Emergency Etiquette Help Needed

I am a past chair of the Section of Taxation of the Maryland State Bar Association. Tonight, May 22, the Section will be holding its annual dinner. The keynote speaker is the current I.R.S. Commissioner, Charles P. Rettig. I will be in attendance.

An article appeared in today’s Washington Post, revealing that there was a memo (perhaps simply a draft), that concluded that the Secretary of the Treasury does not have the authority to deny a request for taxpayer returns from the House Ways and Means Committee. Here’s a copy of the memo. I don’t have quick access to the relevant documents right now, but I’m am fairly certain that the obligation to enforce the tax code has been delegated to the IRS Commissioner and that this delegation order has (i) not been revoked and (ii) cannot be revoked except upon thirty days’ notice, which notice has not been made. So, Mr. Rettig would seem to be under a specific legal obligation to honor the Ways and Means Committee’s request.

Now, I try to remain civil and non-confrontational in face-to-face interactions. (My internet interactions are, um, somewhat different.) This leaves me in a bit of a quandary that I am hoping members of the RBC can help me resolve. Should I:

  • Question Mr. Rettig about the issue in a semi-confrontational matter (“Isn’t it true, Mr. Commissioner that . . . .”)
  • When Mr. Rettig is called to the rostrum, ostentatiously turn my back to him.
  • When Mr. Rettig is called to the rostrum, ostentatiously leave the room.
  • When Mr. Rettig is called to the rostrum, quietly and unobtrusively leave the room.
  • Simply maintain the ordinary sort of courtesies expected in such social and professional situations (ala Nancy Pelosi in her recent meeting with Attorney General Barr), remaining in the room and politely applauding Mr. Rettig after he finishes his remarks.
  • Any other suggestion?

I note that while I have never meet Mr. Rettig, I know a good number of my colleagues who have. They are unanimous in their appraisal of him that he is an intelligent, decent, and honorable man.

Lab Report

In his dissent in New State Ice Co. v. Liebmann, 285 U.S. 262 (1932), Justice Brandeis wrote:

[T]he advances in the exact sciences and the achievements in invention remind us that the seemingly impossible sometimes happens. There are many men now living who were in the habit of using the age-old expression: ‘It is as impossible as flying.’ The discoveries in physical science, the triumphs in invention, attest the value of the process of trial and error. In large measure, these advances have been due to experimentation. In those fields experimentation has, for two centuries, been not only free but encouraged. Some people assert that our present plight is due, in part, to the limitations set by courts upon experimentation in the fields of social and economic science; and to the discouragement to which proposals for betterment there have been subjected otherwise. There must be power in the states and the nation to remould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the Fourteenth Amendment, or the states which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity which have attended progress in the useful arts.

To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

Id., 285 U.S. at 310-311.

The states either supported by their courts or, in some cases, lead by their courts, have been doing a good deal of experimentation.

For instance, in League of Women Voters v. Pennsylvania, __ Pa. __ (February 18, 2018), the Pennsylvania Supreme Court held that a Republican attempt to gerrymander congressional districts violated the Pennsylvania state constitution. The U.S. Supreme Court refused to block the Pennsylvania ruling. Thus, the Pennsylvania ruling is impervious to the sort of attack I recognized as a possibility with respect to the various federal cases holding gerrymandering unconstitutional under the federal constitution.

Earlier, I posted a report on a Kansas decision based on that state’s constitution, upholding, at least temporarily, a woman’s right to an abortion.

Finally, this week, the Maryland Court of Special Appeals, Maryland’s intermediate appellate court, in Montgomery County v. Complete Lawn Care, Inc., fended off an attack on a county ordinance restricting the use of certain pesticides for cosmetic purposes in the county. The attack was based upon a claim that the county enactment was preempted by state law. (Among the plaintiffs seeking to block the law was the misleadingly named “Responsible Industry for a Sound Environment, a Committee of Croplife America,” a pesticide trade organization.)

I suppose that it could be argued that the current round of cases differs from the situation presented in New State Ice Co. There, the courts were blocking progressive legislative actions. In the Pennsylvania and Kansas cases above, the courts were acting as bulwarks against legislative attacks on progressive positions. Of course, this gives a somewhat different take on the concept of states’ rights.

Decision Overturning Ohio’s Political Gerrymandering

I have uploaded the decision of a three-judge district court overturning the political gerrymandering of Congressional districts in Ohio engineered by Republican legislators.

The opinion is 301 pages and, no, I have not read it from beginning to end. However, due to the length of this opinion, the Court provided the reader with a more concise summary which states, in part:

“Partisan gerrymandering” occurs when the dominant party in government draws district lines to entrench itself in power and to disadvantage the disfavored party’s voters. Plaintiffs in this action are individual Democratic voters from each of Ohio’s sixteen congressional districts, two non-partisan pro-democracy organizations, and three Democratic-aligned organizations. They challenge the constitutionality of Ohio’s 2012 redistricting map. Defendants are Ohio officials, and Intervenors are Ohio Republican Congressmen; Defendants and Intervenors both argue that the Plaintiffs’ claims are not properly before this Court and defend the map’s constitutionality on the merits.

* * * * *

We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined. We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro-democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution. Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement.


This raises a significant question. For me, this might even be characterized as an existential question. I went to law school. I then went to graduate law school. I’ve always believed that there are, roughly speaking, neutral principles of law that I can master. While there are close cases, at some point, one can discern an authoritative answer to legal questions.

There are currently pending two political gerrymandering cases before the Supreme Court: Rucho v. Common Cause, from North Carolina, and Lamone v. Benisek, from Maryland. Assume that the Court holds that courts cannot address claims that political gerrymandering violates the Constitution. That would mean that the various judges in the numerous cases that have all held to contrary have misinterpreted the law. And, of course, their actions were not off-the-cuff. Every case was well-briefed both by the litigants and by numerous amici curiae. The opinions were detailed and scholarly.

