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10
Jul 2012

Roberts off the Rails?

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In the wake of the surprising ObamaCare decision, a great deal of the post-decision commentary has focused on Chief Justice Robert’s role — and particularly on the suggestions that he switched his position mid-course:

Chief Justice John Roberts initially sided with the Supreme Court’s four conservative justices to strike down the heart of President Obama’s health care reform law, the Affordable Care Act, but later changed his position and formed an alliance with liberals to uphold the bulk of the law, according to two sources with specific knowledge of the deliberations.

Roberts then withstood a month-long, desperate campaign to bring him back to his original position, the sources said. Ironically, Justice Anthony Kennedy – believed by many conservatives to be the justice most likely to defect and vote for the law – led the effort to try to bring Roberts back to the fold.

Read Jan Crawford’s full story here.  An interesting aspect of the story, beyond the obvious, is the evidence the story shows of leaks from the Supreme Court — an institution that is historically known for a lack of such leaks. The Volokh Conspiracy folks have some interesting posts on the leak story, see here and here. Slate has an informative story explaining that the Court’s reputation for a lack of leaks is actually undeserved:

The Supreme Court isn’t supposed to be like other institutions. It’s supposed to be something more, a place above partisan squabbling, insulated from the unseemly back and forth of politics. The court’s nine justices are the final arbiters of our biggest legal questions, and much of their work is supposed to be done behind closed doors. They hold oral arguments and release decisions—and remain a mystery to most people.

That’s what made CBS’s Jan Crawford’s story on July 1 so shocking. Crawford reported that Chief Justice John Roberts voted to strike down the heart of the Affordable Care Act before changing his mind and siding with the court’s liberal bloc. Her story cited “two sources with specific knowledge of the deliberations” among the justices, and it noted that Roberts’ “switch” was “known among law clerks, chambers’ aides and secretaries.”

The collective reaction of pundits and legal commentators seemed to be, gasp, “How could this happen? How could the Supreme Court leak?” Harvard Law School’s Jack Goldsmith hadjust argued that the court is typically “better at stopping leaks” than other government institutions. Time’s Adam Sorensen described Crawford’s story as a “once-in-a-lifetime scoop.” Robert Shrum, like many others, described the leaks as “unprecedented.”Meanwhile, Orin Kerr, a law professor at George Washington University, wrote on the legal blog The Volokh Conspiracy that “the leak is pretty incredible” and that he “can’t remember anything quite like” it.

No doubt the leak is incredible, and no doubt the justices are good at keeping secrets. But there is nothing unprecedented about the Supreme Court dishing on what happens behind the red curtain. The court has a long and colorful history of leaks that dates back to the mid-19th century. Just like last week, leaks have sprung in the past commenting on a decision soon after the justices released it. Inside accounts of the personal relationships among the justices have long been served up to journalists. Indeed, some court opinions have leaked even before the justices had a chance to announce them.

Moving on from the leak issue, there are a great many stories analyzing the decision itself. Here are a few:

Also interesting are the looks at the aftermath of Roberts’ switch:

It’s also worth checking out Rasmussen’s post-decision poll of the public’s view of the Supreme Court reported on July 1:

Public opinion of the Supreme Court has grown more negative since the highly publicized ruling on the president’s health care law was released. A growing number now believe that the high court is too liberal and that justices pursue their own agenda rather than acting impartially.

A week ago,  36% said the court was doing a good or an excellent job. That’s down to 33% today. However, the big change is a rise in negative perceptions. Today, 28% say the Supreme Court is doing a poor job. That’s up 11 points over the past week.

The new Rasmussen Reports national telephone survey, conducted on Friday and Saturday following the court ruling, finds that 56% believe justices pursue their own political agenda rather than generally remain impartial. That’s up five points from a week ago. Just half as many — 27% — believe the justices remain impartial. (To see survey question wording, click here.)

On an interesting end note, Tom Goldstein has a lengthy investigative piece detailing the ten minutes or so on decision day when two major news outlets actually had the story wrong.

Here’s Paul Ryan’s take (click here to view video at foxnews):


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Categories: Constitutional Rights, Health Care, SCOTUS
28
Jun 2012

ObamaCare Decision: Early Roundup

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For those wanting to dive right in, here is the opinion.

Up front, there are two silver linings: (1) the court did NOT vote that the Commerce Clause allows for the individual mandate (tiny solace there); (2) states CAN opt out of the Medicaid expansion without losing all federal funding — they only lose new funds. As Lyle Deniston of SCOTUSblog pointed out this morning:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Other good news is political: this now gets hung around Obama’s neck for the duration of the election cycle.

On to the early explanations and analysis.

SCOTUSblog’s early “In Plain English” explanation of the decision from the Live Blog:

The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

The WSJ’s early analysis is out here:

 The court said Congress was acting within its powers under the Constitution when it required most Americans to carry health insurance or pay a penalty—the provision at the center of the two-year legal battle.

