Tags: Supreme Court

Roe v. Wade’s Inside Story


On November 18, please join leading social critics and policy-makers — including Mollie Hemingway of the Federalist, Christopher White of the Center for Bioethics and Culture, Charmaine Yoest of Americans United for Life, and Fr. Gerald Murray – for a conversation on Clarke Forsythe’s important new book, Abuse of Discretion: The Inside Story of Roe v. Wade. This will be held at Church of the Holy Family (315 East 47th Street in New York City) at 6:00 p.m. Admission is free, but please RSVP to [email protected] or call 212.871.6310.

Tags: Abortion , Supreme Court

Obama’s Law Professor: ‘I Wouldn’t Bet’ on Obamacare Surviving Next Legal Challenge


President Obama’s old Harvard Law professor, Laurence Tribe, said that he “wouldn’t bet the family farm” on Obamacare’s surviving the legal challenges to an IRS rule about who is eligible for subsidies that are currently working their way through the federal courts.

“I don’t have a crystal ball,” Tribe told the Fiscal Times. “But I wouldn’t bet the family farm on this coming out in a way that preserves Obamacare.”

The law’s latest legal problem is that, as written, people who enroll in Obamacare through the federal exchange aren’t eligible for subsidies. The text of the law only provides subsidies for people enrolled through “an Exchange established by the State,” according to the text of the Affordable Care Act. Only 16 states decided to establish the exchanges.

The IRS issued a regulation expanding the pool of enrollees who qualify for the subsidies. Opponents of the law, such as the Cato Institute’s Michael Cannon and Jonathan Adler, argue that the IRS does not have the authority to make that change. (Halbig v. Burwell, one of the lawsuits making this argument, is currently pending before the D.C. Circuit Court; the loser will likely appeal the decision to the Supreme Court.)

“There are specific rules about when and how the IRS can deviate from the plain language of a statute,” Cannon explained to National Review Online, arguing that the subsidies regulation fails to comply with those rules.

The IRS can deviate from “absurd” laws, in theory, but the subsidies language is not absurd. “It might be stupid, but that’s not the test for absurdity,” Cannon says. Similarly, the IRS can deviate in the case of scrivener’s errors — typos, basically — but this is not a typo, Cannon says, because the language was written into repeated drafts of the law.

“They not only keep that language in there, but they even inserted it, this same phrase again, right before passage while the bill was in [Senate Majority Leader] Harry Reid’s office,” Cannon says. “So, it’s not a scrivener’s error, either.”

Keep reading this post . . .

Tags: Barack Obama , Obamacare , Supreme Court

Ted Cruz: Obama’s 20 Unanimous Supreme Court Losses Outpace Bush and Clinton


President Obama has seen 20 unanimous defeats before the Supreme Court during the five and a half years of his presidency, a pace that outstrips former presidents George W. Bush and Bill Clinton, according to a review of his record since 2009 by Senator Ted Cruz (R., Texas).

“President Obama’s unanimous Supreme Court loss rate, for the five and half years of his presidency, is nearly double that of President Bush and is 25 percent greater than President Clinton,” Cruz notes in a survey of how Obama’s lawyers performed before the high court. Bush lost 15 cases unanimously, while Clinton lost 23 — but those defeats came over an eight-year period. When Cruz released his first report on the topic in April of 2013, he pointed out that Obama had lost nine cases unanimously since January of 2012. This latest installment takes account of the four most recent unanimous rulings against Obama, and the seven handed down by the court before 2012.

The defeats include cases such: as Judalang v. Holder, when the court faulted the Obama team for making an “arbitrary and capricious” attempt to rewrite the rules governing who is eligible for relief from deportation; Henderson ex rel. Henderson v. Shinseki​, in which Obama’s lawyers argued wrongly “that the Department of Veterans Affairs can wholly ignore a veteran’s appeal of a VA regional office’s benefits ruling when the appeal was not filed within the 120-day deadline”; and Bond v. United States, in which the “DOJ argued that an international treaty gave Congress the power to create federal criminal law for wholly local conduct.”

“This tally does not capture all of the Obama Administration’s losing arguments, as it does not include unanimous rejections for more governmental power made in the Obama Administration’s friend-of-the-court (amicus) briefs supporting non-federal parties, which would put the Obama Administration’s losses much higher,” Cruz wrote.

The Texas freshman detailed the significance of Obama’s more recent defeats in his April 2013 report.

“If the Department of Justice had won these cases, the federal government would be able to electronically track all of our movements, fine us without a fair hearing, dictate who churches choose as ministers, displace state laws based on the president’s whims, bring debilitating lawsuits against individuals based on events that occurred years ago, and destroy a person’s private property without just compensation,” Cruz explained.

“When President Obama’s own Supreme Court nominees join their colleagues in unanimously rejecting the administration’s call for broader federal power nine times in 18 months, the inescapable conclusion is that the Obama administration’s view of federal power knows virtually no bounds,” he concluded.

You can see the whole Cruz series here.

Tags: Ted Cruz , Barack Obama , Supreme Court

The Intolerance at the Heart of the Hobby Lobby Decision Fury


Quick observation on the Hobby Lobby case . . . 

