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Posts on the rule of law, the history of law. Not for discussion of modern court cases.

Thoughts on the Little Sisters of the Poor v. Sebelius stay

We consider the other stay being sought before Justice Sotomayor, the Little Sisters of the Poor case.

I had thought that the premise of the Sisters' case was (like the other cases in motion) "we're subject to the mandate." But having read the Application and Response, I no longer understand how this case works. The Response insists that the Sisters ARE "eligible for religious accommodations set out in the regulations," and that that the Sisters "need only self-certify that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, and then provide a copy of their self-certification to the third-party administrator of their self-insured group health plan."

Sure, you say, but that's the government; the Application contests that, right? Alas, it does not. To the contrary, the Application claims certification precisely as the harm that they will suffer absent relief: "Without an emergency injunction, Mother Provincial Loraine Marie Maguire has to decide between two courses of action: (a) sign and submit a self-certification form, thereby violating her religious beliefs; or (b) refuse to sign the form and pay ruinous fines. … [T]he precise act that violates their religion … [is] 'complet[ing] a self-certification form and provid[ing] it to" the insurers. In other words, the harm that the Sisters are claiming isn't that they will be subject to the Mandate but that they will have to certify that they aren't. That's puzzling and weak.

Confessedly, this is the so-called "compromise," and I criticized it when it was announced. But now that we have before us real regulations and real plaintiffs and a real, concrete situation, I'm having a difficult time understanding the problem as it's played out in practice. I understand why requiring a Catholic organization “to contract, arrange, pay, or refer for contraceptive coverage” is a violation of conscience. But as we've seen, the government contends (and the sisters don't contest) that they aren't being asked to do any such thing, because they can opt-out by self-certification.

Well, okay, but what does that mean? As I understand 45 CFR § 147.131 (2013), when an organization opts out ("self-certifies") that it can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage,” their provider must—must!—"[e]xpressly exclude contraceptive coverage from the group health insurance coverage" provided to the certifying organization and "[p]rovide separate payments for any contraceptive services required to be covered … for plan participants and beneficiaries for so long as they remain enrolled in the plan." The provider "may not impose any cost-sharing requirements (such as a copayment, coinsurance, or a deductible), or impose any premium, fee or other charge, or any portion thereof, directly or indirectly," on the certifying organization.

So what's the theory that opting out is a violation of conscience? One theory might be that if a significant number of organizations opt out, the insurance companies may fund the imposed costs by rate hikes? That was the ground on which I originally faulted the compromise, but from our vantage point today, there's a lot of "if" and "may" coming off of that theory. The injury just seems too remote and speculative to support a lawsuit against the regulation.

And in any event, the sisters rely on a different theory. They think that a 147.131(b)(4) self-certification "authoriz[es] and direct[s]" their plan provider "to provide the required coverage…." App. 8. But that's not what section 147.131(c) says. It says that certification causes a plan provider that already provides the required coverage to pay for it "themselves." (Scare quotes with one eye on the first theory mentioned.) Their theory seems to be that opting out will cause an insurance company to offer contraceptive coverage, but even if that would violate their conscience (and it's not clear why), it's incorrect, not as a matter of Catholic doctrine but as a matter of law. The insurance company is already mandated to offer the coverage; the question (and the effect of the opt-out) is whether the sisters are charged for it.

When I try to harmonize the language of the two alternatives, here's what I get: The sisters insist that they can't in good conscience “contract, arrange, pay, or refer for contraceptive coverage.” I understand. I agree. They furthermore insist that they can't in good conscience contract with an insurance provider that arranges or pays for contraceptive coverage at no direct cost to the sisters. And that, truth to tell, I just don't understand.

It's looking more and more like a case of "right case, wrong plaintiffs." Imagine that the DoE promulgates a regulation that reads as follows: "Section 1. All power companies must pay all workers a minimum of 150% of the minimum wage. Section 2. A power company incorporated in Delaware shall be exempt from section one of this regulation if it certifies in writing to the Secretary that the day that follows Monday and precedes Wednesday is Tuesday." A power company not incorporated in Delaware probably has an APA claim, cf. Motor Vehicle Manufacturer's Ass'n v. State Farm Mutual Auto Insurance Co., 463 U.S. 29, 42 (1983), and a number of them file suit. Then ConEd, a Delaware corporation, perhaps feeling left out of the fun, files suit; the government moves to dismiss insisting that ConEd doesn't have standing to challenge the mandate because it's eligible to opt out under section two. Does ConEd have standing?