The ruling is a victory for Democrats and President Barack Obama, who had passed the biggest reworking to the health system since the creation of Medicare in the 1960s and faced the prospect of the court nullifying their effort. It also averts disruption for hospitals, doctors and employers who have spent more than two years preparing for changes in the law.

* * *

Although the law survived the court challenge, it faces an uncertain future. Republican presidential candidate Mitt Romney and GOP congressional leaders have pledged to repeal the law if they take control of Congress and the White House in November elections.

The court’s decision, while a relief to Democrats, could further energize voters who dislike the law to back Republicans in November. And it forces the Obama administration to continue defending the unpopular insurance mandate.

On the other hand, the court’s blessing could itself shape public opinion of the law, particularly among independents and undecided voters who view the justices as relatively free of the partisan agendas of the government’s elected branches. Polls consistently show that the public places greater confidence in the Supreme Court than either Congress or the presidency, although the justices’ approval ratings have slipped somewhat over the past year.

Analysis from SCOTUSblog:

Salvaging the idea that Congress did have the power to try to expand health care to virtually all Americans, the Supreme Court on Monday upheld the constitutionality of the crucial – and most controversial — feature of the Affordable Care Act. By a vote of 5-4, however, the Court did not sustain it as a command for Americans to buy insurance, but as a tax if they don’t. That is the way Chief Justice John G. Roberts, Jr., was willing to vote for it, and his view prevailed. The other Justices split 4-4, with four wanting to uphold it as a mandate, and four opposed to it in any form.

Here is early commentary from Reason:

In the main dissent from today’s Supreme Court ruling upholding the Patient Protection and Affordable Care Act, four justices (Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito) say the individual health insurance mandate goes beyond anything that has passed muster under the Commerce Clause before:

The striking case of Wickard v.  Filburn, 317 U. S. 111 (1942), whichheld that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficientlythat it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not  an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity.

Thomas goes further in a separate dissenting opinion, where he reiterates his longstanding position that the “substantial effects” test underlying Wickard “is inconsistent with the original understanding of Congress’ powers and with this Court’s early Commerce Clause cases.” Quoting himself, he says the test “has encouraged the Federal Government to persist in its view that the Commerce Clause has virtually no limits.”

Chief Justice John Roberts, who wrote the majority opinion, agrees with the dissenters that the mandate does not qualify as a regulation of interstate commerce (which is why his argument rests on the tax power instead)

On the lighter side, Katherine Mangu-Ward compiles the broccoli references in the opinions here.

From Roger Pilon at CATO:

Even though the Supreme Court action today is a setback for those of us who’ve fought for decades to revive limited constitutional government, it’s hardly the end of the road. The ideas this litigation put in play – in the court decisions below, in the oral arguments before the Supreme Court, and in the huge debate that has taken place across the country – will not go away. They’re the ideas of limited constitutional government that are as compelling today as they were when the Founders first articulated them over two centuries ago, even if this Court has found itself unable to give them force in this case.

But it’s not simply that the ideas are now “out of the bottle” as they haven’t been for a very long time. More deeply, it’s because they address the fundamental problem the nation faces today – out-of-control government, at all levels, giving us a looming economic disaster – that they’ll increasingly be in play. After today’s decision, it will fall to the people themselves, who’ve opposed this legislation from the beginning, to elect a Congress that stands for restoring limited constitutional government, such that a future Court will be better able to do what this Court should have done.

Human Events has some early GOP reactions:

The first reaction I saw came from Sarah Palin, via Twitter: “Obama lied to the American people.  Again.  He said it wasn’t a tax.  Obama lies, freedom dies.”

Rep. Michele Bachmann, who said she would be present in the courtroom when the decision was announced, was quick to Tweet as well: “SCOTUS announced ObamaCare substantially upheld.  Disappointing, but we move forward and we WILL repeal it.”

Statement from the office of House Speaker John Boehner: “The president’s health care law is hurting our economy by driving up health costs and making it harder for small businesses to hire.  Today’s ruling underscores the urgency of repealing this harmful law in its entirety.  What Americans want is a common-sense, step-by-step approach to health care reform that will protect Americans’ access to the care they need, from the doctor they choose, at a lower cost.  Republicans stand ready to work with a president who will listen to the people and will not repeat the mistakes that gave our country ObamaCare.”

Rep. Tim Huelskamp (R-KS) was blunt: “When they look back on the American system of once-limited government, June 28, 2012 will stand as a definitive date in the advance of government tyranny.  Today, a slim majority of the Supreme Court turned our Constitution on its head, and ruled that the federal government, in effect, can force upon the American people anything it damn well pleases – as long as it is called a tax.  Unlimited federal power, combined with judicial activism, has crafted a new regime that has destroyed our Founders’ vision.”

Read full piece for more. Speaker John Boehner has promised a new vote to repeal ObamaCare in the U.S. House the week of July 9.

