts are generally
deferential to it, and have their lawyers
provide reasons for things that everyone knows are
not the real reasons. And that’s actually a
hard question for courts, when the court should
look behind the surface of what an executive says is the reason in cases where that seems pretextual, and in fact developed
precisely for the purpose of surviving judicial review. I don’t think it’s an
easy question, actually. I think it’s a very difficult topic, about when the court should
call out the executive on those sorts of things. The problem here, I don’t
know what Nicole thinks, is that the Nielsen memo
comes awfully close, not in the best way imaginable,
or the clearest way, to actually expressing
what was really going on. And I thing Irv and Nicole are right that it depends on whether the
Court wants to credit that. – But I do think it does, to me at least, feel a little different from a, that’s your pretext-type case. I mean, I think it’s
probably all of the above. I think they probably did
think it was unlawful, and they thought that
if they had discretion, they would get rid of it, and they thought that,
even if it was debatable whether it was unlawful, they would avoid litigation risk. It doesn’t feel like we’re saying X when really we’re thinking
Y, at least to me. – I totally agree with that. I don’t think this was
litigated up through the courts the same way as the census case, with, like, a finding of
pretext or anything like that. It was perhaps just not a
great job at giving the reasons that actually were the reasons. But, you know, for whatever reason, the initial reason that
the government gave, which was the, it’s
unlawful, we can’t do it, was the reason that they wanted to press. And now they’ve added
these additional reasons. But I don’t think any
court has found pretext. – Well, and if you read the
rest of the census opinion of the Chief Justice’s, the part before he gets to the pretext is incredibly deferential application of basic APA arbitrary
and capricious standard. So you might view that
as more the preview here than the end of the opinion. – So the gist being this, if this comes down to ordinary APA review, the government’s gonna
be in pretty good shape. – Right.
– Yeah, okay. Yeah. (man speaks indistinctly) – It is a little unusual
for the Solicitor General to be arguing that the
Court should construe Congressional delegations very
narrowly to the executive. But that is the nature
of the argument here. And you’re right, its intention, not just with the law case, but with a century worth
of SG briefs arguing that delegation should
be construed broadly to give the executive broad discretion. – I hate to draw Marty’s ire, but I also worked for
the SGs for a long time, and I think that this is
potentially distinguishable. I mean, there was a particular issue in the travel ban case, or
particular statutory provision that gave the executive authority
that they were relying on, whereas here it really is not something that’s covered in part of the INA but in fact, like, discretion,
this deferred action that, you know, Congress and
this Court has recognized that the government has that power. But I just don’t think it’s the same kind of statutory provision that was at issue in the travel ban case. So I’m not sure that this is, that that is the right criticism to make of the government in this case. – Yeah. [Man] Do you think there’s a difference between the DAPA program
and the DACA program that would give reason for the Court who voted against the DAPA program to think this is different for (drowned out by ambient noise)? – I guess I think, you know, looking back, thinking back on the briefs, there are a number of reasons
which are escaping me now, but I remember writing them at the time, for why the programs are different. I think that they potentially are. But, you know, there’s a
certain amount of, like, kind of practicality to this that if you’re a Justice
who already looked at DAPA and you think this is, like,
the same kind of program, although it doesn’t
have the same features, that you might, you know, that whatever gut instinct
you had with respect to DAPA might be the same gut instinct you have with respect to DACA. So that’s certainly what
the argument, I think, that the government is relying on. If you read their brief and they tell the story of what happened, you know, they’re very different stories. The DACA recipients’ briefs says the story of what happened is, we had this protection since 2012, and then the Trump Administration came in and took it away with
no good reason, right? If you look at the government’s
side of they story, what they say is, we can
have these deferred action, or we have had these
deferred action programs, this one started in 2012, and then there were
immediate legal challenges to something that was similar to it, DAPA, and then it went to the Supreme Court and this happened and that happened, and an equally divided Court. And so it’s just a different
story that they’re telling. And the government story certainly relies on the litigation risk that they actually experienced with DAPA and that they potentially think they would experience with DACA. Yeah. (man speaks indistinctly) Anyone? – I think that they made a mistake and should have asked for a stay. It, I think, would have
been difficult to get one, because if you think about the factors that play into a stay, there’s a balancing of the equities and the immediate irreparable
injury to DACA recipients. And if you’re working for the government and you’re looking at the potential injury to DACA recipients and the
balance of the equities, what the government’s position looks like, or the DACA recipients’ position looks like a status quo position and the government looks like the position they’re trying to change it. So I think it would have
been an uphill battle for the government to seek a stay, but probably in hindsight,
which is always 20/20, you know, perhaps the government thinks it would have been better to seek a stay. – The weird thing (mumbles) is even though, so Sessions
said it was unlawful. Then he said we’re gonna continue doing it for six months, right? So we’re gonna continue doing this unlawful program for six months. So it’s pretty hard to go to the courts and ask for a stay of emergency when you’re gonna do it
yourself for six months. I don’t think they wanna take these people off the employment books only to have them possibly put back on six or 12 months later. It’s pretty tumultuous. – Yeah, I mean, you know, I haven’t followed this case
as closely as Nicole has. So I don’t have the same sense that maybe they made a mistake. But I do have a strong sense that would have been a very
difficult argument to make. Mean, it seems to me like
the balance of equity goes entirely in the opposite direction. And I think that’s why maybe they thought, like, cert before judgment
was kind of a compromise. Let’s do this quickly, but we can’t really
get you to stay things. – It’s just hard because
having not sought the stay and then seeking cert before
judgment and whatever else, you know, every time the
challengers to the rescission have come back and said,
“You didn’t seek a stay, “you didn’t seek a stay,
you didn’t seek a stay.” You know, kind of poking them with that. – Yeah, I think they
would have lost a stay. And that wouldn’t have
been good for the case. – So maybe it was the
right strategic decision, in Irv’s view. – In my view, yeah. Other questions on this case? So let’s move on, then, to, why don’t we do Paul
Clement, and you’ve got? – Sure, so I’m gonna talk about the Montana tax credit case, Espinoza against Montana
Department of Revenue. This case kinda has its origins in 2015. The Montana legislature passes a law that’s a lot like laws in
lots and lots of states, which basically sets
up a tax credit program for school choice. In the universe of those kind of programs, this is a pretty indirect aid program. It’s, like, even more so than
your basic voucher program. This is kind of a second or
third generation program, where the state gives
taxpayers a $150 tax credit if they make a contribution
to a scholarship organization. The scholarship organization
then takes contributions and makes ’em available for scholarships at any private K through
12 school in the state. So you do have sort of kind
of multi-levels of indirection between the state coffers
and the ultimate recipients at the private schools
that might be religious. And all of that’s done because
of the intervening decisions of first the taxpayers
and then the parents. So from the standpoint of any kind of Establishment Clause
violation allegation, this state program is, you know, I think, obviously constitutional
under Zelman and its progeny. But Montana, like a lot of states, has a provision that
is in its constitution called affectionately the no-aid clause that was originally adopted in 1889. I’m sure Montana resists the suggestion this is a Blaine amendment, but I think this is a
state Blaine amendment, you know, passed originally in 1889. It was carried forward in a
constitutional revision in 1972. And I think to the extent
there are arguments floating around the Blaine amendments are kind of malum in se or the