I will finish with this observation. Cases such as this demonstrate the difficulty of so-called "public interest litigation." Litigation mills like Public Citizen, Becket, People for the Soviet Way and so on decide that they hate a law, seek out the most sympathetic possible plaintiffs to use as a vehicle for challenging the legislation in the courts, and then try to figure out why their handpicked plaintiff was injured. It's not hard to see why that's an attractive strategy. It makes it easier to win sympathy—so that stories like this can be written in which the government is portrayed as a big overweening bully out to get the nice little plaintiffs, and suddenly the discharge of a normal litigation function starts to look Orwellian. "The government filed a response to the plaintiff's motion! How dare they! Why do they hate the sisters?"

But the problem with the strategy is that because the lawsuit's come together out of sequence, creating the necessary nexus of injury between the chosen law and the chosen plaintiff can be tricky. When you have a plaintiff like the sisters who challenge the mandate because it violates their conscience to provide contraception, one might think that "actually they don't have to provide contraception" is a pretty good rebuttal. There are a number of cases challenging the mandate that have less sympathetic plaintiffs (Hobby Lobby, Grote, Gillardi, et al) but stronger claims.

Thoughts on the Herbert v. Kitchen stay

We consider the stay sought from Justice Sotomayor in the Utah marriage case, Herbert v. Kitchen.

Ordinarily, to obtain a stay, there must be "a 'reasonable probability' that four Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction," "the applicant must persuade [the Circuit Justice] that there is a fair prospect that a majority of the Court will conclude that the decision below was erroneous," "there must be a demonstration that irreparable harm is likely to result from the denial of a stay," and "in a close case it may be appropriate to 'balance the equities'—to explore the relative harms to applicant and respondent, as well as the interests of the public at large." Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers) (alteration in original); see Hollingsworth v. Perry, 558 U.S. 183, 189 (2010) (per curiam); Barnes v. E-Systems, 501 U.S. 1301 (1991) (Scalia, J., in chambers).

What should have happened in this case is that the district court should have looked at the balance of equities and reasoned that if the judgement were stayed and upheld, nothing of significant would happen, while if the judgment were not stayed and was reversed, chaotic and anomalous situations would follow. The district judge should be impeached and removed from office for that misbehavior; the ball's in your court, Congress. But what's done is done. Now we have to unwind the mess.

My primary difficulty in this case lies at the confluence between irreparable harm and balance of equities. While I agree that irreparable harm would follow if the district court didn't stay its ruling, that court refused to issue a stay, and irreparable harm has already taken place. The Applicants concede that the harm isn't just the state's inability to enforce its laws, but the ongoing parade of same-sex marriages that are taking place. App. 20. Were the judgement reversed, those marriages that are already final would be placed into an anomalous and difficult position that would in turn require significant unwinding and, quite likely, litigation. (When Strauss v. Horton, 207 P.3d 48 (Cal. 2009), upheld proposition 8, the court had to face the question of what to do with all those marriages conducted between its adoption and In re Marriage Cases, 183 P.3d 384 (2008).)

Against this background, I note that the balance of equities will usually favor preservation of the status quo while litigation wends through the courts, see San Diegans for the Mount Soledad National War Memorial v. Paulson, 548 U.S. 1301 (2006) (Kennedy, J., in chambers), and indeed the whole purpose of a stay is "suspend judicial alteration of the status quo." Ohio Citizens For Responsible Energy, Inc. v. NRC, 479 U.S. 1312, 1313 (1986) (Scalia, J., in chambers). But it's too late for that: The judicial alteration of the status quo has happened, and a new status quo has prevailed since December 20th, which the Applicants again concede (App. 5). Nearly a thousand marriages have subsequently taken place. See Barnes, Same-sex marriage advocates urge Justices to reject Utah’s request to stop the unions, Washington Post, Jan. 3, 2014. A stay may suspend it in the sense that it will prevent the breach from becoming deeper or wider, but it will not undo what has been done.