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Categories: 2012 Election, Constitutional Rights, Health Care, SCOTUS
28
Jun 2012

Decision Day: pre-decision tools

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For those awaiting the ObamaCare decision this morning, here are a couple of useful posts to check out in the meantime.  In just under half an hour, if you’re watching online, you should be doing so at this link.

First, a “reader’s guide” to the decision(s):

Supreme Court decisions are issued in a predictable format.  What they say, though, is far from predictable.   And, with the decision expected Thursday in the health care case, figuring out what it says will be complicated by the near-certainty that the Court will not be unanimous.  While an opinion that speaks for a majority — that is, at least five Justices – will be the one that controls the bottom line (what is actually decided), any added opinions may better illuminate or even limit the scope of the outcome or, in fact, help to create multiple outcomes.  Indeed, a case can be decided with less than five Justices agreeing on the reasoning, but at least that many have come together on the bottom line.  That makes it even more important to find out what is in the separate opinions.

Obviously, then, this can be daunting, even for one who has experience in reading Supreme Court opinions, but especially for someone encountering an opinion for the first time.   Fortunately for both regular and new readers, there is almost always a very helpful and much shorter discussion of what has been decided, and it comes out with the opinion itself — indeed, it makes up the opening pages of the  document.  It is sometimes called the “headnote,” but the Court calls it a “syllabus.”   Whatever its name, its function is clear: to describe, in dependably accurate terms, what the Court has decided and how the Justices have voted.

SCOTUSblog also has a summary of the issues to be decided:

If the Court does decide to decide, it has four issues before it — three of which are somewhat clustered, and one of which stands somewhat (but not entirely) alone.

The three that are definitely bunched together could be decided with a ruling on just one of them, or with a ruling on just two, or with a ruling on all three, separately.   Those three issues all relate to the insurance mandate, or what is technically labeled the “minimum coverage” provision.   By that provision, the most controversial of all, Congress declared that virtually every American (there are a few exceptions) must obtain health insurance before the year 2014, or else pay a financial penalty with their tax returns until they do get a policy.

So the individual mandate is one of the clustered issues.  The second is whether the Court has the authority to decide the fate of the mandate.  And the third is whether, if the mandate is struck down as unconstitutional, other parts of the massive Affordable Care Act must fall with it — if any.

The authority-to-rule question turns upon the meaning of a section of the federal Anti-Injunction Act, first enacted by Congress in 1867.  That section was designed to protect the federal government’s capacity to continue collecting tax revenues, to keep the national government running.  It says simply that no one may go to court to challenge a tax law before it actually goes into effect, and before they have been compelled to start paying the tax-related penalty.   If the AIA is found to be binding in this case, then the mandate’s fate (if not repealed by Congress in the meantime) could not be decided until after it goes into effect in 2014.   The final answer might not be known until sometime in 2015, after another round of court review.

The choice before the Court on the AIA issue might appear to be an easy one:  if the individual insurance mandate is a tax law, then no one is legally free to challenge it in court now, and all cases focused on that issue would have to be dismissed as beyond judicial authority at this time.  But it actually is not easy.   The Court must first decide whether the individual mandate is a tax provision, based on its presence in the tax code and the fact that it has a tax-related penalty, plus the further fact that it will, indeed, raise a good deal of revenue.  And, even if it is deemed a tax provision, does the federal government have a right to waive the AIA block to litigation over its validity or is this the kind of jurisdictional law that can’t be waived?

Suppose that the Court finds that the AIA does apply.  That takes off the Court’s agenda a decision on the mandate itself, and, obviously, also removes any need to decide what other parts of the law fall with it.  That is the three-in-one potential of the AIA question.

But suppose the Court were to rule that AIA does not apply, perhaps because the mandate is not a tax provision at all, or perhaps because it is, but it can be waived in a case like this.  Then the Court would have to move on to the second of the clustered issues: is the mandate, in fact, unconstitutional?   If the Court upholds it as constitutional, that makes it unnecessary to decide the third item in the cluster: what else falls with the mandate, or does none of it fall?   But if the mandate is struck down, the Court has to get to that third issue (which is called the “severability” question, because it involves deciding whether the invalid part of a law can be sliced off from all, or at least part, of the rest).

If the mandate is nullified, the severability issue would be a really hard one for the Court to resolve. Would it go through the hundreds of pages of the Affordable Care Act, and pick and choose which provisions are tied to the mandate and which are not, or would it pass that issue off to a lower court or to Congress?  During the hearings on severability in March, the Justices showed a distinct distaste for handling that task themselves.

This brings the summing-up to the fourth issue, in some ways separated.  That issue is whether Congress exceeded its constitutional powers by enacting, as part of the new law, a very wide expansion of eligibility for the government-subsidized Medicaid program of providing medical care to the poor.   This may be thought of as separate from the clustered three issues, because a decision not to decide the mandate and severability issues (because the AIA prevents such a ruling) would not affect the need to decide the challenge to the broader Medicaid eligibility.