How many of us who aren’t Orthodox Jews would like to tell an Orthodox Jew, “you have to work on the Sabbath”? How many of us would like to tell a Muslim, you absolutely have to handle pork products? How many would like to tell a Mormon that they have to drink alcohol, or a Christian Scientist that they have to smoke?

I hope you don’t have desire to tell other people to violate their religious beliefs and consciences. You may not share those beliefs, and you may think they’re weird, or strange, or silly, but respecting others’ religious beliefs has been a core component of the United States of America going back to Plymouth Rock. (Yes, there are times in U.S. history when the country hasn’t always lived up to this ideal. This doesn’t mean that there’s no longer any point to attempting to live up to that ideal.)

The folks who run Hobby Lobby believed that these four forms of birth control, out of 20, amount to abortifacients, and thus they are, from their perspective, killing innocent human life. You can disagree with them. But all Hobby Lobby wanted to do was not pay for them. They didn’t ban them (although they may prefer that option, someday down the road). They didn’t swear to fire or punish any employee who used them. All they sought was to follow their consciences and not pay for something they believed equaled murder. Considering how any employee had the option of A) paying for those methods themselves or B) finding another employer, that doesn’t seem like an outrageous expectation on the part of the company.

There is a big difference between disagreeing with Hobby Lobby’s assessment of these four forms of birth control — or even concluding this view is cuckoo for Cocoa Puffs — and saying, “I want to use the power of the state to compel you to violate your conscience and religious teachings.” You would think that using the government and the force of law — fines and imprisonment! — to compel people to violate their conscience is something we want to avoid as much as possible. The law permits conscientious objectors to war. Certain states permit the use of peyote during religious ceremonies. The Supreme Court upheld the right to sacrifice animals in Santeria. As long as your practice of religious isn’t directly infringing upon the rights of others, the law is going to let you worship your God as you see fit.

On Facebook yesterday, I saw someone respond to the news by muttering, “Stupid religious people!” Whether or not you think this belief is stupid, a core part of America is the right to hold and practice that belief!

What we’re seeing in the reaction to the Hobby Lobby decision is some liberals’ desire to not allow people to be “stupid religious people” anymore; we must all be reconditioned, to bow before the will and judgment of our betters, who control the levers of the government.

Tags: Supreme Court , Obamacare , Hobby Lobby

A Well-Founded Loss of Confidence in American Government


Today from Gallup: “Americans’ confidence in all three branches of the U.S. government has fallen, reaching record lows for the Supreme Court (30 percent) and Congress (7 percent), and a six-year low for the presidency (29 percent). The presidency had the largest drop of the three branches this year, down seven percentage points from its previous rating of 36 percent.”

Considering the state of the economy and economic opportunity, health care, the Middle East ablaze, scandals, screw-ups and corruption at the IRS, NSA and VA with a crackdown on whistleblowers, chaos on our southern border with a deluge of unattended children, and gas prices hitting a six-year high despite a boom in domestic oil production… that lack of confidence appears spectacularly well-founded.

This is not a good environment to be a longtime government official — say, a former senator and Secretary of State asking Americans to see you as the right person to clean up the mess. As stated in today’s Jolt, “the problem for Hillary is that acknowledging the obvious would showcase her as the anti-populist candidate of 2016. She became immensely wealthy because of her political power, which smells a lot like cashing in on one’s elected office — toxic at a time when Americans feel like their elected officials don’t listen to them and don’t understand their struggles in this persistently lousy economy.”

Or as Kevin Williamson puts it:

Political power outlasts political office: Hillary Clinton is no longer secretary of state or a senator or in any of the other positions she has held as a form of tribute paid to her husband; but she very well may be a future president. She has been paid an enormous advance on a book that almost certainly will not justify that expenditure, and collects speech honoraria that are, if not quite up at her husband’s stratospheric levels, nonetheless substantial. What is she being paid for? It is hard to see how economic value, strictly understood, explains that… Political power is worth investing in, and worth renting when it is needed.

Considering the evidence, why should Americans have confidence in their government?

Governing is a lot harder than it looks from the outside.

Tags: Barack Obama , Supreme Court , Congress , Gallup

Knee-Jerk Finger-Pointing on Race Spreads to the Supreme Court


Also in today’s Jolt . . . 

Progressives’ Knee-Jerk Finger-Pointing on Race Spreads to the Supreme Court

Now we know: A liberal Supreme Court justice will tell another liberal Supreme Court justice to his face, with the whole country watching her read her dissent from the bench, that he doesn’t “understand about the reality of race in America” if she disagrees with his decision.

It’s been long lamented that there’s a particular nastiness to debates about race and racism in America, but it’s particularly jarring to see Sonia Sotomayor imply that six of her Supreme Court colleagues — including Bill Clinton’s appointee Stephen Breyer! — are oblivious or in denial about such a key topic.

To bring you up to speed, the Supreme Court ruled, 6-2, that a lower court did not have the authority to nullify a 2006 referendum — backed by 58 percent of voters — that bars publicly funded colleges from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin.”