Nevertheless, if this case came to us in the normal posture, I would be tempted to grant the stay anyway, on the grounds that any harm arising from the anomalous position in which those couples find themselves is the fruit of their own opportunistic behavior. No reasonable person could have believed that the district court's judgement was likely to escape appeal, and while no intelligent person would bet on it being reversed, no prudent person would pattern their behavior on the assumption that it wouldn't. Indeed, I suspect that the possibility of insulating the decision by creating a Strauss-style anomaly was on the minds of both the district judge and the newlyweds.

But the case is not in the normal posture. Ordinarily, the loser below asks the Supreme Court to stay the judgment of the Court of Appeals pending further proceedings before the Supreme Court. Here, though, it's the district court's judgement for which a stay is sought pending further proceedings before the court of appeals, which denied a stay. If neither the district court nor the court of appeals are willing to enter a stay pending appeal, a request that the Supreme Court do so is generally rejected. Heckler v. Lopez, 463 U.S. 1328, 1330-31 (1983) (Rehnquist, J., in chambers). When "nothing more [is] involved than the exercise of a District Court's traditional discretion in fashioning a remedy for an adjudicated harm or wrong," interference with the usual course of appellate review is unwarranted. Id., at 1337. Nor is there any reason to suppose that the court of appeals is dallying, cf. Doe v. Gonzales, 546 U.S. 1301 (2005) (Ginsburg, J., in chambers). This additional concern clicks up the weight that applicants must carry, and what would have been a challenging burden in an ordinary case thus becomes too heavy for the applicants (through no fault of their own, confessedly) to shoulder.

For these reasons, I would deny the stay, and I suspect that the court will, too.

The uncited

He's still grousing...

The result in Bush v. Gore was important, but the reasoning turned out to be perishable; the decision has not been cited again by the Justices

Yes, well; that's unsurprising, as I explained a few moons of Jeff's whining about the case ago.

"But there’s no way to know what to make of his story yet."

No, Justice Kagan shouldn't recuse

Althouse links to the latest story urging Kagan to recuse herself from the PaPACA litigation or explain why she won't.

Kagan shouldn't recuse herself (neither should Justice Thomas, by the way) and there's really no need to explain it. The prevailing understanding of recusal is needlessly histrionic; generally-speaking, I think that judges should recuse themselves when, and not unless, they have a direct personal stake in the outcome (stocks, etc.) or a personal involvement with a private litigant (the defendant is a family member; the plaintiff killed their dog). The idea that judges should recuse themselves because they might have preexisting opinions about the legal issues in the case at bar is, in a word, fatuous. Writing for the court in Minnesota GOP v. White, Justice Scalia correctly said that

it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: "Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers." Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. "Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."

(Citations deleted.) If anyone believes that there is a single member of the court who doesn't have reasonably well-formed ideas about the Constitutional issues at issue in these cases, and at least tentative views about the application of those principles to these cases, they're living on another planet. And so what? Nobody in their right mind believes that Justices Scalia and Ginsburg must recuse from the next abortion case down the pike simply because they have strong moral views on abortion and settled legal views on the constitutionality of abortion, so what basis is there for demanding that Kagan recuse for potentially having views that are certainly no more settled and more than likely considerably less so?

The only conceivable basis is to argue that Kagan does have a direct stake insofar as she helped create the defense that she is now called to adjudicate. (For precisely that reason, Kagan has recused in a number of cases.) But did she? An email expressing excitement that the bill might pass is hardly a smoking gun, and I see little reason to believe that we're likely to find one. Here's why: The Senate consented to Justice Kagan's appointment on August 5th, 2010; the district court ruling striking down PaPACA, Florida v. DHHS, was argued in December 2010 and handed down in January 2011; the 11th circuit affirmed in August 2011. How could Kagan participate in briefing, arguing, or strategizing in litigation that took place months after she joined the court? It is conceivable that in the spring of 2010, Kagan might have participated in general strategy meetings about potential issues that might be raised in potential litigation, but that just brings us back to the general legal views trap. I see little reason to believe that she participated in the earliest stages of the earliest actual litigation filed, and by the time that one would expect the SG's office to be involved in those cases, Kagan had joined the bench.

The calls for Kagan to recuse have nothing to do with judicial integrity, any more than do the left's recurrent calls for Scalia and Thomas to recuse from various cases. (I recall one article in which a professor seriously argued that five justices should have recused in Bush v. Gore, and what do you know, they just happened to be the five who voted for what the professor thought was the wrong result! Fancy that!) This is about stacking the deck. The left wants Thomas out to eliminate a vote against Obamacare and the right wants Kagan out to eliminate a vote for it. The court should decline the invitation to dignify such naked partisanship by responding any more than it already has.