product of religious animus, I think the state relies a little bit on the fact that it was reenacted in 1972. I’m not sure if this were
in sort of a race context that that reenactment would
make that much of a difference. I’m not sure in the end that the Court’s really gonna
wanna wade into this issue. But that’s sort of the background, that Montana has this provision. The provision is, I think, both kind of a difficult
provision to think that the state can have this program consistent with the state constitution, but then it’s also, I
think, a difficult provision to say that it doesn’t
pretty expressly discriminate on the basis of religion. In particular it says that no, quote, direct or indirect
appropriation or payment for any sectarian purpose
or to aid any church or school controlled in whole or part by any church, sect or denomination. You know, I’m not sure much is gonna turn on the specific text of this provision, but, like I said, it’s in the
universe of these provisions, it would be a tough one to, I
think, for the state to defend because it’s not just
that a religious purpose, it specifically says
that if you give money to a school for any purpose as long as the school is controlled by, even in part, a church, then that’s prohibited by the
Montana state constitution. So confronted with that
Montana state constitution, the Montana Department of Revenue adopted what it called Rule One and said, “Okay, we have this statute that our state legislature passed “that purports to make
these funds available “to any private school in the state, “but we’re gonna basically
have a rule that says “the money can’t go to religious schools.” So it can go to private
nonsectarian schools, but it can’t go to any
of the religious schools. And that administrative Rule One is what was originally challenged as violating the federal
Free Exercise Clause and the federal Equal Protection Clause, and I think the federal
Establishment Clause to boot. The original trial court
said that that rule interpreting the state
constitution was, in fact, a violation of the federal Constitution. But then on appeal to the
Montana Supreme Court, the Montana Supreme Court
essentially said no, and the legislation, not just the rule, but the entire legislation
essentially is invalid because of the state no-aid clause. So kind of a interesting wrinkle on this, although, as an administrative matter, the state is clearly
expressly discriminating against the religious schools, the ultimate remedial holding
of Montana Supreme Court is to say, “Nobody gets this. “We’re gonna take everybody’s
ball and go away.” So nobody gets this money
for private religious schools or private sectarian schools. (Irv mumbles)
Secular, sorry, yes. So there’s a cert petition filed. The state makes a big deal out of the fact that the Montana Supreme Court decision effectively renders the law neutral because nobody gets any money. At least four Justices
are entirely unimpressed with that argument and
grant the case anyways. And I realize I’m telling you all things that you probably know, but there are really two
precedents that matter here, both decided seven to two
in opposite directions. There’s Locke v. Davey from 2004, where Chief Justice
Rehnquist writes an opinion, a very narrow opinion, that says that Washington State
is within its authority to use its state
constitutional amendment to say that we’re not going to
give scholarship funds that are neutrally available to students who wanna use the funds to study to become ministers. The Court essentially says, “Look. “Even if this were fine under
the federal Constitution, “sort of Establishment Clause concerns “are at their zenith when
you have state funding “of somebody becoming a minister. “And so we’re gonna have
some play in the joints here “and the states can
essentially be more hawkish, “if you will, about
Establishment Clause concerns “than the federal government. “So that’s okay.” But then much more recently
in Trinity Lutheran, a different seven to two opinion written by a different Chief Justice says that Missouri cannot discriminate when it hands out essentially funds to make playgrounds safer with respect to church playgrounds, and the Court has the
famous footnote three in that opinion that says this is an opinion about
playground resurfacing. (Paul Smith snickers) An interesting constitutional
doctrine in and of itself. You know, look, I think that, to me, the fact that the Court granted this case probably tells you a lot about how the Court is
gonna decide the case. Mean, this was not a perfect
vehicle to consider this issue, and I think the fact that the
Court considered it anyways, I mean, tells you certainly what at least four Justices were thinking, but probably what five
Justices were thinking. The only other observation I’ll make before kicking it over to others is, you know, there’s an interesting sort of path dependency, I think, in the way these cases have come up. If you go all the way
back to the beginning, in the very first Wisconsin
School Choice provision, the very first Wisconsin
School Choice provision was a pilot program that
was expressly limited to non-sectarian schools. It was challenged on Free
Exercise Clause grounds, and it essentially, that
challenge went nowhere. So I think from the
standpoint of the mid-90s, the idea that school choice
might not only be consistent with the Equal Protection Clause but any state discrimination between and among the schools that are eligible for those programs would itself be a federal
constitutional problem, I think was probably a
nonstarter in 1995, ’96. You fast forward, and it seems like there may well be five Justices that are willing to say
that if you’re a state and you’re gonna have these programs, you have to make it available to nonsectarian and
sectarian schools alike. That’s a command of the
federal Constitution. Yeah, there’s a little
play in the joints there for the states, but not much. I think part of the explanation for why we’re in a very
different place is, it’s a different court
and a change in personnel. But I do think there’s
a doctrinal point here that does matter. And I’ll say, I should have said earlier, I filed an amicus brief on
behalf of the challengers here. But I do think that once
the Court basically says that there’s no
Establishment Clause problem because it’s indirect aid,
there’s a circuit breaker between the state sending the money to the religious organizations, the money only gets to the
religious organizations because of the intervening decisions of parents, et cetera, et cetera, once the Court says all that, then the state’s interest, even in abiding by its own constitution, just doesn’t seem very compelling anymore. And yet, the discrimination
from the parental standpoint is absolutely direct. Mean, at least when Rule One was enforced, they have this scholarship
and they can use it, unless they decide that the school they wanna send their kid to is a religiously-affiliated school. And then they can’t have it. So I do think one of the things that works against the state here is, by virtue of those Establishment Clause
decisions of the Court, the state’s interest looks pretty diluted. And yet the individual interest in being free from discrimination seems like it’s still pretty robust. – All right, so others who
have thoughts on this one? Let me just ask Paul, I noticed right at the outset you said this is not just religious purpose, but it’s also religious status. Do you think the Courts
would see a distinction between one that was
for a religious purpose and one that draws the
line based on status? And if so, why couldn’t this
case be reconceptualized as being use for a religious purpose? – Well, so I think they
could draw that distinction. I think that might be a distinction that they wanna draw just because, I mean, another way of
asking that question is, do you think they’re gonna
overrule Locke v. Davey in this case? And I think the answer is probably not. They might leave it on life support. But I don’t think the Chief is looking to unnecessarily overrule
seven to two opinions written by Chief Justice Rehnquist. And so I would predict that Locke v. Davey sort of survives this round– – But narrowed just to ministerial
situations, essentially? – Essentially yes. And then I think the religious purpose versus religious affiliation
kind of neatly works because the Locke v. Davey facts are sort of the epicenter
of a religious purpose. And I think at least some
of these schools would say, and some of the parents,
frankly, would say, “Look, this is really about
getting a secular education. “I mean, that’s why we’re
motivated to pick this school. “We think it’s the best
education for our child.” You know, they might get
one class of religion, and some parents might say, “Frankly, “I’d rather do without that. “I’m Lutheran and it’s a Catholic school. “But it’s a heck of a lot better “than the public school
I had as an alternative.” So I don’t think, you know, I think the Court could sort
of set the case up that way. And I’m not sure it would be super easy for the state to just
say, yeah, same thing. – Other comments on this case? – I, oh sorry, go ahead.