But before getting further into that question, it is necessary to point out that, in fact, it may not actually be separated from the mandate and its associated cluster issues.  If the Court strikes down the mandate, and then concludes that all of the rest of the law must go with it, then the Medicaid expansion, too, is dead.  And, if the Court strikes down the mandate, but not all of the rest of the ACA, then it must still address whether at least the Medicaid expansion will be among the doomed provisions.

Suppose, though, that the Medicaid expansion does avoid being nullified.   The Court must then decide whether to do something it has not done to a federal law in three-quarters of a century: strike down a law that Congress enacted by using its power under the Constitution’s Spending Clause.  (The mandate part of the law was based upon the Commerce Clause, not the Spending Clause.)  Three times since the last use of the Court’s power to nullify a federal law was used against a Spending Clause measure, the Court has said that it might be possible that the conditions Congress imposed on someone receiving federal funds were so onerous that they would amount to coercion.   In other words, the conditions actually forced the recipient of money to make a choice it would not otherwise make.

In mentioning the “coercion” possibility, the Court has done so in the context of complaints by state governments that a federal spending program under which they could get funds was being enforced with such harsh conditions that the states’ choice to take part, or not, was being coerced, thus compromising their sovereignty and dignity within the Federal Union.   The Court has never actually used the “coercion” theory to nullify any federal law, but it has at least agreed to consider it as it weighs the validity of the Medicaid expansion.   That is the very hard fourth question that may well remain after the Court has done what it is going to do with the mandate.

The states challenging the ACA have argued that the entire Act must fall, on the theory that all of its parts are interlocking and must stand or fall together.  The federal government has argued that many of the ACA’s parts have little or even nothing to do with the mandate, and that, therefore, the only parts of the law that should go down if the mandate does are the command that insurance companies may not turn aside individuals because they have pre-existing medical conditions, and the separate provision that limits insurers in varying their premium rates because of the age or medical health of those who seek coverage.   But there is also an argument in the case that, whatever the fate of the mandate, the rest of the ACA should remain intact and working.

Look for further posting after the decision comes out and smart folks have begun dissecting it.

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Categories: Health Care, SCOTUS
25
Jun 2012

SCOTUS Update: Immigration and Campaign Finance

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The Supreme Court issued decisions in two significant cases this morning, and it is now clear the ObamaCare ruling will be handed down on Thursday morning at 10am on the east coast.

First, in the long-anticipated ruling on Arizona’s SB 1070, the Court struck down much of the law while leaving in place one of the more controversial measures (opinion). SCOTUSBlog has a good summary of the ruling:

Here is a rundown on the Court’s ruling with respect to each relevant challenge:

1.  Police Checks.  Section 2(B) of the law requires the police to check the immigration status of persons whom they detain before releasing them.  It also allows the police to stop and detain anyone suspected of being an undocumented immigrant.  The Court held that the lower courts were wrong to prevent this provision from going into effect while its lawfulness is being litigated.  It was not sufficiently clear that the provision would be held preempted, the Court held.  The Court took pains to point out that the law, on its face, prohibits stops based on race or national origin and provides that the stops must be conducted consistent with federal immigration and civil rights laws.  However, it held open that the provision could eventually be invalidated after trial.

2.  State Law Crime of Being In The Country Illegally.  Although federal law already makes it illegal for someone to be in the country without proper authorization, Section 3 of the Arizona statute also makes it a state crime, subject to additional fines and possible imprisonment.  The Court held that this provision was preempted and cannot be enforced.  The Court held that Congress has left no room for states to regulate in this field, even to implement the federal prohibition.

3.  Ban on Working In The State.  Section 5(C) of the statute also makes it a state crime for undocumented immigrants from applying for a job or working in the state.   It is also held preempted as imposing an obstacle to the federal regulatory system.  Because Congress obviously chose not make working in the country without proper authorization a federal crime, states cannot enact additional criminal penalties Congress decided not to impose.

4.  Warrantless Arrest Of Individuals Believed To Have Committed A Deportable Crime.  Section 6 of the statute authorizes state law enforcement officials to arrest without a warrant any individual otherwise lawfully in the country, if law enforcement officials have probable cause to believe the individual has committed a deportable offense.   The Court held that this provision is preempted.  Whether and when to arrest someone for being unlawfully in the country is a question solely for the federal government.

The full post has additional information worth checking out. Here is the WSJ early story on the ruling. PubliusNM has earlier coverage of SB1070 here, here, here, and here.

Second, the Court reversed the Montana Supreme Court’s ruling on corporate spending in state elections (opinion). From the WSJ’s Law Blog:

The U.S. Supreme Court has issued a summary reversal of the Montana Supreme Court’s decision to uphold a state law that prohibited corporate spending in state elections. The U.S. court said the question in this case was whether the Citizens United decision, which established that corporate spending in elections is permitted as a matter of free speech, applied to the Montana state law. “There can be no serious doubt that it does,” the court wrote.

The summary reversal was not an unexpected outcome. As Adam Liptak of the New York Times pointed out earlier this month, the court has issued summary reversals nine times this year, prior to this case, in which it issued unsigned opinions ruling on the merits of a dispute without full briefing or oral argument.