Perry v. Perez

The case of which Perry v. Perezdecided this morning—most reminds me is Ayotte v. Planned Parenthood. Although they deal with different issues, the common thread is a particular kind of judicial minimalism. In the context of an abortion law, Ayotte cautioned courts to strike down only those parts that were problematic, leaving as much as possible of the legislature's work intact; in the context of a redistricting challenge, Perry cautions district courts that if they must draw new districts, they should take as much guidance as possible from the legislature's plans; both expect courts to walk softly and tailor carefully, "limit[ing] the solution to the problem" as Ayotte puts it.

Perry is very short and worth reading, but I'll excerpt what strikes me as the key part:

To avoid being compelled to make such otherwise standardless decisions, a district court should take guidance from the State’s recently enacted plan in drafting an interim plan. That plan reflects the State’s policy judgments on where to place new districts and how to shift existing ones in response to massive population growth. This Court has observed before that “faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying” a state plan—even one that was itself unenforceable—“to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act.” …

Section 5 prevents a state plan from being implemented if it has not been precleared. But that does not mean that the plan is of no account or that the policy judgments it reflects can be disregarded by a district court drawing an interim plan. On the contrary, the state plan serves as a starting point for the district court. It provides important guidance that helps ensure that the district court appropriately confines itself to drawing interim maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences.

A district court making such use of a State’s plan must, of course, take care not to incorporate into the interim plan any legal defects in the state plan.

Prison rape, redux

Noting the shift in the definition of rape, Patterico says:

I have seen statistics that show more men are raped in this country every year than women, and while I am unsure of their accuracy, the fact is that rape of men is common — in prison. Long-time readers of the site know that I do not consider prison rape funny. Not only is it not part of the prescribed punishment, but the victims are likely to be weaker and less violent people — meaning that even if you did subscribe to a vigilante justice ethic, you’d still be letting the most violent get their jollies at the expense of the least violent.

I agree; more about that in this post from 2007.

(Notes on) The limits of the impeachment power

N.b.! The following is not a complete post. It contains the opening parts of the first draft of a post that I was writing in January 2009; it never came close to being finished, and the moment for it passed. It's languished for years in the drafts pile. What's more, I do not now either endorse or repudiate the argument that I was seeking to make, which you can see in outline (the more skeletal parts never made it off the blotter, so there's some holes and the end is completely missing).

So why publish now, almost three years later, and why in this state? Well, a lot of research went into it, and I think there's some valuable material in here that pertains generally to impeachment. Over the last couple of years, I've strip-mined this draft for its research time and again when impeachment issues have come up. For that reason, and since impeachment may become a hot topic again in the coming weeks, I thought that I'd share it "as is."

The limits of the impeachment power

"a hundred-ton gun which needs complex machinery to bring into position, an enormous charge to fire it, and a large mark to aim at." - Lord Bryce, on impeachment.1

Via Prof. Jacobson, I see that Bruce Ackerman is arguing that Judge Bybee should be impeached because of advice he gave while serving at OLC prior to his nomination to the bench. If the Senate had known about that advice, Ackerman charges, it would never have confirmed his appointment to the Ninth Circuit, and impeachment is warranted because it would “focus[] on a very particular problem: Jay Bybee may serve for decades on one of the highest courts in the land. Is his continued service consistent with his role in the systematic perpetration of war crimes?”

That may be a good question, but I want to suggest it was a passenger on a ship that has vanished over the horizon, one that cannot now be called back through impeachment. Assuming that Bybee could be impeached for his conduct at OLC, and assuming that Congress can impeach an officer even after their resignation (historically a hotly contested point), Bybee could be impeached and barred from future appointments, but could not be be removed from his present office on the basis of impeachment qua an OLC officer or impeached qua a judge for his conduct at OLC. Text, history, and practice are all strongly suggestive of this conclusion.

  1. 1. 1 James Bryce, The American Commonwealth 212 (1914).

In re Richard Cordray

It is reported that President Obama will seek to install Richard Cordray as Director of the United States Consumer Financial Protection Bureau. See, e.g., this, this, and this.