– No, go ahead, Roman. – No, I was gonna say it seems like a very messy case to take. I mean, partly for the reasons you said. And maybe just elaborate on that, one of the oddities of the case is that the net result of the
Montana courts’ decision-making is essentially that
everyone’s treated the same. No one gets the benefits of the program. And so it’s not like Trinity Lutheran, where the upshot is, you know, we wanna give money to some entities but we don’t wanna give it
to the religious entities. I just wonder, I think doctrinally it probably doesn’t matter because the reason that the
Montana courts ended up that way is by enforcing this Blaine amendment or quasi-Blaine amendment provision. But I just wonder whether
that weird wrinkle to the case might somehow complicate
the decision-making process. I don’t know, Paul, if you
have a thought on that. – Yeah, you know, I guess I
have two thoughts on that. One is, I definitely, you know,
a lot has been made of that. And I think the state probably plans to make something of that
in its merits brief as well. But at the end of the day, I’m sort of less impressed
with that being a problem. It’s like an atmospheric problem. But at the end of the day, you know, the parents still didn’t get
to use the scholarship funds because of the application
of the state no-aid clause and the fact that the
remedy essentially created a lot of collateral
damage for other people who wanted to use it to send their kids to sectarian private schools. I don’t know that that really,
like, ultimately matters. And so, to me, it’s a very good reason not to use this as the case to kind of revisit, or
to clarify footnote three in Trinity Lutheran and all that. But having this all been
fully been ventilated at the cert stage, boy,
it seems, like I said, at least four of them are past that. That doesn’t mean you couldn’t have some compromise with
five Justices deciding to dig the case at the last minute because somehow that’ll look better. But, you know, it does seem to me that this is probably something that has been fully
ventilated at the cert stage. – I tend to agree with
Paul that it’s likely that there’s at least four
and probably five or more who will try to figure out a way to get over this problem. It’s not that the parents don’t
have Article III standing. They do. They were denied this tax credit. It’s that the claim is that
under the Free Exercise Clause as the Court interpreted
it in Trinity Lutheran, you need some discrimination. And in Montana now, there
is no discrimination. If you go a secular school,
you go to a religious school, you’re being treated the same. And so it doesn’t seem like there’s any constitutional violation
at the end of the day. It’s, this really most of you know that this raises the
specter of a very infamous and disfavored precedent,
Palmer versus Thompson, where a municipality closes
down the swimming pool rather than allow it to be integrated. But it appears in the law
all the time, of remedies. A state sets up a public forum for speech and then a few very controversial
speakers wanna get in and the courts say you
have to let them in. But it’s up to you. You can either shut down
the forum altogether or let everyone speak, or
similar sorts of things. You can either ratchet up or down. There’s this famous Supreme
Court case in the religion area where Texas was giving tax credits to religious periodicals but
not non-religious periodicals. Court said you can’t do that. But Texas can either decide don’t give any the benefit at
all or give it to everybody. So this is a pervasive issue in the law, and the Solicitor General’s
briefing anticipates Montana and spends three or four pages trying to explain why this
case doesn’t implicate all of those. But I do think it would
take a little bit of work. But I agree with you that
there’s probably five Justices who wanna do that work
and get to that point by hook or by crook. And then I do think, as
the SG also suggests, that the Court doesn’t need
to get into the question of whether a use restriction, you know, you cannot use the
funds for religious teaching, would be constitutional or not because the Montana
constitutional provision, as Paul pointed out, is
an identity one, right? It is a provision prohibiting
money from going to churches and church-run institutions,
not just schools, full stop. And the Court in Trinity
Lutheran seemed to think that there’s, as Paul suggested, no really good reason for
states to prohibit churches from being eligible for funds that are available to
analogous private institutions. And that is, as Paul also suggested, I mean, it really is
something I’m writing on now, really is an extraordinary about-face, a major change from the
first 200-plus years of our tradition. It’s not an accident that 39 states have constitutional
provisions prohibiting money of some sort of another, not
necessarily indirect funds, from going to churches. And it’s not all because all of America was for 200 years anti-religious. That’s not the reason. The original reasons for that– – That’s a pretty big part of the reason. I mean, it’s not accident that 39 states have these provisions. – Go back to 1776– – Most of ’em were enacted in a period in the immediate wake of the failure of the federal Blaine amendment. And they are as anti-Catholic
as the day is long. – That’s just not true, okay? The vast majority of ’em were enacted from 1776 until 1850 or so. Many of the states have these. As Paul points out, even the Montana one, which was enacted in the
wake of the Blaine amendment, was not limited to schools. It was more broadly, with
respect to all churches, most of which are
Protestant, not Catholic– – Yeah, but it was really easy to limit it with respect to the Protestant churches because the public schools were teaching Protestant Bible at the time. – Yeah, but it’s ’cause– – So this was all done in
an effort in these states to get after this idea
that they didn’t like all these Irish immigrants coming over and demanding equal treatment
for Catholic teaching. – I think it’s fair to say that, regardless of the merits here, more Justices agree with
Paul’s account of the history than they do with mine right now, or at least are worried about it. And I agree with Paul that there was some anti-Catholic animus that animated some of these provisions in the late 19th century that was unacceptable
and unconstitutional. But it is really striking that the reasons for these provisions going
back to the Founding, which were mostly to protect
religious institutions, not to disfavor them, no one will have any purchase
with the Justices today, which is why Trinity
Lutheran was seven to two. It just, that seems like
a paternalistic idea now. If the churches wanna be corrupted by the conditions that come with funding, that’s their choice and
it’s no business of states to try to be erecting a
high wall of separation for the protection of
religious institutions. It’s a very interesting shift in the Court’s understanding
and jurisprudence. – I have no views on the history, and I think that Paul’s judgment about what the Court’s gonna do is right. But I’ll just add one thing
which I’ve always thought was super interesting
about Locke versus Davey, which is this play in the joints language that Paul picked up on, and, you know, is there play in the joints in the First Amendment religion
clauses and what is it? So the idea was, we don’t, in Locke v. Davey as I understand it, we don’t want everything to either be, either it’s barred by
the Establishment Clause or you have to do it under the
Free Exercise Clause, right? Like, hopefully there’s
some separation there. And you can imagine a
view of the Constitution where those clauses just
have very little effect, like you can’t bar someone from actually practicing their religion, you can’t establish a state religion, nothing in the middle is covered. That’s obviously not the place we’re at. We’re at a place where the
two are much closer together. But for me, as someone who’s
not enmeshed in these issues perhaps as much as some of
the others on the panel, like that’s the
interesting thing to watch, which is, what if any play in the joints is this Supreme Court recognizing? – Yeah. (woman speaks indistinctly) – You know, despite the healthy
debate that Marty and I had, I don’t think that’s really
how the case is gonna go off, which is, I don’t think they are going to try to figure out whether
the so-called original sin of the Blaine amendment is the
basis for invalidating them and kind of wiping them off the books. So I think they will simply say that you can’t use it to discriminate, and they will probably limit
the holding in this case to the indirect aid cases. But I’m not sure that
it actually stops there, which is to say, I’m not
sure there’s going to be, you know, this is a
prediction now, obviously, but I’m not sure there’s going to be a lot of play in the joints left in the wake of this decision. ‘Cause I think, you know, if a state case where it was, like, a direct aid but the kind of direct aid, I don’t think this Supreme Court would have any problem allowing. ‘Cause sort of a classic case is, you know, suppose there’s, like, some kind of government program that basically, like, is to
restore a whole neighborhood that was wiped out by a flood. And so they give direct aid. They give direct aid to restore a bunch of private buildings,
and one of the buildings wiped out by the flood is a church. So they give money, you know, the same money available
on a very neutral basis to all of them. If a state came in and said,
“Yeah, we’re not gonna do that “because of our Blaine amendment,” again, I’m out on a limb
’cause I’m already assuming how they’re gonna decide this case and then how they would extend it, but I think the mood music of the Court is that they would probably say that that’s just discrimination
on the basis of religion and that’s forbidden by
the federal Constitution. – I agree with Paul on that. And I also agree that, in this case, the Court’s most likely
to take the narrow way to begin going there, which is basically what the SG’s brief reflects. – Is about indirect aid? – Yeah. – Is just that this, if
they get over the equality, the nondiscrimination point, it just seems to follow
almost from Trinity Lutheran. And the only difference
is that it’s schools involving education rather than just kids playing on the playground. – It does seem like it’s
getting hard to distinguish at that point.