At some level, if so many judges with such a mammoth amount of legal resources at their fingertips cannot reach a “correct” conclusion, the concept of law based upon principles comes into question. In other words, I have simply been fooling myself for the last 45 years?

We’re All Human

In early April of this year, a class action complaint captioned Richard Cole v United Health Insurance Company was filed in the United States District Court for the Southern District of Florida. The complaint alleges that:

Instead of acting solely in the interests of the participants and beneficiaries of its health insurance plans, upon information and belief, UHC denied coverage for [Proton Beam Radiation Therapy (“PBRT”)] to treat prostate cancer because, on average, PBRT is significantly more expensive than traditional Intensity Modulated Radiotherapy (“IMRT”) or other treatments.

The case was assigned to Judge Robert N. Scola, Jr. Earlier this week, Judge Scola recused himself. The substance of the recusal order should be read in full:

In early 2017, the Court was diagnosed with prostate cancer. In
determining the best course of treatment, the Court consulted with top medical experts throughout the country. All the experts opined that if I opted for radiation treatment, proton radiation was by far the wiser course of action. Although the Court opted for surgery, rather than radiation, those opinions still resonant.

Further, a very close friend of the Court was diagnosed with cancer in 2015. He opted to have proton radiation treatment at M.D. Anderson in Houston. His health care provider, United Healthcare, refused to pay for the treatment. Fortunately, he had the resources to pay $150,000 for the treatment and only upon threat of litigation did United Healthcare agree to reimburse him.

It is undisputed among legitimate medical experts that proton radiation therapy is not experimental and causes much less collateral damage than traditional radiation. To deny a patient this treatment, if it is available, is immoral and barbaric.

The Court’s opinions in this matter prevent it from deciding this case fairly and impartially.

What’s Wrong With Stephen Moore?

If asked the question posed above, I could cite the thirteen reasons listed by the 794 economists who oppose Moore’s appointment to the Fed. These include the fact that:

[Moore’s] statements reveal a deep ignorance of economics and an inability to listen to credible experts. He repeats fake and misleading economic statistics, and pushes fallacies about the VAT and trade competitiveness.

Or, I could point out that Moore is nothing more than a Trump sycophant.

But oh, there’s so much more. Like:

Is it possible that Trump could attempt to appoint anyone to the Fed who is less qualified? Oh, wait.

Kansas Abortion Ruling

In Hodes & Nauser, MDs, P.A. v. Schmidt, the Kansas Supreme Court sustained a temporary injunction against the enforcement of a bill that:

[P]rohibits physicians from performing a specific abortion method referred to in medical terms as Dilation and Evacuation (D & E) except when “necessary to preserve the life of the pregnant woman” or to prevent a “substantial and irreversible physical impairment of a major bodily function of the pregnant woman.”

The Court noted that 95% of second-trimester abortions in the United States are performed using the D & E procedure.

What is most significant about the ruling is (i) that it relies on the authority of the state constitution, thus cannot be reviewed by the U.S. Supreme Court and (ii) it rests on Section 1 of the Kansas Constitution Bill of Rights. That Section provides that:

All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.

The Court held that this provision is not merely an “idealized aspiration,” but sets forth “substantive rights [that] include a woman’s right to make decisions about her body, including the decision whether to continue her
pregnancy.”

Those who bang on the issue of “original intent” should be comfortable with the ruling since it carefully examines the historical and philosophical foundation of Section 1, citing, inter alia, John Locke, Sir William Blackstone, Sir Edward Coke, Edmund Burke, James Kent, Louis Brandeis, Dr. James Mohr, author of “The Origins and Evolution of National Policy, 1800-1900 (1978),” and Edward Mansfield.

Note: The citation to Mansfield is used more to refute Mansfield than to celebrate him.

[T]he husband’s control over the person of his wife is so complete that he may claim her society altogether; that he may reclaim her if she goes away or is detained by others; that he may use gentle constraint upon her liberty to prevent her going away, or to prevent improper conduct; that he may maintain suits for injuries to her person; that he may defend her with force; that she cannot sue alone; and that she cannot execute a deed or valid conveyance, without the concurrence of her husband. In most respects she loses the power of personal independence, and altogether that of separate action in legal matters.


Mansfield, The Legal Rights, Liabilities and Duties of Women 272-73.

Quite apart from the strategic/tactical advance in the battle over a woman’s right to choose, the opinion offers a good theoretical framework for addressing the issues.

Michigan Gerrymandering Case

A three-judge panel of the United States District Court for the Eastern District of Michigan (opinion per Clay, J.) has handed down an opinion wherein it:

[J]oins the growing chorus of federal courts that have, in recent years, held that partisan gerrymandering is unconstitutional. We find that the [Michigan Redistricting Plan] violates Plaintiffs’ First and Fourteenth Amendment rights because it deliberately dilutes the power of their votes by placing them in districts that were intentionally drawn to ensure a particular partisan outcome in each district.

This opinion may be revised or even overturned once the Supreme Court rules on two “partisan gerrymandering” cases presently before it.

New Immigration Policy Guidance

Here’s the new policy guidance from U.S. Citizenship and Immigration Services. It provides that:

[The] violation of federal controlled substance law, including for marijuana, established by a conviction or admission, is generally a bar to establishing [Good Moral Character] for naturalization even where the conduct would not be a violation of state law[; and]

An applicant who is involved in certain marijuana related activities may lack [Good Moral Character] if found to have violated federal law, even if such activity is not unlawful under applicable state or foreign laws.

In other words, if immigrants work in businesses that are legal under state law they will nonetheless be viewed as lacking Good Moral Character under Federal immigration law.