In evaluating the validity of such an appointment, we begin with a familiar principle: The President's recess appointment power extends only to "vacancies that may happen during the recess of the Senate,"1 which encompasses only vacancies that happen to arise during the recess of the Senate, not all those which may exist. See SF: The limits of the recess appointment power (April 26, 2010). Thus, the threshold inquiry when evaluating a recess appointment's validity is to determine the date on which the vacancy arose and whether the Senate was in recess at the time.

The office to which the President seeks to appoint Cordray came into being at the same time as the bureau that it directs, July 21, 2010,2 and no nominee has ever been confirmed to the directorship. Thus the vacancy can only have arisen on July 21, 2010, and the Senate was in session on that day.3 For that reason, the office is not susceptible to a recess appointment.

It isn't yet clear when the President wants to make this move, but the timing of the announcement suggests that he intends to make it today. That would make the appointment doubly invalid, because even under the broader interpretation that allows Presidents to make appointments to vacancies that merely exist during a Senate recess, the Senate must actually be in recess, and the Senate is not in recess today. It last convened yesterday, and presently stands adjourned—not recessed—until Friday morning. Thus, even if the vacancy the President aspires to fill was eligible for a recess appointment as a general matter, there is not presently a recess in which he may act.

For the foregoing reasons, a recess appointment of Richard Cordray would be ultra vires.

  1. 1. U.S. Const., Art. II § 2 cl. 3.
  2. 2. See Pub. L. 111-203 § 1018, 124 Stat. 1376, 1979 (2010).
  3. 3. See 156 Cong. Rec. S6039 et seq.; id., at S6121.

Indirect effects

To some folks' consternation, the "ban" on incandescent lightbulbs goes into effect in a few hours. Imagine a government policy which discourages and thereby disrupts the supply of a particular commodity: Is the policy analogous to a ban?

As I understand it, the "incandescent lightbulb ban" obliges manufacturers of lightbulbs (of any kind) to meet certain prerequisites ("efficiency"). Because it wouldn't be economical for manufacturers to produce compliant incandescent bulbs, the manufacturers in practice simply shut down production and make compliant bulbs of other kinds. The "ban" is thus mediated by private entrepeneurial choice: The regulation doesn't ban incandescent bulbs, it just creates a regulatory framework in which the product becomes unavailable in the marketplace.

Now imagine that a state government imposes a regulation that medical facilities wishing to offer abortion must meet certain prerequisites ("health and safety," informed consent," etc.), and it would not be economical* for clinics to comply. The "ban" is thus mediated by private entrepeneurial choice: The regulation doesn't ban abortion, it just creates a regulatory framework in which the service becomes unavailable in the marketplace. Has the state banned abortion?

___________
* Absent market distortions not present in the lightbulb debate—fanatical pro-abortion ideology could lead some outfits like PP to operate at a loss in some states.

An eleventh thing that didn't change, and one thing that did

An eleventh thing that didn't change with the guard might have been "Signing statements are still valid," or, to be more precise, "Signing statements are still not inherently invalid." You may remember that half-baked sloganeering about things wot Bush done was a major component of the Democratic primary last time around, and candidates gleefully fulminated against any practice of the Bush administration to which a name could be put—signing statements, for example. Thus, while I have no problem with President Obama issuing signing statements as a Constitutional matter, I must say that, like Cap'n Ed, I'm puzzled about how President Obama doesn't have a problem with what Senator Obama decried.

Added: Here's Obama's signing statement. There's nothing problematic in it—it looks a lot like the sort of signing statement issued by President Bush—save for the total absence of an explanation as to how it squares with Senator Obama's views! You can change your mind, but it's common courtesy to say why. A few years ago, I speculated that if the Democratic candidate won the 2008 election, their use of tools then decried as Bush administration black magic might renormalize those tools in the public mind. It doesn't seem to have happened that way—see this.

PaPACA goes to the Supreme Court

In a nutshell, here's what the Supreme Court ordered this morning in several Obamacare-related grants. The court is going to hear several hours of argument on the following questions: (1) Is the mandate severable? (2) "Whether Congress had the power under Article I … to enact the minimum coverage provision" of PaPACA.Pet. in 11-398. (3) "[w]hether the suit … challeng[ing] the minimum coverage provision of the Patient Protection and Affordabl...e Care Act is barred by the Anti-Injunction Act…."Nov. 13 2011 Order in 11-398. (4) "Does Congress exceed its enumerated powers and violate basic principles of federalism when it coerces States into accepting onerous conditions that it could not impose directly by threatening to withhold all federal funding under the single largest grant-in-aid program, or does the limitation on Congress‘s spending power that this Court recognized in South Dakota v. Dole no longer apply?"Pet. in 11-400. (citation deleted). Now you're up to speed.