Depending upon your point of view, Sotomayor offered an impassioned dissent and/or went ballistic, accusing her colleagues of ignoring racism:

“As members of the judiciary tasked with intervening to carryout the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Roberts responded with a short, sharp statement of his own.

“To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality,” Roberts wrote. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

. . . She said her colleagues ignored “the importance of diversity in institutions of higher education” and the decision “reveals how little my colleagues understand about the reality of race in America.”

I actually think there once was a strong and compelling argument for affirmative action for the descendants of slaves, and may still be. A key part of Americans’ ability to thrive since our founding is people’s ability to build upon the financial, intellectual, and cultural capital that they inherit from their parents. Even if your ancestors came here with nothing, they had a decent opportunity to hand something down to their children — be it land, money, heirlooms, or even just good values. Generation by generation, families built their wealth, or homesteads, or at least a bit of financial security. But for the 90 years or so after the Declaration of Independence, blacks couldn’t inherit anything. They couldn’t own much of anything. Their families could get split up and sold.

Once blacks were recognized as citizens under the law, they were still starting from effectively nothing. Because of their uniquely disadvantaged status for most of the first century of the United States — not mere garden-variety discrimination, but a near-absolute legal restriction on accumulating anything to leave to their children — you can make a compelling argument that they need(ed) some sort of leg up, some sort of extra help.

The question is . . . when is that leg up no longer needed? We have an African-American president. An African-American Attorney General. We’ve had two African-American Secretaries of State. Starting in the 1990s, just about every kid wanted to grow up to be like Mike, millions of women of every hue thought of Oprah as a personal friend, and in the sport of the ultimate symbol of the established white-privilege class, the country club, everybody wanted to be like multiethnic Tiger Woods, or at least the pre-scandal edition. Millions of white Americans sought to emulate African-American role models. Are there any ceilings left to be shattered, any barriers left to be broken? I’m sure this will be dismissed as the perspective of just another white guy, but how many barriers to success for African-Americans are still based upon racism, as opposed to other factors?

Notice where Sotomayor sees racism in today’s America:

“Race matters,” she wrote, to minority teenager who sees “others tense up as he passes;” to the young person addressed in a foreign language although she grew up in this country; to the young woman who is asked “No, where are you really from?”

“Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here,’” Sotomayor wrote.

Ah, she’s referring to “microaggressions,” what Dr. Derald Sue, a professor of psychology at Columbia University, characterized as an “everyday slight, putdown, indignity, or invalidation unintentionally directed toward a marginalized group.”

Do we want the Supreme Court litigating “everyday slights and indignities,” particularly if they’re unintentional? Look, an unfortunate fact of life is that the world has jerks and clods and those who will insult you, intentionally and unintentionally. (Does the First Amendment protect the freedom to speak everyday slights, putdowns, or invalidations unintentionally directed toward a marginalized group?) Doesn’t the fact that we’re talking about “microaggressions” suggest that we’re dealing with a comparably “micro” problem, requiring a shrinking of the government’s tool to address this problem?

And as a gentle reminder of perspective . . . we live in a world where ethnic cleansing, religious targeting, and targeted massacres are still going on in South Sudan, Syria, and other corners of the world. In the big picture, how big a problem is it if a person gets addressed in the wrong language?

Tags: Sonia Sotomayor , affirmative action , Supreme Court

Stevens: Fix Second Amendment to Remove “Any Limits” on Government Power


Retired Supreme Court Justice John Paul Stevens supports gutting the Second Amendment in order to remove any limit on government infringements on the right of self-defense.

In his new book Six Amendments: How and Why We Should Change the Constitution, Stevens — who generally favored maximum government power during his 35-year tenure on the high court — proposes, among other things, changing the language of the Second Amendment to the U.S. Constitution so that the amendment would read, “ . . . the right of the people to keep and bear arms [when serving in the militia] shall not be infringed.”

Stevens acknowledged in an interview Sunday that this would remove “any limits” on government power over legal gun owners.

“I think that’s probably right,” Stevens said on ABC’s This Week. “But I think that’s what should be the rule, that it should be legislatures rather than judges who draw the line on what is permissible.”

Stevens said his proposed amendment, and a potential nationwide gun ban, would be closer to the original intent of the framers of the U.S. Constitution than the amendment the framers actually wrote and adopted.

“There was a fear among the original framers that the federal government would be so strong that they might destroy the state militias,” he told ABC host George Stephanopoulos. “The amendment would merely prevent arguments being made that Congress doesn’t have the power to do what they think is in the best public interest.”

Stevens made clear that the amendment would clear the way for a national ban on private ownership of the means of self-defense. “I think that’s right,” Stephens said in a pre-recorded interview with Stephanopoulos, a former communications director and senior adviser in the Bill Clinton administration.

Tags: Gun Control , Second Amendment , Supreme Court , Sunday Shows April 20 2014

Romney Message: What the Court Didn’t Do Today, I Will Do on My First Day


The Romney campaign previews the candidate’s remarks on the Obamacare Obama Health Care Tax ruling:

•      Governor Romney disagrees with the Supreme Court’s decision. What the Supreme Court didn’t do on the last day of its session, Mitt Romney will do on his first day in office.