Justice Stephen Breyer wrote the dissent and was joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan. Justice Breyer said that he disagreed with the court’s holding for the same reasons laid out in Justice Stevens’ dissent in Citizens United, and added that the court’s legal conclusion “should not bar the Montana Supreme Court’s finding, made on the record before it, that independent expenditures by corporations did in fact lead to corruption or the appearance of corruption in Montana.”

Justice Breyer added that “given the court’s per curiam disposition, I do not see a significant possibility of reconsideration.”

In a third interesting ruling for those who follow criminal law and procedure issues, the Court ruled that mandatory life without parole sentences for juveniles violate the Eighth Amendment (opinion). Here is the SCOTUSBlog summary:

Justice Kagan announced the opinion for the Court in Miller v. Alabama andJackson v. Hobbs, holding, in a five-to-four vote, that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” The Court has previously shown leniency to juveniles, holding in Roper v. Simmons (2005), that juveniles cannot be sentenced to death, and in Graham v. Florida (2010), that juveniles cannot be sentenced to life without parole for non-homicide offenses. This case continues that trend.

Evan Miller and Kuntrell Jackson were each convicted of capital murder. At the time of the relevant offenses, they were fourteen years old. Neither committed his offense alone. In Miller’s case, he and another boy beat and robbed a neighbor, who died after they lit his house on fire; in Jackson’s case, he and two others robbed a video store, and one of the others shot and killed the store clerk. Both were convicted of capital murder and sentenced to life without parole, under sentencing regimes (in Alabama and Arkansas) that render such sentences mandatory, without consideration of the offender’s age or mitigating circumstances. According to the Equal Justice Initiative, which represented both Miller and Jackson before the Court, there presently are approximately seventy-nine individuals currently serving life-without-parole sentences for crimes they committed at age thirteen or fourteen. The Court further explains that approximately 2500 people are serving life without parole for crimes they committed before they were eighteen.

* * *

Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined the majority opinion in full. Justice Breyer, joined by Justice Sotomayor, concurred separately to argue that on remand, if the state continues to seek the death penalty for Jackson, it will have to determine whether he individually killed or intended to kill the victim in his case.

The decision also provoked three separate dissenting opinions, by the Chief Justice, by Justice Thomas, and by Justice Alito, who read his opinion from the bench. The theme of the dissents is that the Court should have been more deferential to the moral judgments enacted by state legislatures, who are in a better position to determine the seriousness of crimes and to calibrate penalties appropriately. The dissents also expressed the view that the Court’s Eighth Amendment jurisprudence has become unmoored from objective standards, and that decisions like Graham and the decisions today continue that trend.

For those interested in real-time (or close to it) updates on the health care decision Thursday morning, SCOTUSBlog has useful resources in place as we described earlier.

 

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Categories: Campaign Finance, Constitutional Rights, Illegal Immigration, SCOTUS
11
Jun 2012

Resource on ObamaCare Decision Day

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For those of us who want to see timely and detailed coverage of the Supreme Court’s ObamaCare decision as soon as it comes out, I recommend bookmarking SCOTUSblog.com. Here is their description of planned coverage:

We have put a special plan in place for the day that the Court decides the health care cases.  We’ll put this plan into effect on every opinion day for the last two weeks of June; if the health care decisions are not released on a particular day, we’ll revert to our ordinary operations.

To accommodate high traffic to the blog on decision days for the last two weeks of June, we will be temporarily adopting a new format. When you visit scotusblog.com, you will be directed straight to the live blog rather than our homepage.  When the Court announces the opinion in the health care cases, the live blog will remain active for several hours.  We will link to all of our initial reporting and analysis of the opinion, as well as an ongoing round-up of coverage by other news outlets, on the live blog.  That way you won’t have to refresh the page, and the blog won’t crash from the traffic we receive.

On the day of the opinion, Tom and Lyle will be present at the Court and will break the news in the live blog. Following the initial announcement, we will also be posting detailed analysis of the opinion, including analysis “In Plain English,” as well posting as key excerpts from the opinion itself. The blog will also be hosting a webinar with Kaiser Health News at four o’clock on the afternoon of the opinion announcement (more information will be available soon) and an immediate online symposium, which will continue for several days after the opinion is released.  A list of the contributors is below the jump.