– Right. And so it’s not, they
won’t make it a use case. It’ll just be, you can’t discriminate on the basis of church affiliation. That’s what the SG urges. – Okay, so I’m just a little confused, maybe, with the answers. But is the gist of this
decision going to be that there’s a Free Exercise violation if I give direct aid
to nonreligious schools in the form of teacher aid or something and I don’t give it to religious schools? – Not yet, but I agree with Paul that that will be the writing on the wall for the future cases. You know, with this Court. (woman speaks faintly) Well, they have to get over, right now that’s a violation of
the Establishment Clause in many cases. Not in the fire, well, under the doctrine, the precedents that are
currently on the books, they’d have to first say that’s not an Establishment
Clause problem. And then they’d have to take the next step and say, and the state can’t
decide to do otherwise. So the direct aid cases would be the two-step process. They’ve already taken one of the steps when it comes to indirect aid. (man speaks softly) – I certainly don’t think so. And this is kind of maybe
part of my response to Marty. I tend to think that the sort of, the remedial issue in this case is kind of less of a problem
than maybe meets the eye, because I think this would
be a different situation, and I think the Court would
have some real work to do if what had happened is, you know, let’s say there was this
intermediate court decision that basically says, under
the state constitution, this can’t go to the religious schools, and then the state sort of said, “You know, there’s only, like, one or two “private nonsectarian
schools in the whole state. “So if we can’t do that, “let’s just call the whole thing off.” And the legislature did that. And then there was an effort to continue to make the challenge that
now the legislature’s doing it and it’s all because of
the religious animus. I think that’s a tougher case than what at least I
understand happened here, which is just, the
state supreme court said there wasn’t a state no-aid problem, and then the remedy for
that just happened to be to wipe out the whole thing. – Though interestingly, the Montana Supreme
Court purported to do it on the basis of legislative
intent, severability, right? The legislature would have wanted nothing given the choice between just secular and nothing at all. So we’re kind of close to that situation, but I don’t think– – I think there’s a material difference, ’cause I think one is just, you know, it’s a direct remedial result of a holding based on a state no-aid clause. So it seems to me it’s
easier to get there, whereas. In all events, I think that scenario, where the legislature pulled the plug before it got to the Montana Supreme Court is one step removed, and what you’re talking about
is two or three steps removed. I don’t think–
(Marty speaks softly) Yeah. – I don’t think that the Court would, if it rules as some people think it will, in this case would think if a legislature sits around and says, “Should we have a program or not?” And they say, “Well, if we have a program, “it’s gonna lead to this result,” and then so they don’t adopt a program at all in the first place, I can’t imagine that the
implication of this decision would be that that’s unconstitutional. And therefore they have
to create a program. – Yeah. – [Woman In Red Jacket]
Several of you have noted the difference in the Court’s approach in the last 20 years or so. But it’s even more profound than that. If we look at the some
of the big (mumbles) that cases that we’re talking about, Locke v. Davey, instead,
they were not written by the Court’s liberals. They were written by the
Court’s conservatives. So what has changed? – Justices? (chuckles) I mean, really, Rehnquist was famously weak Establishment, weak Free Exercise, lots of play in the joints. Scalia was certainly getting
there as well, right? Smith is an indication of that. They wanted to give government
discretion both directions. And these Justices seems to, I don’t think that, you know, a lot of people are talking about whether they’ll overrule
Smith, the peyote case. I don’t think they will. I think they can invigorate
the Free Exercise Clauses. They’ve been doing in masterpiece in Trinity Lutheran and Hosanna-Tabor, without overruling Smith, just by carving out different
little areas of protection. They are inclined to
be weak Establishment, strong Free Exercise. That’s just where they’re coming from. And in some of them, I
don’t know how many of them, truly do think that states’ legislatures, constitutional conventions, administrators are extremely anti-religious
and hostile to religion. And they think that that’s
a problem to be stamped out. I don’t think they’re right about that, but I’m not on the Court. – Yeah, and I also think just, you know, I think there’s something
about what Marty says about where Chief Justice
Rehnquist was on these issues. But I also think that Locke
v. Davey might have been sort of in the Dickerson tradition of the Chief keeping a case
just to write it very narrowly. And if that’s in fact what he did, his former law clerk is
taking full advantage of the fact that Locke v.
Davey is written very narrowly. (Marty snickers) – Other questions? Okay, so let’s move on to Roman and? – Sure. I’m gonna talk a little bit
about the Bridgegate case. But first just a quick word
on the criminal docket. I think there are a lot of criminal cases on the docket for this term. I was looking at the SCOTUS blog rundown, that Roy Little says
that 20 of the 50 cases that have been granted are criminal cases. I think that sort of depends
on how you characterize them. But there’s certainly a lot of them. I think in the first day or
the first week of the term, there are gonna be a couple big ones, including the case about whether there’s a
unanimous jury requirement that’s fully incorporated
against the states. That had potentially very significant practical ramifications. The Kahler versus Kansas case about whether states can
abolish the insanity defense. There’s also the case
about the D.C. Sniper and life without parole
sentences given to juveniles. To me, the most interesting
criminal case of the term is the Kelly case, the Bridgegate case, which I’m sure many of you remember very, all the gory details. This is about the prosecution of senior Christie Administration
officials in New Jersey and senior Port Authority officials who famously adjusted the traffic lines from New Jersey heading onto
the George Washington Bridge into New York in order to create traffic problems for the town of Fort Lee because the mayor of Fort Lee had gotten on the wrong side of Governor Christie. I think he didn’t endorse
him in the previous election. And so that’s kinda what
the dispute is about. But really I think the
case is about the scope of the federal fraud statutes. The government charged
this case as a fraud, as a mail and wire fraud case under a money or property theory of fraud. And so the case is gonna
be sort of the next in a longer line of cases addressing how aggressive,
creative can prosecutors be when charging those statutes, how broad are those statutes? Just to go back to the facts briefly, I think the basic layout is, there are 12 lanes going from New Jersey onto the GW Bridge into New York. Usually, by some sort
of political agreement reached a long time ago,
three of those lanes had traditionally been reserved
for the town of Fort Lee and for traffic coming from
Fort Lee onto the bridge. Because of the dispute
with the mayor of Fort Lee, senior Christie Administration officials and one of the New Jersey appointees, a senior official at the Port Authority, decided that they were gonna conduct a quote, unquote traffic
study, so they called it, which was instead of giving
three lanes to Fort Lee, they were gonna give one lane to Fort Lee. And that gave rise, I think,
to the infamous email, whatever it was, that time
for some traffic problems in Fort Lee, that the
co-conspirators sent. So they implemented this policy. The predictable result was that there was massive traffic in Fort Lee, everything was backed up,
it was a total disaster for the residents of Fort Lee. And a few days later, it was fixed. Once the investigation happened and the facts came out that this was really done
for a political purpose, not for the purposes of a
legitimate traffic study, the US government decided to prosecute the officials involved for committing mail and wire fraud. And their charging theory
was pretty creative. They basically said, to
establish mail or wire fraud, you have to show that
there was a deprivation of money or property. And so they said that the property here was the right to essentially
control the traffic lanes, that basically the
officials had told lies, both internally and to the public, about what they were doing,
why they were doing it, and they’d done that to
deprive the state of New Jersey of its proper legitimate
allocation of the traffic lanes. It also deprived them of property in the form of the wages and
salaries of the officials that were involved in conducting
this phony traffic study, and essentially that was
basically their theory. The jury convicted them,
the Third Circuit affirmed. Jones Day representing
one of the two officials filed sort of the lead
cert petition in this case, and the interesting thing
about the cert petition and now their merits brief,
which has been filed is, it basically leads with
a major policy argument. And the whole theme of the brief is that this cannot possibly
be a federal fraud crime. You can’t say that public officials commit mail or wire fraud whenever their public
reason for doing something is different from their private reason, and their private reason is
some base political motive and their public reason
is about public policy. And so they say this whole theory of fraud is gonna criminalize everything. Some of the examples they give, if the Secretary of State
appoints his best friend to a senior diplomatic post and he says that he thinks the best friend
is the most qualified person, if the Secretary does not actually think he’s the most qualified
person, there you have fraud. If a mayor in a small town orders that a pothole be repaired
in a certain area, and he says, “This is because I think “this is the worst pothole in town,” when really it’s because the area is home to all his supporters,
that’s a fraud violation. And the other example that they lead their opening brief with is, if the Commerce Secretary
adds a question to the census and he says it’s for reason X and really it’s for reason Y, then he has, under the
government’s charging theory, committed a federal felony. – Very creative.
– Very, yeah, right. So their main argument is essentially this policy slippery slope, absurd consequences type argument. And then in the second
part of their brief, they explain why this policy argument maps onto the doctrine. Essentially what their main pitch is that the government needs
to show the deprivation of a property interest. And they say that the intangible right to control the traffic lanes or the fact that state
employees had to use some of their time and
therefore and theoretically, a portion of their salary, on
conducting the traffic study, that that was not a deprivation
of property from the state. So doctrinally, the case is really about, is a dispute over what counts as property. The government comes back and responds, at least in their
opposition to certiorari, which did not carry the day, basically saying, “Look, this
is a different type of fraud, “but it’s basically fraud. “You’ve got material
lies that are being told “to induce certain behavior “and to ensure that certain
behavior can happen. “And the result of that is to take away “from the Port Authority, “take away from the State
of New Jersey it’s ability “to execute public policy
on legitimate grounds.” And this was all a
pretext, it was all a lie, it counts as fraud. Stepping back from all that, I think that this is a strange case for the Court to take in some ways, in the sense that there was not
a super clear circuit split. But I think this case
really should be seen as the latest in a long line of cases, especially recently,
where the Court has been granting certiorari,
probably with the idea that to send a series of continuing, and maybe escalating, brush-back
pitches to the government about its charging theories. The cases that come to mind are, you know, the McDonnell case from Virginia, the Yates case, which I
had the great pleasure of arguing on behalf of the government. – Brilliantly, I might add. – Yeah.