•      On Day One of a Romney Presidency, Mitt Romney will repeal Obamacare and replace it.

•      Let’s not confuse what the Court said today. The Court said that Obamacare is constitutional — but not that it’s good policy or good for the country.

•      Yesterday Obamacare wasn’t popular, today Obamacare isn’t popular.

•      Yesterday Obamacare was bad policy, today Obamacare is bad policy.

•      Obamacare is a job killer — it raises taxes, it cuts Medicare, and it puts government between patients and their doctors.

•      We have a path to defeating Obamacare and it is by electing a new president.

•      We urge everyone in the country who is opposed to Obamacare to join Mitt Romney in his campaign to replace President Obama. To defeat Obamacare, we must defeat President Obama.

Tags: Mitt Romney , Obamacare , Supreme Court

There Is Now Only One Way to Stop Obamacare: November.


Back during the Obamacare debate, President Obama vehemently insisted that the fees penalizing those who do not have health insurance were not a “tax increase.”

Today, the Supreme Court said that the individual mandate, and its fees for noncompliance, are constitutional, as long as they are properly understood as a “tax.” If they are called “fees,” then they are not; it appears Chief Justice John Roberts has surprised much of the legal and political world by siding with the four “liberal” justices on this one.

Today is an extraordinarily frustrating setback for opponents of Obamacare. But it is perhaps better that the law be repealed than struck down by the Supreme Court — a legislative mistake being corrected by legislative means. Of course, to fix this legislatively, January 2013 must see a Republican (or anti-Obamacare) House, a Republican Senate and President Romney.

When the Lewinsky scandal hit a critical moment, former President Bill Clinton reportedly told his advisers, “We’ll just have to win, then.”

If Obamacare is to be stopped . . . we’ll just have to win, then.

UPDATE: The Supreme Court just gave Mitt Romney a very, very useful line: “As President, I will repeal President Obama’s health care tax.”

ANOTHER UPDATE: In the comments I see the mis-perception that ending Obamacare will require 60 votes in the Senate.  Simple majorities in the House and Senate pass a budgetary bill that eliminates the tax penalty for not having health insurance, or all the funding for the enforcement of Obamacare (recall there is no filibuster of a budget bill), or both. Or on day one, President Romney could issue 50 exemptions to all of the states.

Under President Romney, everyone in America could get the same deal that fancy eateries, hip nightclubs and hotels in Nancy Pelosi’s district have gotten.

Tags: Barack Obama , Mitt Romney , Obamacare , Supreme Court

Why Is a Secure Border Politically Controversial?


From the Tuesday edition of the Morning Jolt:

Arizona Can Check if Criminals Are Here Illegally… But Then What?

The debate about illegal immigration in this country is particularly infuriating.

Is it terribly controversial to say, in an ideal world, the government of the United States would be able to control who comes in and goes out? That that sort of ideal circumstance would prevent terrorists, gang members, drug smugglers, people smugglers, etc. from coming in and creating problems ranging from the minor to the catastrophic? I realize the government will never have 100 percent control over our borders. I realize we live in an imperfect world, but shouldn’t we aim for as much control over the border as possible?

Okay, good. Now, I’m glad we have more boots on the ground than we used to have on our southern border. I’m glad that we have improvements for Janet Napolitano to brag about, but as PolitiFact noted:

The data DHS gave us is not enough to prove definitively that Napolitano’s claim that the agency has “seized more currency, more drugs, more outbound arms in the past year than any year in our country’s history.” We can say that seizures increased recently under the Obama administration, but they were so low in the past that the bump is not a major accomplishment. Also, the seized contraband is likely such a small percentage of what crosses the border that the increase’s impact on the illegal drug trade is slight.

A safer border is not necessarily a safe border.

Back in 2010, the federal government felt the need to post signs in Arizona that “warn travelers that they are entering an ‘active drug and human smuggling area’ and they may encounter ‘armed criminals and smuggling vehicles traveling at high rates of speed.’ Beginning less than 50 miles south of Phoenix, the signs encourage travelers to “use public lands north of Interstate 8” and to call 911 if they “see suspicious activity.” (The signs then got modified,  “Visitor Information Update- active federal law enforcement patrol area, clean-up and restoration crews at work, contact BLM rangers for current area status.”)

Once the public perceives that law and order has been restored to the border, the entire discussion about illegal immigration will change. Whatever option is decided for those currently living in the country illegally – an amnesty, deportation, a guest worker program, a DREAM Act – the country will at least feel secure that the situation isn’t going to get worse, that thousands or tens of thousands will not attempt to cross the border to get included in an amnesty.

Anyway, this is just to point out that the state of Arizona got into the immigration-enforcement business out of a widespread sense that the federal government refused to do its duties in immigration enforcement – and that there was some perverse cruelty in the federal government that had so thoroughly failed to mitigate the problems of an unsecure border and widespread illegal immigration going to court to prevent states from trying to do their job.

