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D.C. Circuit

A panel of the D.C. Circuit ruled today that the IRS is not free to rewrite the ObamaCare statute to extend tax credits from users of state-run health exchanges, as per the law’s language, to users of the federal exchange as well, because the federal government is not a “State.” [Halbig v. Burwell; Ilya Shapiro, Cato] Later today, a panel of the Fourth Circuit ruled that yes, it’s free to do so. [King v. Burwell] Given the instant one-day circuit split and the importance of the issue, further court consideration is inevitable, and the Obama administration has already indicated that it will seek en banc consideration by the full D.C. Circuit, packed with its own recent appointees. More: The work of my Cato colleague Michael Cannon and Case Western lawprof Jonathan Adler helped undergird the suit; Cannon has commentary here and here and Adler here and here.

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Comments from my Cato Institute colleagues Roger Pilon and Ilya Shapiro, as well as CEI’s Hans Bader. A “totally risk-free strategy for Democrats, as long as they are never again in the minority.” [Lowering the Bar] Patterico on the elegant consistency of the New York Times editorial page over the years (it is consistent, once you know to look for the pattern) and an unheeded 2005 prayer (YouTube, auto-plays) from then-Sen. Joseph Biden (D-Del.). And some further observations from Jonathan Adler.

P.S. Further thoughts from Roger Pilon regarding the immediate focal point of the struggle, the three nominations to the D.C. Circuit:

…a second point, too little noted, concerns the implications from there being numerous “judicial emergencies” in the other circuits — vacancies in seriously overworked circuits for which the president hasn’t even named anyone. Judicial emergencies have increased 90 percent since 2006, and the vacancies with nominees have declined from 60 percent to 47 percent. Yet rather than attend to filling those vacancies, Obama and Reid are focused on adding three more judges to the already seriously underworked and overstaffed DC Circuit. That speaks volumes, of course, about what their agenda is. As I wrote yesterday, the DC Circuit’s docket is mostly about challenges to administrative decisions. Judges in such cases have considerable discretion about whether or not to defer to the judgment of those agencies. If you want to rule by executive diktat, as Obama plainly does, you’ll want “your people” on that court, deferring to “your people” at EPA, HHS, OSHA, the FEC, the IRS, and so on down the line. Let the folks out in the country wait a little longer to get justice.

P.P.S. And relatedly from Mickey Kaus:

Regulation is D.C.’s economic substructure, its mode of production, as Marx might say – even more so than legislation. Those big gleaming office buildings aren’t filled with Congressional lobbyists! They’re filled with administrative lawyers. Now, with a full 11 member court stacked to favor Democrats, there will be even more rules to litigate, more counsel to hire, more mansions to house them and restaurants to feed them. Whatever happens in the rest of America, the capital’s economic future is secure.

They should erect a statue of Harry Reid outside the Mazza Gallerie.

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Judge Laurence Silberman, writing for the panel on the Yucca Mountain case: “The [Energy] Secretary’s position is so obviously disingenuous that we have no confidence that another remand would serve any purpose.” [NARUC v. Dept. of Energy, PDF via Jeremy P. Jacobs, E&E]

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Slate really embarrassed itself the other day with a column by Emily Bazelon and Dahlia Lithwick flatly misreporting the holding of a Janice Rogers Brown opinion on religious liberty and Obamacare. I wrote this piece in response, which just appeared at PowerLine.

More: West Coast politics and law blogger Patterico likes my piece. Ed Whelan of the Ethics and Public Policy Center writes on Twitter to say that a post he wrote on Saturday “seems to be what triggered [the] weak correction.”

Although the D.C. Circuit Court of Appeals has ruled its composition invalid, the National Labor Relations Board (NLRB) “declares that it will keep doing business as if nothing happened.” [WSJ via Fed Soc Blog]

This is by no means the first face-off between the D.C. Circuit and an agency resistant to its will: for another, see this 1981 Regulation account (PDF, scroll to page 11, “Reversing the D.C. Circuit at the FCC”) of a series of showdowns between the appeals court and the Federal Communications Commission. That one ended happily for the independent agency, but then the FCC may have been on firmer ground going to bat for its right to exercise policy discretion as an expert agency than it would have for its right to be constituted improperly through unconstitutional appointments.