As I've mentioned before that I find it hard to count five votes for striking PaPACA down, but I must add that if comes out 5-4, I expect to see a slew of people condemning the decision as not only a horrible mistake but in fact illegitimate. If it's struck down, the leftosphere will go berserk charging that Thomas should have recused himself, and if it's upheld, the rightosphere will go berserk charging that Kagan should have recused herself! These narratives are already in the can, folks.

Utah Highway Patrol Assn. v. American Atheists, Inc.

Justice Thomas has written a dissent from a denial of cert that's well worth a read. I must say, however, that Justice Thomas is quite the optimist if he believes that the court had "an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles." To be sure, his dissent is wonderfully written and skewers a jurisprudence that has indeed gone "hopelessly awry." At the same time, however, it seems quite obvious to me that the reason for that shambles is that the court is deeply divided, and that accordingly, barring an Owen Roberts-style switchup, each establishment case that the court decides before new appointments bring a majority for one view of the clause or another can only make the law less clear not more. That has been the experience of the last three decades (as Thomas recounts), and it is hard to imagine why it would be different now. Until that's fixed, perhaps the best policy is for the court to avoid muddying the waters even further.

"He was teaching us that the law is serious business, but we’re all in it together so let’s be reasonable."

Hosanna-Tabor v. Perich

Dahlia Lithwick has this on the Hosanna-Tabor case that’s before the Supreme Court right now. The essence of the case—to put it somewhat critically—is whether a religious organization can exempt itself from the employment laws by designating employees as ministers and thus placing them in the ministerial exception to those laws. (That’s the well-established and perfectly sensible rule that courts can’t interfere in hire-and-fire decisions relating to clerical personnel, for the obvious reason that that would place government in the position of telling a religious body—at the request of a third party—who its ministers shall be, something that violates the First Amendment more plainly than just about anything else imaginable.) Take a few minutes and read Dahlia’s piece before continuing; she’ll get you up to speed.

Back? Good. What perplexed me as I read the briefs in this case is that because of limits on what courts may properly do, the case will be decided on murky grounds: Haggling over who is or isn't a minister and who gets to decide. As Dahlia recounts—vividly as ever—the court is baffled. For the record, the answer can only be that the church gets to decide who is a minister—otherwise government can simply give an extremely restrictive interpretation of “minister” and get into the afore-mentioned business of reappointing clerics—but that's not the point I want to focus on. The only reason we're stuck trying to parse the ministerial exception question is because we instinctively know that Hosanna-Tabor did nothing wrong and broadly construing the ministerial exception is the only way we can let them off the hook. And it shouldn't be.

And this is where we arrive at a perspective problem. It sometimes seems to me that liberals are apt to mistakenly think that the purpose of employers is to provide a service to their employees rather than the other way around: Labor is a commodity obtained by people and entities for the purpose of carrying out whatever activity the person or entity does. (That, by the way, is why trade unions are a sub rosa antitrust problem: They are a cartelization of the labor market.) The plaintiff was hired to do a job; she was no longer able to do it. How, then, is it rational to say that a small school, which exists to teach, must subsidize a nominal teacher and hire someone to actually teach her class, despite lacking any reasonable ability to do so?