And now, thanks to five Supreme Court justices, Arizona is largely out of the immigration law enforcement business, with one exception.

Over at Bench Memos, Ed Whelan declares :

For anyone who entertains the hope that the majority’s ruling on section 2(B) makes the case some sort of significant victory for Arizona, I invite you to have your illusion dispelled by reading Justice Scalia’s dissent. As Scalia puts it in his final two paragraphs:

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.

Donald Douglas isn’t so glum: “Progressives will highlight that 3 of 4 of the law’s provisions were struck down. But the thing to emphasis is that it’s really the key provision that was upheld by the court — the authority for local law enforcement to determine the legal residency status of suspects in a lawful stop. That’s what’s been called “racial profiling” for these past few years. It’s what progressives targeted for defeat at the Court. In that sense, no matter what the left says, this is a huge defeat for the open borders extremists in the Democrat Party and the radical netroots fever swamps.”

William Jacobson sums up, “The net-net?  The federal government did better than many expected, particularly on section 6.  I don’t think many people thought state criminal sanctions and other state requirements would survive. Section 2(B) remains in effect for now, which politically is a lot more palatable, because the immigration status check only takes place after a lawful detention.  But there will be more litigation once the law is put into effect and applied.”

Tags: Arizona , Barack Obama , Illegal Immigration , Supreme Court

President/Constitutional-Law Lecturer Keeps Losing at the Court


On the front page of the Washington Post today, Robert Barnes notices that the administration headed by a former constitutional-law lecturer keeps losing at the Supreme Court, and it’s not even that close sometimes:

The Supreme Court this week will conclude its term by handing down much-anticipated rulings on health care and immigration, President Obama’s remaining priorities before the justices. It is a finale that cannot come quickly enough for the administration, which has had a long year at the high court. In a string of cases — as obscure as the federal government’s relationships with Indian tribes and as significant as enforcement of the Clean Water Act — the court rejected the administration’s legal arguments with lopsided votes and sometimes biting commentary.

Then again, as the Post noted yesterday, the legal strategy in the Obamacare case comes from the man at the top:

Obama, a former constitutional law instructor, and White House lawyers helped shape a legal strategy essentially portraying health care as a unique marketplace that Congress, under the Constitution’s interstate commerce clause, could regulate by imposing the requirement that consumers buy insurance before receiving treatment or pay a penalty.

Many liberals had criticized Solicitor General Donald B. Verrilli Jr. for a halting performance during the oral arguments on the case in March. But while Verrilli took the lead in shaping the government’s case, the broader strategy being questioned in some circles stemmed from a close partnership between the solicitor general’s office and the White House — with the strategy securing Obama’s approval.

And when the oral arguments concluded, Obama’s initial comments seemed to suggest he rejected the notion of judicial review, comments he had to walk back days later:

Attorney General Eric H. Holder Jr., bowing to an unusual demand of the United States Court of Appeals for the Fifth Circuit, in New Orleans, made official the backpedaling of the past few days over remarks by President Obama about the Supreme Court’s coming ruling on the constitutionality of his health care overhaul. Mr. Obama said on Monday that it “would be an unprecedented, extraordinary step” for the court to overturn the law.

Ever since, the White House has been struggling to explain what the president meant. Mr. Obama himself tried to clarify things on Tuesday, explaining that “the point I was making is that the Supreme Court is the final say on our Constitution and our laws, and all of us have to respect it, but it’s precisely because of that extraordinary power that the court has traditionally exercised significant restraint and deference to our duly elected legislature, our Congress.”

. . . Mr. Obama, himself a constitutional lawyer, never tried to defend the literal meaning of his words; apparently he meant either to express a more subtle thought or merely to voice a common campaign point about how judges sometimes overreach.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” he said on Monday.

Because the vote by which the health care law was enacted was razor-thin and largely partisan, and because the court’s powers have been established since Marbury v. Madison in 1803, the president’s words were false on both counts, declared.

And of course, Obama’s criteria for what makes a good Supreme Court justice was, in fact, an argument for unfairness; he disputed the notion that justice is blind, saying a Supreme Court justice should approach a decision with empathy for those affected by the ruling, a standard that Sonia Sotomayor herself disagreed with in her confirmation testimony.

But other than that, Obama knows this constitutional-law stuff backwards and forwards.

Actually, it’s not lack of knowledge; as President Reagan said, “the trouble with our liberal friends is not that they’re ignorant; it’s just that they know so much that isn’t so.”

Tags: Barack Obama , Obamacare , Supreme Court

Supreme Court Victory for the First Amendment


The Supreme Court decided Knox v. Service Employees International Union (SEIU) today, delivering an important victory for the First Amendment. 

The case originated in California, which is not a right-to-work state. There, public unions may collect dues from non-union workers and finance political campaigns, as long as they issue a “Hudson notice” allowing non-union members to opt out of political expenditures. This case arose out of the SEIU’s decision to campaign against two California ballot initiatives after already issuing a “Hudson notice.” To fund these additional campaign expenses, SEIU levied a temporary union fee increase without inviting non-union members to opt out. In practice, this forced the non-union members to pay for a political campaign they might oppose, at least until the next “Hudson notice.”