November 15 roundup

by Walter Olson on November 15, 2012

  • Ninth Circuit dissent: ruling “jeopardizes academic freedom” by making it too easy for students to sue professors [WSJ Law Blog]
  • When the bumptious and sociopathic go after our blogging friend, it’s Ken 1, b./s.-ers zero [Popehat]
  • Uh-oh: “Election Results Seen as Victory for Business of Law” [Gina Passarella, The Legal Intelligencer]
  • In the mail: “How to Feed a Lawyer: And Other Irreverent Observations from the Legal Underground” [Evan Schaeffer]
  • “Cato Files Brief in the First Federal Appeal Regarding the Contraception Mandate” [Ilya Shapiro, earlier here, here, etc.]
  • “Judicial independence” campaigners snooze through unfair attacks on D.C. Circuit [WSJ, earlier]
  • “Anyone whose blood pressure needs a boost should check out Overlawyered…” [James DeLong, American Thinker]

Washington Post columnist Steven Pearlstein’s smear job on D.C. Circuit judge Brett Kavanaugh over an environmental ruling shouldn’t go unanswered, and thanks to Ed Whelan at NRO it hasn’t.

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October 15 roundup

by Walter Olson on October 15, 2012

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A year ago the D.C. Circuit told the Transportation Security Administration (TSA) that it needed to go through notice-and-comment rulemaking for its controversial program of full-body scanners at airports. The rulemaking process is intended to ensure that the agency lays out clearly the factual, legal and policy basis for its actions, with a chance for opponents to lodge objections and establish a basis for judicial review. As my colleague Jim Harper points out, the agency has dragged its heels about doing this — a sort of passive resistance it would probably not tolerate from the hapless citizens stuck in its lines. TSA screening is one of the most widely resented governmental intrusions on the individual citizen of our era. Shouldn’t we all demand that the federal government demonstrate adequate justification for imposing it? [Cato at Liberty and Ars Technica; Consumerist; Constitutional Law Prof, 2011] (& welcome National Review “Web Briefing” readers; John LaPlante, Detroit News “Water Cooler”)

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The AEI scholar and author of The Upside-Down Constitution notes that administrative law battles at the D.C. Circuit have calmed down a lot in recent years — maybe too much so [Law and Liberty] And Ramesh Ponnuru reviews Greve’s new book here.

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March 6 roundup

by Walter Olson on March 6, 2012

  • D.C. Circuit’s Janice Rogers Brown: three-decade-long case over Iran dairy expropriation raises “harshest caricature of the American litigation system” [BLT]
  • Legal blogger Mark Bennett runs for Texas Court of Criminal Appeals as Libertarian [Defending People, Scott Greenfield] And Prof. Bill Childs, often linked in this space, is departing TortsProf (and legal academia) to join a private law practice in Texas;
  • Ambitious damage claims, more modest settlements abound in Louisiana oil-rig cleanup suits [ATLA's Judicial Hellholes, more, more, earlier]
  • Better no family at all: Lawprof Banzhaf jubilant over courts’ denial of adoption to smokers [his press release]
  • “The worst discovery request I’ve ever gotten” [Patrick at Popehat] And yours?
  • Concession to reality? Class action against theater over high cost of movie snacks seen as dud [Detroit Free Press]
  • FCPA is for pikers, K Street shows how real corruption gets done [Bill Frezza, Forbes] Dems threatening tax-bill retribution against clients whose lobbyists who back GOP candidates [Politico]

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And the resulting lawsuit by the bomb victim names as defendants the parking garage as well as the family member. A panel of the D.C. Circuit affirmed summary judgment in favor of the garage owners, however, ruling that a car bombing was not reasonably foreseeable at their location on Wisconsin Ave. in the District of Columbia. [Sigmund v. Starwood, Findlaw, via The Briefcase]

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In the past two years Tyrone Hurt has filed more than seventy appeals with the D.C. Circuit, whose judges observe (PDF):

In just the last couple of years, Hurt has sued the Declaration of Independence, Black’s Law Dictionary, the United Nations, agencies of the District of Columbia and the Federal Government, and various courts and their officers. Hurt has . . . demanded the deportation of a Spanish-speaking government employee.

Finding that Hurt has abused the privilege of having filing fees waived for indigence (“in forma pauperis”) the court dismissed his forty-four pending cases and decreed that he will have to pay ordinary filing fees if he wishes to bring any more pro se actions in that court. Hurt’s various failed lawsuits have demanded “sums of money dwarfing the size of the Federal Government’s annual budget”. (WSJ law blog, Oct. 3).

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