Confirmed contributors to our symposium on the decisions:

Jonathan Adler – Case Western Law School

Robert Alt – Heritage Foundation

Randy Barnett – Georgetown Law Center

David Bernstein – George Mason School of Law

Erwin Chemerinsky – University of California, Irvine School of Law

Richard Epstein – New York University Law School

David Kopel – Independence Institute

Gillian Metzger – Columbia Law School

Alan Morrison – George Washington Law School

Clark Neily – Institute for Justice

Ilya Shapiro – Cato Institute

Ilya Somin – George Mason School of Law

Laurence Tribe – Harvard Law School

Adam Winkler – University of California, Los Angeles School of Law

Elizabeth Wydra – Constitutional Accountability Center

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Categories: Health Care, SCOTUS
16
Nov 2011

Heinrich and Udall: No fans of the First Amendment

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A little over a week ago, Galt reported that the esteemed, ahem, Senator Udall has jumped on the anti-free speech bandwagon of Democrats seeking to impose the government’s will on your political speech. Unfortunately, the cagey and politically driven Udall now has fellow New Mexican Martin Heinrich following suit:

Rep. Martin Heinrich (D-New Mexico) joined his colleague in the US Senate, Tom Udall, by offering up legislation aimed at repealing the US Supreme Court decision in the Citizens United case, calling for a Constitutional amendment and would allow Congress to regulate the campaign finance system.

On Monday (Nov. 14), Heinrich joined four other Democratic members of the US House of Representatives by introducing a companion amendment to the one Udall offered in the Senate along with Sen.Michael Bennet (D-Colorado).

More from New Mexico Watchdog.org here. If you’d like to know more about why Udall, Heinrich, and company are flat wrong on this issue and actually pose a danger to the bedrock principles of this nation through their continued nonsense, see the following pieces:

  1. Citizens United and the Battle for Free Speech in America by Steve Simpson
  2. Democracy Will Survive Citizens United by Roger Pilon
  3. 3 Reasons Not to Sweat Citizens United by Reason.tv
  4. Reason’s coverage of the decision over the last couple years.
  5. Free Speech Is Not a “Problem of Democracy” by Paul Sherman

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Categories: Campaign Finance, Constitutional Rights Tags: ,
13
Oct 2011

14th Amendment History

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Folks know by now I’m a fan of the Institute for Justice, so I had to share the latest video offering from my favorite libertarian lawyers. The folks at IJ have put together a very helpful history of the 14th Amendment to the U.S. Constitution — one that provides excellent context and demonstrates why it remains so important to us all today. It’s less than 15 minutes, so take some time to watch (click here to view in YouTube):

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Categories: Constitutional Rights, SCOTUS
06
Sep 2011

Publius Daily Digest

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National

In honor of Labor Day, Teamsters president Jimmy Hoffa demonstrated the unions’ version of the “new civility” in politics:

Hoffa riled up Fox News and the right wingMonday with a Labor Day speech in Detroit in which he called Republican members of Congress “sons of bitches” and said union workers are ready to “go to war” with the tea party next year and “take out” Republicans at the ballot box.

Hoffa claims his remarks were simply responding in kind to similar rhetoric from the GOP side.

Larry Sabato tells us today that The 2012 Election Will Come Down to Seven States:

Straw polls, real polls, debates, caucuses, primaries—that’s the public side of presidential campaigns 14 months before Election Day. But behind the scenes, strategists for President Obama and his major Republican opponents are already focused like a laser on the Electoral College.

* * *

Barring a Carter-like collapse, President Obama is assured of 175 electoral votes from 12 deep-blue states and the District of Columbia: California (55 electoral votes), Connecticut (7), Delaware (3), Hawaii (4), Illinois (20), Maryland (10), Massachusetts (11), New Jersey (14), New York (29), Rhode Island (4), Vermont (3), Washington state (12) and Washington, D.C. (3). Three more states are not quite as certain, but still likely Democratic: Maine (4), Minnesota (10) and Oregon (7). Even though Minnesota is competitive enough to vote Republican under the right set of conditions, it is the state with the longest Democratic presidential streak, dating to 1976.

Four other states usually vote Democratic for president, but they’re hardly a sure thing: Michigan (16), New Mexico (5), Pennsylvania (20) and Wisconsin (10). A low Hispanic vote in 2012 could flip New Mexico, as Al Gore carried it by only 366 votes in 2000 and a dedicated effort by George W. Bush flipped it in 2004. In Michigan, economic problems might cause voters to cool on Democrats. Wisconsin, narrowly Democratic in 2000 and 2004, is a cauldron of unpredictable countertrends. And although Pennsylvania has frustrated all GOP attempts to win it over since 1988, recent polls have shown weakness for Mr. Obama there. These 51 electoral votes will be GOP targets if conditions in the fall of 2012 approximate today’s.

Meanwhile, the Republicans have their own firewall. Almost any sentient GOP nominee will carry Alabama (9), Alaska (3), Arkansas (6), Idaho (4), Kansas (6), Kentucky (8), Louisiana (8), Mississippi (6), Montana (3), Nebraska (5), North Dakota (3), Oklahoma (7), South Carolina (9), South Dakota (3), Tennessee (11), Utah (6), West Virginia (5) and Wyoming (3). These 18 states have 105 electoral votes.

The Obama forces have bravely boasted that they can turn Arizona (11), Georgia (16) and Texas (38), mainly because of growing Latino voting power. But with the economy in the tank, electoral claims on these big three will likely go the way of John McCain’s early declaration in ’08 that California was within his grasp. Count another 65 red votes here.