In response, the Supreme Court held

Under the First Amendment, when a union imposes a special as­sessment or dues increase levied to meet expenses that were not dis­closed when the regular assessment was set, it must provide a fresh notice and may not exact any funds from nonmembers without their affirmative consent.

In other words, as Justice Sotomayor’s concurring opinion argues, the Supreme Court found, “for the very first time, that the First Amendment does require an opt-in system in some circumstances: the levying of a special assessment or dues increase.”

This is a great win for the First Amendment and the freedom from forced political speech. It is easy to understand why anything hampering the ability of unions to extract money from the American workforce would make the far Left apoplectic. In 2005, an opt-in regime would have prevented the SEIU from using a fee increase to oppose two California ballot initiatives, one capping government spending, and the other restricting unions’ use of dues for political purposes. What is harder to justify is the objection to the Court’s ruling, which essentially gives workers the ability to decide for themselves whether they want to support the same political causes as the union imposing the fee. The ruling vindicates the First Amendment and puts public unions on the same playing field as every other entity that has to raise money by persuading people that its cause is worth a contribution.

Tags: Supreme Court

Does Obama Already Know the Supremes’ Decision on Obamacare?


Barring some dramatic break from procedure, the Supreme Court justices have already decided the fate of Obamacare, and are now just working out the written rulings and dissents.

Usually, it works like this: “For cases argued on Monday, the Justices vote on it on Wednesday. Votes on cases argued Tuesday and Wednesday are cast on Friday. The senior Justice voting with the majority assigns the job of writing the majority opinion and the senior Justice voting with the minority chooses who will write the minority opinion. While all Justices can add his or her own statements, the majority opinion stands as the final decision of the court.”

Perhaps for a decision as important as this one, the justices might want to take more time. But it was reported that the Supreme Court held its initial vote on the case Friday, March 30. The justices, and their clerks, are expected to keep the decision secret until the decision and opinions are officially announced. But many speculate that this case will be different; while there is no evidence to suggest that the newest justice, former Obama administration Solicitor General Elena Kagan, would break the code of silence, many wonder whether she would want the president to be blindsided by a decision that partially or completely nullifies his signature domestic policy achievement.

If we take this bit of evidence

President Barack Obama is confiding to Democratic donors that he may have to revisit the health-care issue in a second term, a position at odds with his publicly expressed confidence that the U.S. Supreme Court will uphold the Affordable Care Act, according to three Democratic activists.

As he previewed his agenda for donors at a May 14 fundraiser, Obama said he may be forced to try to revise parts of his health-care plan, depending on how the court rules later this month, said one activist, who requested anonymity to discuss the president’s comments. Guests at the $35,800-a-plate dinner in the Manhattan apartment of Blackstone Group LP (BX) President Tony James were asked to check their smart phones and BlackBerries at the door.

The president has made similar remarks, usually in response to questions, at other fundraising events since the Supreme Court heard arguments in the case during the last week of March, according to two other activists, who also requested anonymity.

with this bit of evidence

Though conversations inside the White House have been kept secret, several Democratic sources said that administration officials now believe that the law can stand without the individual mandate.

….the administration has privately considered alternative reform ideas, despite publicly insisting that such considerations would be premature. One aide put it this way: “When the decision comes down, we will be ready.”

Increasingly, the focus has turned to what would happen should the court rule the individual mandate unconstitutional but declare that it is severable from the rest of the law.

It certainly does start to look like the Obama administration is bracing for a ruling that declares the individual mandate to be unconstitutional. Of course, this could just be prudence on their part.

Tags: Barack Obama , Obamacare , Supreme Court

Curious Development in the Takings Clause


I recently co-authored a piece in Engage that asks: “Does the Takings Clause Have an Expiration Date?” The Supreme Court has already answered in the negative with a clear declaration that “[t]his ought not to be the rule” when it reversed the Rhode Island State Supreme Court in its 2000 decision Palazzolo v. Rhode Island, making clear that a transfer of title does not deprive a property owner of standing to challenge a regulation burdening his property. However, two recent cases have now made this clear answer into a murky one.

In the last term, the high court could have granted the petitions for certiorari for Guggenheim v. City of Goleta (Ninth Circuit) and for CRV Enterprises v. United States (Federal Circuit). In both cases the courts of appeals sidestepped the Supreme Court’s holding in Palazzolo. Because the high court had already clearly decided this question, many court observers thought both of these Fifth Amendment cases would be granted certiorari or even be summarily reversed by the high court. Inexplicably, neither happened, leaving property rights in those respective circuits less protected than in the rest of the country, which in theory would still follow Palazzolo.

My article argues that the Supreme Court had it right in Palazzolo: An unconstitutional regulation cannot be laundered into a constitutional regulation by the transfer of title of the property. Imagine that the federal government issued a regulation that required the Wall Street Journal to publish flattering stories about a particular issue, and subsequently the WSJ changed ownership. Under the Ninth and Federal Circuit’s legal reasoning, the new owners of the WSJ would not even have standing to challenge such an obviously unconstitutional regulation because said unconstitutional regulation existed prior to the transfer of title. To borrow a phrase used last week by Paul Clement in arguing a different matter before the high court, that theory largely refutes itself.