– Yeah, no, it’s true. – Yeah, that’s four votes that are gone. – Official intangible,
that’s still on your side. – Thank you, Nicole.
– Yes. – That was the undersized
red grouper case. – It was the best argument in
the red grouper case, ever. – Yeah.
(panelists chuckle) The Bond case, which I think Paul handled. – That was a fun– – Where the government
prosecuted a violation of the statute implementing
the chemical weapons treaty, and it was involved,
essentially, a dispute over a mistress and some chemicals put on a doorknob or a mailbox. – Very dangerous chemical. – So in all these cases,
the Court seems to be granting review kind of
because it sees a statute, it thinks the statute has
a basic core application, and it sees the government prosecutors really pushing the envelope
in their charging decisions. They don’t seem to be taking these cases ’cause there’s a circuit split. They seem to be taking these cases ’cause they think that criminal
law is being over-enforced, maybe criminal law itself
is on its face too broad. And so I think that
the unifying principal, behind those cases at least, is this theory of overcriminalization and over-aggressive
prosecutorial discretion. I think this case probably fits in in that line of cases. I will say that I, if I were back in the Solicitor General’s office, I’d be not looking
forward to this argument. I was with the SG on a
panel a week or two ago. He is recused in the case because he was at Jones Day and may have been involved in this particular case when he was there. But he did not look unhappy that he would not be standing up for the United States in this case. So I think I’ll stop there. – Anyone else on this particular issue? – I would just note that, whenever (mumbles), he’s always talking about what it was like to be defending the charging decisions of the federal prosecutors. And he would go around, he tells me, yelling at them in various speeches. And they all said, “Look,
they could only reverse “one out of a hundred. “We get 99. “You’re gonna have to live with it. “That’s the way it is.” That seems to be the reality. – Questions? Okay, I’m gonna talk about New York State (drowned out by static
crackling) Pistol Association. In District of Columbia versus Heller, the Court held the Second Amendment protects an individual’s right to possess a handgun for
self defense within the home. Whether the holding or
the logical implications of the decision extend beyond that, or even well beyond that,
has been a matter of debate. Since Heller, the lower
courts have struggled with questions such as
the extent to which states and municipalities may
prohibit individuals from carrying guns outside the home. The Court has refused to grant certiorari in any case presenting that question. Up until now, many have speculated that the Court’s reluctance to grant reflected uncertainty on the part of both the left and the right about how Justice Kennedy would come out. And so when Justice Kennedy retired, many anticipated that the
Court would be willing, and perhaps even eager, to jump back into the Second Amendment. And then along came this little case. New York City generally
permits possession of a handgun only if a person has a premises
license or a carry license. A premises license
generally limits possession to the home. When this suit was filed,
there were exceptions, but they didn’t permit someone
with a premises license to transport a handgun to a
second home outside the city or a shooting range outside the city, even if the gun was transported
in a locked container, unloaded and separated from ammunition. The restriction was
challenged as a violation of the Second Amendment
and on other grounds, and the Second Circuit
upheld the restrictions. After the city granted certiorari, the city and the state changed their laws to permit persons with premises license to carry their handguns to second homes and shooting ranges outside the city as long as the handguns
are locked in a container, unloaded, and is
separated from ammunition. Once those changes went into effect, the city suggested the case was moot. That motion was opposed
by the challengers. And the Court denied the
city’s effort to delay briefing until that suggestion of
mootness was resolved. In their briefing, the
parties appeared to agree at least to some extent on the methodology for resolving Second Amendment challenges. The Court should look to
the text of the amendment, its framing history and tradition first. If those sources don’t resolve the issue but Second Amendment rights
are sufficiently implicated, then the Court should
apply at least some form of heightened scrutiny under which the city
would have to demonstrate, at the very least, that any restriction is substantially related
to important interests. So that’s where the agreement ends. The city argues that text,
history and tradition demonstrate there’s no freestanding right to obtain firearms
training or target practice wherever a person wants. Any right is limited to
obtaining the training necessary to use firearms effectively, a right not impaired, the city says, by its former restriction. Similarly, the city argues
that the right to keep handguns at a second home does not apply a right to carry a firearm
from one home to another. A person could simply buy a second firearm and keep it at the second home. The challengers, by contrast, say the text, history and tradition establish a far more robust Second Amendment right to transport or carry a handgun to wherever it may lawfully be used. At the second step of the analysis, the heightened scrutiny,
if it gets that far, the city argues that
the former restrictions were substantially related to interests in limiting the risk of gun violence. The challengers respond that
the city’s other restrictions, including the requirement that any handgun must be locked in a container, unloaded and separated from ammunition, already adequately address
any public safety concern and that this additional restriction, found nowhere else in the country, adds nothing meaningful. Now if the Court reaches the merits here, it seems likely that it will hold that the restrictions,
former restrictions, were unconstitutional. The significance of that decision depends on how the Court gets there. Will the Court recognize a broad right to carry outside the home, as the petitioners urge them to, calling into question all restrictions on carrying a gun in a public place for self-protection, for example. Or will the Court say the
city’s former restrictions are unconstitutional because
they are so marginally related to promoting public safety that they fail any possible
constitutional standard, deciding this case and little else. A broad ruling would obviously
have immense importance. A narrower ruling not so much. It’s also unclear whether the
Court will reach the merits. Ordinarily, a party that
voluntarily changes practice in response to a lawsuit
bears a heavy burden to show there’s no reasonable expectation that it will resume its former practices if the case is dismissed as moot. The city says voluntary
cessation standards, which is what those are, don’t apply when the government changes the law, particularly when an
independent government actor changes the law, as the state did here. And it argues that the case is moot because changes in both city and state law give the challengers everything they wanted in the litigation. The challengers say the new laws retain several objectionable features, including a requirement
of continuous transport and carve-outs that allow the city to prohibit non-residents from
transporting a licensed gun in and across the city, and they say that neither
the city nor the state can be trusted to adhere
to changes they have made. The Court is going to have to decide this question of mootness against the backdrop of several recently highly publicized
episodes of gun violence and in a heated debate
between the two parties about solutions to gun violence. For some, this is a reason to dig in, plunge ahead and decide the case, for others, sitting this one out may be an inviting prospect. The Court has scheduled
the suggestion of mootness for consideration at the first conference. At the same time, it
has scheduled argument for the December sitting. It’s always difficult to read
too much into these things. But I suspect this means the Court will push the
decision on mootness off until it hears argument on the merits and expect the parties to
spend at least some time, or part of their time,
on the mootness issue. And with that, I will
turn it over to the panel and particularly invite Paul to weigh in, because I wanna make sure
I didn’t overstate anything in one way or the other. – No, Irv, you did a admirable
job of stating the case and even finding areas of agreement that I’m not sure I’d
fully perceived before. (Irv laughs) The only thing I would say on this is, if the Court does carry the mootness issue to the oral argument
and does kind of, like, ultimately address that one way or another in a published opinion rather than just kind of dismissing it as moot
without further explanation, I know from the press’s standpoint, that won’t be the sexy part
of the case by any stretch. But I wouldn’t sleep on the mootness issue because I actually think this is probably kind of a more important issue and maybe a more important issue because of the nature
of the Court right now, because you do have a Court that I think a lot of left-leaning jurisdictions are not gonna necessarily
wanna litigate in, especially after a cert grant. And so you can imagine a lot of policies passed by, let’s just
say hypothetical places like Berkeley and San Francisco that do certain things, get
affirmed by the Ninth Circuit, a cert petition is filed,
the Court grants it, and at that point, a lot of
pressure’s brought to bear on Berkeley and San Francisco to just sort of pull the
plug on the ordinance and don’t get it invalidated
for everybody nationwide in a Supreme Court decision. So, you know, I don’t think