Let's review: The plaintiff, Perich, was a teacher at a small parochial Lutheran school . She was diagnosed with narcolepsy, and (as the petitioner's brief puts it) "[b]ecause of the school’s small staff and limited budget, Perich’s absence created immediate difficulties. For a full semester, the school attempted to preserve a job for Perich by combining three grades into a single classroom. But parents"—quite reasonably!—"complained about that arrangement. Finally, in January 2005, seven months after Perich fell ill, the school hired a replacement for the spring semester." Perich resisted, the church removed her, and litigation ensued. Was that illegal? I don't know. The court may tell us in this case. But it certainly wasn't wrong. To see why, try an exercise in empathy: Don't put yourself into the plaintiff's shoes (the tool used by a sympathetic media to pick your side for you), but those of the parents. And imagine that the world is inside out: Imagine that public schools have been captured by conservatives, and they’re inculcating Christian conservative values. You feel that this is dead wrong, so you send your kid to a small independent liberal school that teaches the values you think are right with a much better kid to teacher ratio. You’re paying real money for this, because you think it’s best for your child. And the school says one day “you know, we’re going to combine two classes, because one of our teachers is on long-term medical leave. The alternative is that we’ll have to increase your tuition to cover both the nominal teacher and the substitute.” Would you honestly accept any of that? I doubt it. You’d ask why the school doesn’t just fire the teacher who isn’t doing her job, because the first concern of any parent is their child’s education; the school’s function is to accomplish that, not to transfer money from anxious parents to people who aren’t working there. Or imagine that you are a small environmental lobbying company doing important work, and your company administrative assistant gets sick! You were barely keeping your head above water before—these are tough economic times—and now you have to pay her and pay someone else to do her job?

So the problem is that the ADA treats Hosanna-Tabor the same way it treats GM, and that’s stupid. (Stipulating, for the time being, that such laws are rational when applied to GM.) Not every entity that employs is big enough to indulge the Periches of the world, no matter how much it might like to, no matter how little intent they had to discriminate. (The idea that this case involves invidious discrimination is just laughable, and quite frankly, the idea that it involves discrimination at all—cf. Black's 8th at 500—is puzzling, which makes this case even more absurd: We're fighting over the standards of summary judgment in a case that shouldn't even exist!) Oh, yes ADA excludes truly tiny entities from its reach (see 42 U.S.C. § 12111(5)(A) ("The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year")), but where do you draw the line? How big must a company be before we can say that an employee is fungible?

No abstract theory can supply an adequate answer to that. I suggest that the answer is to refuse to play the quantitative game (or to game the ministerial exception), and instead, recognizing that what the law appears to ask entities like Hosanna-Tabor to do is insane, declare that laws like ADA only apply to the extent that they don’t impose an unreasonable burden on employers. We're here today talking about this case only because courts shouldn't create the kind of exception I've mentioned and Congress won't.

It will no doubt be answered by the left that this would make the protections of the law turn on the size of the company you work for, and that's true, but I don't find that persuasive since the choice of employer is in the discretion of private parties in the market, not a single governmental decisionmaker. And it will no doubt be answered by a few on the right that it confers too much discretion on judges, but I don’t find that persuasive either since case-by-case questions demand case-by-case answers and only judges are situated to do that.

The audacity of cajones

TP wants you to know that the left is for democracy. Unlike us evil rethuglicans, the left thinks the people should get to decide.

Yeah, you read that right. TP is saying that it's the right that uses the Constitution (or their own self-styled variant of it) to shut out democratic control, that it's the left that's for letting the people make their own choices. The left is for the people making their own choices via the ballot box.* Yep.

*Does not include gay marriage, abortion, school vouchers, capital crimes, school prayer, non-coed schools, apportionment of state legislatures, flag burning, the pledge of allegiance, criminal procedure, speech codes, school conduct, regulation of violent video games...etc

Ezell v. Chicago

Prof. Kopel has a good summary of Ezell v. Chicago, an important Second Amendment case--one that I'm still digesting--from SF favorite Judge Sykes' pen. Be sure to check it out.

The violent video games case decided--

With a lineup no one saw coming! Scalia writes for the majority. Alito (whose presumed dissent was thought to be the hold-up) concurs, joined by the Chief. Thomas dissents, joined by Breyer.

Sykes v. United States

“[We consider,] for the fourth time since 2007, what distinguishes 'violent felonies' under the residual clause of the Armed Career Criminal Act (ACCA) from other crimes. We try to include an ACCA residual-clause case in about every second or third volume of the United States Reports. ¶ As was perhaps predictable, instead of producing a clarification of the Delphic residual clause, today’s opinion produces a fourth ad hoc judgment that will sow further confusion. Insanity, it has been said, is doing the same thing over and over again, but expecting different results. Four times is enough. We should admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.”" Says Justice Scalia, in dissent (citations omitted).

"It should not be surprising that the two dissents have sharply different views on how to read the statute"—

"That is the sort of thing that can happen when statutory analysis is so untethered from the text." A stinging remark from the Chief's opinion in Chamber v. Whiting.

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