Four years ago, even optimistic Democrats didn’t think they would pick up Indiana (11), North Carolina (15), or an electoral vote in Nebraska (which like Maine awards one vote per congressional district), yet all three went for Mr. Obama by small margins. In 2012, Indiana is likely to desert him, as is the one Cornhusker district. To keep North Carolina, the Democrats chose Charlotte for their national convention and will make a big play statewide. As of now, it looks tough for them. Thus Republicans are in the lead to win 26 more electors. Missouri was the sole squeaker that went for McCain; few believe it will be tight next year, so the GOP will likely have those 10 votes, too.

Republicans therefore are a lock or lead in 24 states for 206 electoral votes, and Democrats have or lead in 19 states for 247 electoral votes. That’s why seven super-swing states with 85 electors will determine which party gets to the magic number of 270 electoral votes: Colorado (9), Florida (29), Iowa (6), Nevada (6), New Hampshire (4), Ohio (18) and Virginia (13).

 

Today’s Political Diary has some Sarah Palin in 2012 speculation and analysis, first from Paul Gigot and second from Dorothy Rabinoqitz:

[O]n her Labor Day bus tour, public frustration with her will-she-or-won’t-she-be-a-candidate pose was palpable. “If she had done it right she could be popular here [in New Hampshire],” Kevin Smith, executive director of a conservative think tank, told AP. “But I don’t feel a lot of energy or enthusiasm here about a Palin run. Voters here in this state, who frankly have been taking this primary seriously since the beginning of the year, are indifferent.”

Ms. Palin may still decide to run, but if she does she will have a hard time winning even in Iowa. Her approval ratings have fallen sharply among Republicans, who doubt she can defeat President Obama. The polls show she fares worse against the president than nearly every other GOP candidate.

Ms. Palin might have been a contender. Had she finished her job as governor, devoted a year or two to learning what she didn’t know about the world and economics, built a network of support around the country, and developed a thicker skin about the media, she might now be a formidable candidate. Instead, she chose to be a media celebrity and to play hard-to-get as a candidate. The best thing she could do for her reputation at this point would be to declare once and for all that she isn’t running, and then work to support whoever is the GOP nominee.

* * *

It was show time on the campaign trail for Sarah Palin last weekend — a special sort, for the not-yet-if-ever-candidate, and it was inevitable. Here was Ms. Palin, in Indianola, Iowa, on Saturday holding forth at a tea party event in a 40-minute speech. They were there, she reminded her audience, to begin the restoration of the nation. She reminded them also that it was on this date that she had delivered her speech after being chosen as the vice presidential candidate on the McCain ticket.

The reference brought cheers, and one of the choruses of “Run Sarah run” that erupted intermittently. Still, no one remembering the infectious optimism and assurance of that acceptance address would have found much similarity between it and the tone of the not-yet-but-maybe candidate today. Saturday, as increasingly often in her public outings, the dominant note ran to embitterment. They were all there, she told the crowd, “to begin the restoration of the country we love.” They were the tea party members — people who had enlisted in the same heroic cause as had the Sons of Liberty.

Yet for their effort they had not only gone unappreciated but had been maligned. Ms. Palin’s voice took on a piercing intensity for this point in her speech. Not only Democrats but “good conservatives” had maligned tea party people like her audience — called them “terrorists and suicide bombers.” The message to her audience was clear: they were not only unsung national heroes but victimized ones.

Much was later made of Ms. Palin’s pointed observation in the speech that it wasn’t enough to defeat President Obama — the challenge was, “who and what would replace him.” This was, it took no seer to divine, a jab at the current Republican challengers and a hint that a more skillful challenger is needed — perhaps someone who had not yet entered the race. Who could that be?

But there was something more significant in this stump outing. It revealed a Sarah Palin still energetic, still capable of drawing impassioned supporters, but one also unsettled and defensive, aggrieved and struggling to extract a hard, clear message out of too many cloudy talking points. A far cry from the happy warrior who took the stage at that Republican Convention.

President Obama’s upcoming jobs speech to a joint session of Congress has garnered a lot of attention (mostly related to scheduling), and today’s WSJ discusses his Speech Impediment:

In everyday life, when you don’t have something to say, you avoid the stage. In our nation’s capital, by contrast, the world operates like the one Alice found behind the Looking Glass. That’s a world where you have to run as hard as you can just to stay still. Which helps explain why President Obama will this week be addressing a joint session of Congress that doesn’t really want to hear from him about a jobs plan that he doesn’t really have.

Expectations are high, the byproduct of a highly publicized back and forth with Republican Speaker John Boehner over the date of the president’s speech. If you’re a White House with a message, that’s a good thing. Unfortunately for President Obama, he doesn’t have one.

* * *

The truth is that there is practically nothing Mr. Obama could do to gin up better jobs numbers before next year’s election without massively increasing the deficit—and the Republicans won’t let him do that. Even with the word “stimulus” banished from his remarks this week, no one will be fooled by new calls to “invest” in roads and bridges and infrastructure. Or by the expected hodgepodge of other proposals from extending the payroll tax holiday to tax credits for new hires.