the facts of this case with a relatively kind
of conservative Court are just gonna be kind
of a one-off set of facts on the mootness side of the case. I do think there are actually, I mean, I won’t completely, like,
law geek out on you, but there are some
really interesting issues about whether mootness is really
an Article III requirement or is really kind of more prudential, and there’s also just kind of this question about how does the Court, with its discretionary jurisdiction, deal with these cases going away? I think if you’re a court
of mandatory jurisdiction, like Court of Appeals,
it’s pretty easy to say, “Look, we got lots of cases,
we got lots of work to do. “So if the city makes the
case go away, that’s great. “We got six other cases on the
docket today, let’s move on.” But I think if you’re a court
that spends a lot of time picking 70 or 80 cases a
year to hear on the merits for very specific reasons, and then jurisdictions start sort of making some of those cases go away, even when they’re not
the party seeking cert, I think the Court may
sort of view that practice a little bit differently. Obviously also have the prospect of a couple of cases,
or at least one case, where it’s the petitioner
that got cert granted but now seems to be having
second thoughts about that, specifically the Maui case. So, you know, it’s kinda interesting how a court of discretionary
jurisdiction views this. Do they view this as great,
the dispute went away, or do they view this, hey, wait a second. This is kind of frustrating
our review process. – I totally agree with that. I think the mootness
question’s fascinating. You’d think that the Supreme Court’s law would be super clear on that. But then when you find yourselves litigating the mootness issue, it’s, like, actually not that clear. So be interesting to see what they do. – Think the other person who found the mootness
question interesting was Senator Whitehouse. – Senator Whitehouse! (chuckles) – As many of you probably seen, he filed a well-publicized amicus brief that purported to come
as a Friend of the Court. But the Wall Street Journal said it was an Enemy of the Court brief. It said the Supreme Court is not well. It explained why at great length and then said that perhaps
the Court can heal itself before the public demands
it be restructured in order to reduce the
influence of politics. I think that’s, you don’t
have to be a total law nerd and get into this case
’cause the mootness issues. You can also appreciate
the political dynamic here in play as well. – I think if the Court is
having some of the concerns that Paul talked about,
about liberal jurisdiction sort of manipulating the
docket and that sort of thing, being told that they
don’t dismiss it as moot, they’re showing that they’re
completely out of control by Senator Whitehouse is
not exactly gonna help, I wouldn’t think. – Yeah, normally the Court
doesn’t like to be told what to do or threatened. That’s just a rule of thumb. – (snickers) You think? – [Man] I was wondering
why you think the Court (drowned out by ambient noise) Are they so desperate
to get to the gun issue that they just grab the first thing to come off (drowned
out by ambient noise), knowing that there are other must carry, or I mean open carry (mumbles) like the home cases, coming along. Why does this? – Well, it’s a super weird law. I mean, it was so restrictive. And sometimes they take cases just ’cause they seem crazy. But maybe you’re right. The other theory, of course, is that this is a case that
came at the right time, with a different court. I don’t know. (woman in red jacket speaks indistinctly) – I think at this point
there’s at least one petition on sort of a more standard carry challenge that’s fully briefed. – Where’s that from?
– New Jersey. So I mean, why is this case granted? Because four Justices think that this law is unconstitutional, is the first reason. And the second reason, it seems to me, is if you’re somebody like the Chief, this is a case that gives you options about whether to proceed slowly or whether to proceed at a medium speed or whether to proceed aggressively. And I think the Chief,
more than anyone else, likes options on the table. And if you just had a
carry case before you, it’s, like, okay, we’ve gotta decide now. Whereas if you have a case like this, you can figure you’re gonna have a pretty easy time on the merits, but you’ve got a lot of options about how to write the opinion. So it doesn’t splash down and
decide everything that day, but maybe it pushes out
in a particular direction and maybe it doesn’t. But you’ve got a lot of options. (man speaks softly) – Does he want to what now? Oh, I see, hear argument and then hold the other cases and then wait and decide. What’s that mean? I think we’re into the
realm of more speculation than I wanna do on this case,
but wouldn’t be inconsistent with his general proclivities to wanna move slowly, more slowly than some others
might wanna move on things. You know, and particularly in an election year term. – [Man In Checked Shirt]
To follow up on that, if the Court does decide
that (mumbles) is moot, would you then except them to deny cert (drowned out by ambient noise) is it more likely (drowned
out by ambient noise) – Come on. – I, look, I think it’s speculation. I mean, may be one thing
to just sort of say, to sort of, kind of,
amplify maybe something that Irv was getting at. I mean, we may get further insight into the answer to Pete’s question once we figure out what they
do with the mootness issue. Because if they say this case is moot, there are other cases available in line, and then that might lead to the conclusion that this was just the first in line and there’s nothing
particular special about it. On the other hand, if they found this case particularly attractive as a vehicle to sort of dip the toe back in the water of the Second Amendment after about a 10-year
hiatus after McDonnell, then there is no close
substitute for this case. And that suggests they might work a little harder to keep it. So I think you’ll be able
to kinda reverse engineer what they were thinking
when they took the case once you see what they do
on the mootness question. (woman speaks faintly) They get two exit ramps, like Irv said. They really like options. So they can, it’s on the conference as, like, a fully briefed-up motion. So they can, you know,
orders list, you know, however 100 pages the long
conference orders list is, somewhere in there,
case dismissed as moot. They can do that without explanation. They could do a variation of that, where they do it but somebody dissents. You write something and it’s
couple orders lists later. Or they can just deny it. Or, you know, probably, maybe
the most likely scenario, they just carry it over. – [Man In Suit] Well,
the can’t deny it now, having put it on the calendar
(drowned out by ambient noise) – Sure they can. – Deny the motion to dismiss, you mean? – They could deny the
motion to dismiss as moot. Or they can grant the
motion to dismiss as moot. I just think the most likely thing to happen at this point is, they’ll carry it with the case, which is scheduled for
argument in December. And that way, not only do you get to hear from the parties about this, but then you get to ask
the Solicitor General what the Solicitor General
thinks about mootness, who probably otherwise
isn’t going to tell them what the Solicitor General
thinks about mootness. – [Man In Tan Pants] And so a poor old Supreme Court reporter’d have
to worry at every conference about whether there’s something there, rather than finding out
something after the 1st about what they’ve done with
this motion about mootness? – That’s a really good question. I don’t know whether,
if they carry it over to the argument, I don’t know
whether they’ll signify that. – They’ll signify that. I mean, ithey would be kind
to everyone if they did. Yeah, no, it would be kind to everybody. – If they said the motion
for mootness is deferred– – Sure. (Irv and Paul speak over each other) to say this case is hereby
(drowned out by ambient noise) – They do that when they
note jurisdiction, right? So they don’t say that the–
– Postponed. – They’ll postpone.
– Right. – And so it would be nice
if they told everybody that. And they could also say the
parties should be prepared to discuss mootness. Either that or they
could just pose it as a, you know, the parties
shall address at argument the following question, is this case moot? But yeah. (woman in sleeveless top speaks faintly) – Probably right. I mean, you know, unless they really kinda treated mootness after the argument in a summary fashion, which I’ve seen them
do that in other cases. I’m not sure I think that’s
a likely scenario here. But there have been cases
where there’s, like, a jurisdictional issue. You get to the argument, it’s 25 minutes on the
jurisdictional issue, four minutes a side on the merits, and then like a week
later, there’s an order just dismissing it as
per want of jurisdiction. – It’s not obvious that
many of the Justices will want to hear a big gun case this term as opposed to after the election. But who know? Or maybe they don’t care. We just don’t know. (man speaks softly) – So if you’re hopeful–
– That’s a hopeful sign. – You’re one of those. All right, Marty on– – Yeah, I know we’re running late. I’ll try to be very brief. So Irv and I talked about, okay, which cases in the pipeline should we bring to your attention to make, because they’re likely to
be something this term. And most of our candidates
involve presidential power. So this is the other area of the law that I think, in addition
to the religion clauses, in which there’s been, or there could be, a very dramatic shift in jurisprudence between what we saw in the Rehnquist Court and the current Court. And so there are several such petitions which we’d be happy to talk about, a lot of them, in the
Q&A if you’re interested. The obvious ones are, there’s the case in the D.C.