Tags: Supreme Court

What a Difference a Day Makes for Obamacare!


The midweek edition of the Morning Jolt has more on Obama’s potential future “flexibility” with Russia, the maddening pace of Mad Men, but most of it examines the big news out of yesterday:

Obamacare Had a Bad Day, Court’s Taking One Down, You Sing a Sad Song Just to Turn It Around

Behold the glory of low expectations. Most Obamacare opponents thought they had a pretty strong argument before the Supreme Court, and perhaps they might nudge likely swing vote Justice Anthony Kennedy in their direction a bit in Tuesday’s oral arguments.

Instead, by the end of the day, the perception was that at the very least, the individual mandate is starting to see the Supreme Court as a … well, death panel, I suppose you could say.

One of the first signals of Tuesday’s courtroom proceedings came from Tom Goldstein at SCOTUSBlog, just before noon: “Based on the questions posed to Paul Clement, the lead attorney for the state challengers to the individual mandate, it appears that the mandate is in trouble.  It is not clear whether it will be struck down, but the questions that the conservative Justices posed to Clement were not nearly as pressing as the ones they asked to Solicitor General Verrilli.  On top of that, Clement delivered a superb presentation in response to the more liberal Justices’ questions.  Perhaps the most interesting point to emerge so far is that Justice Kennedy’s questions suggest that he believes that the mandate has profound implications for individual liberty: he asked multiple times whether the mandate fundamentally changes the relationship between the government and individuals, so that it must surpass a special burden.  At this point, the best hope for a fifth or sixth vote may be from the Chief Justice or Justice Alito, who asked hard questions to the government, but did not appear to be dismissive of the statute’s constitutionality.”

Then CNN legal analyst Jeffrey Toobin went on the air and just dropped a rhetorical bomb:

CNN’s legal correspondent Jeffrey Toobin reports that the court’s conservative wing appeared skeptical of the Obama administration’s arguments in favor of the individual mandate provision of the Affordable Care Act.

“This was a train wreck for the Obama administration. This law looks like it’s going to be struck down,” Toobin said on CNN. “All of the predictions including mine that the justices would not have a problem with this law were wrong.”

“The only conservative justice who looked like he might uphold the law was Chief Justice Roberts who asked hard questions of both sides, all four liberal justices tried as hard as they could to make the arguments in favor of the law, but they were — they did not meet with their success with their colleagues,” Toobin said.

How much did Toobin’s dramatic assessment change the conventional wisdom in Washington? Well, for starters, Senate Majority Leader Harry Reid felt the need to denounce him.

Reid reacted to CNN legal analyst Jeffrey Toobin’s remark that the healthcare law “looks like it’s going to be struck down” because of the tenor of the morning’s hearing.

“I’ve been in court a lot more than Jeffrey Toobin and I had arguments, federal, circuit, Supreme Court and hundreds of times before trial courts,” Reid said. “And the questions you get from the judges doesn’t mean that’s what’s going to wind up with the opinion.” 

As we all know, a justice’s questions don’t necessarily indicate how they’ll vote on the final decision. But a couple points in Toobin’s favor in sorting this out: for starters, Toobin appears to like Obamacare and so this is an admission against his interest. Heck, he even declared that his previous assessment was wrong. (This is Washington. Nobody ever admits that they’re wrong!)

Second, I’m not so sure that Reid really has spent more time in a courtroom than Toobin. One would think that Senate work would preclude Reid from having much time for a private law practice, so Reid’s working life probably hasn’t focused primarily on work as a lawyer since, oh, at least 1986. Oh, wait, Reid served two terms in the House before that. Oh, wait, he was lieutenant governor from 1971 to 1974.

Third, analyzing the Supreme Court and legal matters is Toobin’s primary job, and so he’s putting a lot of his reputation on the line for offering such a resounding assessment. He’s been watching the Supreme Court for a lot of years, and for whatever beef we might have with Toobin’s ideology or legal philosophy, it’s not like he’s an amateur when it comes to analyzing how the justices think and what arguments are likely to sway them.

 Fourth, you could simply not find an analyst who was in the room who thought the Solicitor General did a good job. This was the aspect that was so amazing about all this. Don Verrilli might be a really good lawyer and in fact, he has to be to rise to the level he has in his profession. It’s probably not fair, but he’s just become the Scott Norwood of Supreme Court arguments.

Fifth, for a guy who was on JournoList to tell liberals something they don’t want to hear… well, it must be pretty stark, I’d suspect.

Shortly after the Toobin report, you started seeing headlines like, “People Are Saying That Obama’s Healthcare Law Got Massacred At The Supreme Court Today”.

You do not often see the word ‘massacre’ in headlines about oral arguments before the Supremes.