Circuit involving Maysers, right, the subpoena to the
President’s accountants. There’s a similar case
in the Second Circuit involving Deutsche Bank, that subpoena to his
bank for bank records. There are other cases. Roman has a really excellent petition on the question not involving Trump, but involving that has
implications obviously, which is involving the power
of District Court judges to allow the disclosure
of grand jury material even outside the four corners
of the statutory provisions, about when such disclosures are okay. There are obviously a lot of things that could come up this
term, or that might not and the election might moot
out a lot of these questions. Or maybe not. But the one that I wanna talk about, the one that I think has the potential to be either the most
important for the long term, or at least be a bellwether, is a petition that Kannon
Shanmugam has filed, 19-7, the Seila, Inc. case that
most of you are aware of, in which last week the Solicitor
General acquiesced in cert. And this is a case about whether congressional
protections of independence of executive branch agencies or officials are constitutional and
under what circumstances. That is to say, it’s about
the unitary executive, something very dear to the hearts of many of the newer
Justices on the Court, reflected to a certain
extent in last term’s Gundy nondelegation doctrine case, which similar sorts of issues. This one many of you are familiar with. The issue, because in the
’80s it was a very big deal, the Reagan Administration thought
it had a sympathetic court for really imposing the idea that the Constitution
guarantees the President absolute control over
everything that goes on in the executive branch. And part of that control is the ability to remove officials if he or she believes just doesn’t like the way
they’re doing their job, beyond just the idea that they might be misusing their position
or not doing their job, but just disagreements about policy, discretionary policy decisions,
or policy preferences, with the official. And thought he had a sympathetic court. And in two cases, Bowsher v. Synar, and famously, Morrison versus Olson, not only was Charles
Fried in the SG’s office the Reagan Administration rebuked, they were rebuked seven to one in an opinion written by Chief
Justice Rehnquist ultimately. But you could see the writing on the wall in the Bowsher oral argument, where Justice O’Connor was incredulous they were pushing this idea, suggesting that it would
mean, for instance, that the Federal Reserve would be subject to presidential control. That seemed like an
academic question then. But obviously now it’s not so much. I mean, the threat that some President might want to actually control
the nation’s monetary policy, and to do so for
politically based reasons, is not a fairly acute sort of question. We can see what it might mean. This case involves the Consumer Financial
Protection Bureau, the CFPB, which was an idea proposed by Elizabeth Warren, of all folks. And Senator Warren’s idea would
have a multi-member board, just like most of the
independent agencies, like the Fed, the FCC, the FDC, et cetera. But for one reason or another, when Congress came to enact the statute, it provided for a single
director of the Bureau, who is protected from removal. The President may remove him,
or in this case it’s her, now only for cause, which Congress defined as inefficiency, neglect of
duty or malfeasance in office, a common formulation of
for-cause removal protections. Which basically the Court and Congress has understood over the decades to mean not for policy disagreements
but for misfeasance or not doing your job or being bribed or violating the law. The basic thrust of
Morrison versus Olson is that this question should be answered by looking to whether Congress
has left the President with sufficient tools to make sure that the laws are faithfully executed, and that a for-cause removal
requirement like this allows the President
that authority, right? It does allow him to remove if the person is not
complying with the law or is violating the law. But the President doesn’t
need to have the control over the discretion that that officer has. So this is being very frontally
challenged in this case. Many of you remember
that this issue came up before the en banc D.C. Circuit. A very split court decided
that it was constitutional. Brett Kavanaugh wrote the dissent, in which he argued that because
you don’t have to throw out all the independent agencies
that are multi-member agencies, you can preserve the constitutionality of their tenure protection. But when it comes to
single-member directors, such as we have here and in
only a few other instances in American history, that there’s something special about that that the President has to constitutionally have more control, what, Paul, I have to hear
your answer to this before you. – [Paul] I have to keep my separation (drowned out by ambient noise) – Maybe you need to listen to this, then. (laughs) – Thanks, Paul! – Thank you, Paul. That there should be, the
Court should draw distinctions instead of going whole hog and deciding that all for-cause tenure
protections are unconstitutional, at the very least just decide that, when it comes to single
director agencies, they are. And that was Judge Kavanaugh’s
theory in his dissent in the CFPB case in the D.C. Circuit. As I said, the SG has
now acquiesced in cert. The SG believes, and the
Director of the CFPB agrees, that the President’s
lack of control over her is unconstitutional, that
Congress had to give the President more control over the CFPB director. And that’s the issue before
the Court in this petition. I think it’s very likely to grant. I think both the SG and Kannon tried to get the case on the long calendar, but now it’s been scheduled
for the second calendar, on the October 11th conference. It’s not a sure thing
the Court will grant, but I wouldn’t be at all
surprised if the Court grants. And I wouldn’t be at all surprised if there were five votes to
go with the Kavanaugh theory, at least as an entryway
into a broader challenge to congressionally-imposed
or congressionally-protected independence of agencies and
officials within the government and a more full-throated attack
on Morrison versus Olson, Humphrey’s Executor, and the like, although I don’t think
this case will be the case in which the Court goes all the way there. I think it will take this, probably take this more modest step. A couple things to note
about this is that, like many of these areas, we know these Justices are
living constitutionalists. This is not based on text or originalism. This is just based on a theory of the balance of powers between
Congress and the Executive. And they are likely to, as
they do in many of these cases, go off on a theory of separation of powers that is not by any means prescribed by or precluded by the text. The text just has very little to say about to what extent the
President has removal authority that can’t be cut back by Congress when it comes to executive
branch officials. And interestingly, if the
Court does hold, I think, that the CFPB director has to be, that the President has
to have the authority to fire the director, remove the director even for policy disagreements, the SG proposes that the Court do what it’s done in other cases, like the Free Enterprise Fund versus so-called peek-a-boo case, which is simply to read the statute to cut out the for-cause
removal protection, to give the President so-called
at-will removal authority or absolute authority to fire, and therefore the CFPB would continue, but with the overhang of
the President being able to dismiss the CFPB director that he or she does not approve of. The irony, perhaps, is that
if a Democrat were to win the 2020 election, this would mean that that Democratic
President would be able to fire President Trump’s
appointed CFPB director, Kathy Kraninger, who right now is entitled to serve out this entire five-year term until the end of 2023. So in the immediate instance it might mean that a Democratic President
might get more control over the CFPB for the first three years of his or her administration. But that’s getting way ahead of ourselves. And I don’t think the Court
particularly cares that much about the next three years of the CFPB. I think I’ll open it up to the panel since we’re past our witching hour here. I have more to say, but. – In light of the time constraints, so I have, for people
who would like to stay, I have the abortion cases that
I’m willing to talk about. For those who have other,
more pressing matters, feel free to press away. And so too with the panel. If you’ve gotta go, you gotta go. – I can stick around and talk about the presidential power stuff if people are interested. Yeah. – [Man In Suit] Just some
of the pipeline cases. How likely is the Court to
take the electoral college? – The electoral college issue? Which?