At Hot Air, Allahpundit warns us to not count our chickens before they hatch:

If Kennedy can be persuaded that health care is sui generis, maybe he’ll split the baby by voting to uphold ObamaCare while emphasizing that a mandate for any other industry would be flatly unconstitutional. Not sure how that argument will work — listen to Roberts in the second clip below wonder why a cell-phone mandate would be any different than one for health insurance — but that’s the left’s best hope. Speaking of which, their explanation for today’s disaster appears to be not that they have a weak case on the merits but that Donald Verrilli’s performance was the legal equivalent of fumbling 10 times in the Super Bowl. In fairness to them, some of his exchanges with the Court are painful to read; the liberals on the bench had to bail him out repeatedly. But look: No case of this magnitude is being decided by oral arguments. If you think Breyer and Kagan and Sotomayor and Ginsburg were aggressive in arguing his case for him today, wait until they start going to work on Kennedy behind closed doors. Obama has four very good lawyers on his side in the Supreme Court’s chambers. Verrilli’s performance is unfortunate and terrible optics for O-Care’s superfans, but it’s not changing any votes.

UPDATE: This morning, the RNC unveils a video that almost makes one feel sorry for Verrilli:

Tags: Barack Obama , Obamacare , Supreme Court

Could an Obamacare Ruling Doom Obama’s Reelection Hopes?


Michael Scherer of Time pointed out on Chuck Todd’s “Daily Rundown” that if the Supreme Court declares Obamacare’s individual mandate unconstitutional, it creates an enormous opportunity for the GOP against Obama in the fall, exacerbating public doubts about President Obama’s judgment.

Obama passed a stimulus that did not keep unemployment below 8 percent, as projected, but instead unemployment remains above 8 percent in February 2012. The cornerstone of the plan was “shovel-ready projects” and they turned out to not be so shovel-ready after all. He expressed surprise to his cabinet that his policies to help homeowners haven’t had much of an impact.  The “recession turned out to be a lot deeper than any of us realized.” 

His energy policies have Americans paying more for gas than they’ve ever paid during this time of year. We’ve given millions in taxpayer money to companies to develop alternative technologies, and their products have proven costly and inefficient in a competitive market.

He reached out to Iran and was rebuffed; meanwhile, our relationship with Israel has never been more tense.

And the signature piece of legislation that he spent most of 2009 and 2010 on, that cost House Democrats their majority, might just turn out to be unconstitutional — and effectively immediately nullified with that ruling.

When does the president’s good judgment start?

Of course, if you’re Mitt Romney, the Supreme Court upholding the mandate as constitutional could be good news, as it would tell conservatives that the only way to stop Obamacare is to elect Romney. But Obama would undoubtedly claim some vindication that the nation’s highest court found nothing unconstitutional about the federal government requiring citizens to purchase health insurance.

Tags: Barack Obama , Obamacare , Supreme Court

The Who of Kagan


Excerpts from Kagan’s opening statement before the Senate Judiciary Committee are available here

Two notes: 1.  Her final remarks could be different, but in the excerpts she does not mention Harvard by name.  Perhaps she was advised that bouncing between Cambridge, Manhattan, and D.C. undermined the White House’s mantra that she will be The People’s Justice. 

2.  Like Sotomayor, Kagan is embracing the terminology of the Right.  According to Kagan, “what the Supreme Court does is to safeguard the rule of law, through a commitment to even-handedness, principle, and restraint.”  In the immortal words of The Who, “Don’t get fooled again.”

Tags: Elena Kagan , Opening Statement , Senate , Supreme Court

Kyl vs. Kagan


Senator Jon Kyl used his opening statement to unleash a torrent of criticisms against Kagan.  He belittled her experience, making the accurate point that other SCOTUS nominees without judicial experience have had “actual” legal experience, as contrasted with Kagan’s two years doing document review at a big law firm.  He questioned her choice of judicial heroes, Aharon Barak and Thurgood Marshall, and accused her of embracing their activist philosophies.  And he accused her of being precisely the sort of rubber stamp Obama was seeking for his domestic-policy agenda.   I hope the MSM was watching. It seems to me that the White House has successfully convinced them that this nomination has created little traction for Republicans and Kagan opponents — that Kagan has successfully flown under the radar — because the Washingon Post hasn’t had a daily item about some Macaca moment.  But that’s hard to square with the facts.  As recent polls have shown, support for Kagan has dropped since her announcement.  How do they explain that?  Or how do they explain Senator Kyl’s aggressive opening statement — bearing in mind that he has been a proponent of deference to presidential prerogatives?   Whether Kagan’s boosters in the press like it, Kagan’s decision to kick the military off the Harvard Law School campus has received widespread notice.  The fact that she has no judicial experience and mostly political experience has penetrated.  And the argument that she could be Obama’s rubber stamp makes sense to the ordinary person.  Does that mean her nomination will be rejected? Of course not.  But this is not a moment of triumph for White House spinmeisters — their candidate would lose an election.  It is impossible to listen to statements by Senators Hatch and Kyl, for instance, and not conclude that it is only because the deck is stacked 58 (for now) to 41 that Kagan has a prayer.

– Gary Marx is executive director of the Judicial Crisis Network.

Tags: Elena Kagan , Jon Kyl , Senate , Supreme Court

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