– 10th Circuit case? (man speaks indistinctly) That seems like a likely
case, well, to me. – Likely? – Well, the Washington
State Supreme Court’s on the other side. – What’s the issue, what’s? – Knowing whether or not the
electors can depart from, are bound? Good to know that– – I was thinking (mumbles)
an elector does it and there’s an actual challenge to an actual elector (mumbles)? – That’s what the case is about. The guy was replaced as
an elector in Colorado, by the State of Colorado, and it led to– – I don’t know, I
haven’t thought about it. I defer to Paul, Irv, any others, Nicole. – Well, I think it’s certainly
being taken seriously. Given the timing and given the fact that there are two courts
on either side of it, it ought to be. It’s something that the
Court would be worried about. It’d be nice to know the answer. – A good question. Well. All right, yeah? (man speaks faintly) – If the Second Circuit
and/or the D.C. Circuit rule in favor of Congress, saying that either the accountant or
the banks have to turn over, have to comply with the subpoena, I imagine that the President,
in his personal capacity, mind you, will take a
petition very quickly and ask the Court to
hear it, but this term. They could decide not to, right? They could just deny cert. I suppose, if they think that that’s okay. Or they could be eager to
resolve it before the election. I have no idea what they would do. I really don’t wanna speculate. And on the merits, I think in those cases, the President’s claims
are exceedingly weak. I’ve written about it. But I don’t know whether that translates into a majority of Justices, a prediction about the majority, how the majority of
Justices think about this. I think if they adopt the argument being pressed by Mr. (mumbles),
Trump’s personal lawyer, which is a little broader
than the SG’s arguments, which is that Congress doesn’t
have a legitimate interest in overseeing or investigating the President of the United States, ever. That would be kind of a
big deal landmark holding. And I can’t see the Court going there. But I can see them taking
perhaps more modest steps to say if Congress is going to do this, the following conditions have to be met, procedurally and the like. I’m not sure. There’s a lot of, what
were you calling them? Off ramps that the Court might take. But I, I sort of suspect that this one, the Court might be reluctant to say, to cut back on congressional
investigation power, ’cause of course the shoe’s
often on the other foot, when Republicans control
the House of Congress and there’s a Democratic President. – Other questions about
things in the pipeline, separation of powers? All right. I’m gonna do the abortion cases,
hopefully briefly, for you. June Medical involves the
Whole Woman’s Health case, where the Court invalidated a Texas law that required abortion providers to get admitting privileges at a hospital within 30 miles of where
they perform abortions. The Court found there
was no health benefit, or virtually none, and
that it imposed a burden on women seeking abortions. June Medical involves a Louisiana law that’s exactly the same
as the one invalidated in Whole Woman’s Health. It appears undisputed that
if the law goes into effect, there will be only one abortion
clinic left in Louisiana and no physician will be left who performs abortions after 17 weeks. The District Court invalidated the law based on findings similar to those on which the Court relied
in Whole Woman’s Health. The Fifth Circuit reversed, concluding that the law did serve a valid, if minimal, credentialing function, and it concluded that the
various doctors’ failure to seek admitting privileges
was an independent cause for the burden that
women were experiencing. And the Supreme Court, as you all know, issued a stay by a vote of five to four. And the petition is on
the 10-1 conference. What will happen now is almost certainly up to the Chief Justice. I suspect there are four
votes to grant and reverse, and if granted, four votes to distinguish Whole Woman’s Health into
oblivion or overrule it outright. Some have thought that
maybe the Chief will think a summary reversal is in order on the theory that he will think it’s good to send a message that
only the Supreme Court can overrule its decisions. I don’t discount this possibility, but it seems more like
wishful thinking to me. I think the Chief would prefer, if he had all options available to him, to let this one sit on the
docket for the entire term, if he could, and then
decide what to do with it at the end of the term. The other possibility is
that the Court grants on 10-1 or shortly thereafter and the assault on Casey begins. The other abortion case
on the 10-1 conference is Box versus Planned Parenthood. For many years, Indiana
has required providers to give women seeking abortion certain information
that might persuade them not to have an abortion and to deliver that information 18 hours before the procedure. The Court has previously
upheld that kind of law and there’s no dispute
about the constitutionality of that kind of law. For many years, Indiana has also required women seeking abortion to
view an ultrasound image, unless the woman objects in writing. Women are typically, or were typically, provided the ultrasound on
the day of the procedure. And that requirement of
ultrasound on the day of procedure is not challenged in this case. What is challenged is the new requirement that the ultrasound image be provided 18 hours before the abortion procedure, at the same time as the rest of the informed consent information. The District Court found this placed an undue burden on women because before they could get their informed consent information at any one of numerous convenient centers, but now they can only
get them at four centers that have ultrasound equipment. So the gist of it is, instead
of one convenient trip and one long disruptive trip, the new law produces two
long disruptive trips. The court found this added
burden was not justified because the state could not show there would be any
additional mind changing from moving up the ultrasound date. The Court of Appeals affirmed. It seems very likely to me that the Court will
eventually grant certiorari in this case and reverse. Putting aside the complexities
of the undue burden test, it seems likely that five Justices will see real value in
informed consent laws and in having relevant
information conveyed in time for a woman to have a chance to think over the decision
in light of the information, even if that causes substantial burden. Since the ultrasound is just
another form of information, it will seem like common
sense to those five that it should be
delivered at the same time as the rest of the information. When this will happen
is a difficult question. I suspect this case will end up on exactly the same track as June Medical. So if the Court delays June Medical, it will delay this case. If it grants June Medical early, it will grant this case at the same time. And if it summarily reverses June Medical, it will summarily
reverse in this one, too. Happy to hear from all
the other panelists. Mine is, of course, pure speculation. – Yeah, I have a question. It’s a question for you. I agree with you, those are the options. What do you think is going to happen? (Paul and Irv laugh) Everything you wrote I
understand and agree with. I just, I want the next sentence. They do, too. – Yeah, I mean, look, I
might be wrong about this, ’cause I usually am when I’m
picking among three options that are basically, you know, who knows? So I’m gonna go with the
kick it down the road option. – You don’t think there’s any
option of a denial in both? Or right now denial, like
we’re just not ready for this? – No, I don’t. You know, I didn’t, did
I say that was an option? No, I didn’t. – No, you didn’t say it was an option. – Okay, so I must not have–
– Is there a fourth option? – Like, I cannot imagine four Justices on the Supreme Court who got
a fifth vote at the stay stage saying there’s not gonna be a right to an abortion in Louisiana anymore. I just, (scoffs) I can’t. It’s just hard for me to
see how you and they could, and it only takes four to grant, how they could let it be denied. Yeah. – [Man] So if they kick it down the road, what’s the basis (drowned
out by ambient noise) – I mean, so look, last
term what was the basis, when then kicked every single, I don’t know what they did to manage it. But they managed to kick DACA. When did you say it
first got on conference? – Like in December, maybe late December. – So it got granted in June. The sexual orientation cases were on– – The whole term.
– The whole entire term. So they don’t have any problem doing this if they wanna do it. You know, I don’t know what
they say to each other. (woman speaks faintly) These got on rather late, I think last term. So there may be only four kicks (Paul laughs)
last term. So, I don’t know. (man speaks faintly) It wasn’t ready, you’re right. So June didn’t get kicked at all. The other case got kicked
what, three or four times? (man speaks faintly) And if I’m on the right side of the Court, I’m gonna let that happen because? I just can’t imagine why I would if I were on the right side of the Court, said let’s take June where we could lose and not take this other case where we can, we’ll almost certainly win. So I just don’t see. I mean, maybe it could happen. But I don’t see why it would. Yeah. (man speaks faintly) Yeah. Yes, right. (man speaks faintly) So I think it serves both purposes. How’s that? Yeah. (man in blue check shirt speaks faintly) It would. Yeah, that’s why I listed that as a possible. But, you know, the problem is that, you know, they got his
vote at the stay stage. You know, I don’t know about at the merit stage. On June Medical, that’s
why I feels like for him a more attractive option
would just be to say, you know, the precedent
is what it is, and– – Summarily– – Yes. That’s why that’s an options. It seems like an easier one. – As opposed to, you can’t
say it’s a precedent anymore. You’ve dissented, after all, right? You can say, “I vote my conscience.” – I mean, he did vote to
deny in a same sex case that seemed like it was
controlled by Obergefell, even though he dissented in Obergefell. Yes? (woman in sleeveless top speaks softly) (Marty and Roman chatter softly) I feel like if they’re summary reversals, I could see that happening. If there’s not, then I’m not gonna predict that the Chief is gonna be
onboard with the June Medical. – [Man In Tan Pants] I believe
they’re saying the notion that the (drowned out by ambient noise) and that Whole Woman’s was written in such a narrow and kind of squirrely way (drowned out by ambient noise) by prior Justice Kennedy that actually it can be interpreted all these different ways, or do you think (drowned
out by ambient noise) – I’m very reluctant to say that Supreme Court cases
can’t be distinguished, because they always can. I mean, the question is, can they be distinguished given
the fairest reading of it? I think it’s tough. But can it be distinguished? Sure. (man speaks softly) Exactly the same law, I said. And there’s no doubt that
it’s exactly the same law. But under the test, the question is what effect does this
produce on this record, and what justification is
there for it on this record? You can obviously have differences depending on what the record shows. – [Man In Tan Pants] So you don’t think that what the Court said,
(drowned out by ambient noise) are always unconstitutional? – No, I don’t think they said that. But I think what they did say is that admitting privileges serve only the most minimal,
if any, legitimate purpose. And I don’t think that’s gonna change. And I don’t actually think
the Fifth Circuit said much different from that. It said it served this minimal
credentialing function, but it itself only said it was minimal. And the real action is gonna be on this other part of the case, I think, which is, you know, does
the fact that the doctors, or the findings about (coughs) whether the doctors could
actually get admitting privileges. And if they could, then
it’s not the state’s fault that they didn’t. That issue could, you
know, be more in play than the, you know, how much of a valid state
interest does this serve? Any questions, any other comments? Okay. – [Man] Time to go. Thank you. – Great job, Irv.
– Good job, Irv.

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