The irony is that the president has blown the one chance to do something of substance without looking weak. Back in July when he was negotiating with Speaker Boehner, the two had agreed on a grand bargain that would include real cuts in entitlements. The “give” on the Republican side was that the deal would address “revenues,” which to the president means raising taxes and to the speaker means relying on growth to bring in more money to the Treasury’s coffers.

For the president, that deal would have allowed him to do something serious about spending—in a highly public and bipartisan way. Even better for him, it might have split the opposition. For such a deal would likely have left Republicans bickering, with some arguing we should wait for a Republican president and others screaming “sellout.”

The president, however, got greedy, and killed the deal when he asked for more. That’s been his problem all along. Notwithstanding incessant calls to rise above politics, on issue after issue the president has proved himself incapable of matching his large rhetoric with equally large actions.

The Kelo v. New London case was certainly a low water mark for property rights, and continuing updates on its aftermath don’t provide any reason for comfort or silver linings. Check out Reason’s How Eminent Domain Transformed a Nice Neighborhood into a Dump for more. Speaking of Reason, there is now a Special Edition Reason Atlas Shrugged DVD available.

Senator Rand Paul recently spoke at The Cato Institute’s Cato University on a range of topics, excerpted in this video (click here to view in YouTube):

New Mexico

The special session in Santa Fe begins today:

“Redistricting, with a side of controversy.”

That’s how The Santa Fe New Mexican describes the special session of the Legislature that begins today.

Lawmakers are tasked with redrawing political boundaries for state legislative seats, the Public Regulation and Public Education commissions, and the state’s three seats in the U.S. House of Representatives based on the 2010 Census numbers. But Gov. Susana Martinez wants them to tackle several other issues as well – and there’s disagreement about whether that’s a good idea.

Heath Haussamen has the rest here.

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Categories: 2012 Election, Economy, National Politics, NM Politics, SCOTUS
25
Aug 2011

Publius Daily Digest

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National

Jeffrey Toobin has a lengthy piece up at the New Yorker asking the question Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan:

The implications of Thomas’s leadership for the Court, and for the country, are profound. Thomas is probably the most conservative Justice to serve on the Court since the nineteen-thirties. More than virtually any of his colleagues, he has a fully wrought judicial philosophy that, if realized, would transform much of American government and society. Thomas’s views both reflect and inspire the Tea Party movement, which his wife has helped lead almost since its inception. The Tea Party is a diffuse operation, and it can be difficult to pin down its stand on any given issue. Still, the Tea Party is unusual among American political movements in its commitment to a specific view of the Constitution—one that accords, with great precision, with Thomas’s own approach. For decades, various branches of the conservative movement have called for a reduction in the size of the federal government, but for the Tea Party, and for Thomas, small government is a constitutional command.

* * *

In recent weeks, two federal courts of appeals have reached opposing conclusions about the constitutionality of the 2010 health-care law; the Sixth Circuit, in Cincinnati, upheld it, while the Eleventh Circuit, in Atlanta, struck down its requirement that all Americans buy health insurance. This conflict means that the Supreme Court will almost certainly agree to review the case this fall, with a decision expected by June of next year. It is likely to be the most important case for the Justices since Bush v. Gore, and it will certainly be the clearest test yet of Thomas’s ascendancy at the Court. Thomas’s entire career as a judge has been building toward the moment when he would be able to declare that law unconstitutional. It would be not only a victory for his approach to the Constitution but also, it seems, a defeat for the enemies who have pursued him for so long: liberals, law professors, journalists—the group that Thomas refers to collectively as “the élites.” Thomas’s triumph over the health-care law and its supporters is by no means assured, but it is now tantalizingly within reach.

The full piece, though fairly long, is worth a read. Speaking of SCOTUS, a couple days ago Damon Root highlighted an upcoming case that has some interesting implications:

The New York Times’ Adam Liptak previews the upcoming Supreme Court case of Perry v. New Hampshire, which will consider the role of eyewitness testimony in the American legal system. As Liptak writes:

Every year, more than 75,000 eyewitnesses identify suspects in criminal investigations. Those identifications are wrong about a third of the time, a pile of studies suggest….

In November, the Supreme Court will return to the question of what the Constitution has to say about the use of eyewitness evidence. The last time the court took a hard look at the question was in 1977. Since then, the scientific understanding of human memory has been transformed.

Indeed, there is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.

What they collectively show is that it is perilous to base a conviction on a witness’s identification of a stranger. Memory is not a videotape. It is fragile at best, worse under stress and subject to distortion and contamination.

Read the whole story here. Read Radley Balko’s 2009 Reason report on the unreliability of eyewitness testimony here.

Over at CATO, Chris Edwards takes a closer look at Rick Perry’s Spending Record:

I awarded Mr. Perry grades of “B” in the last two Cato governor report cards. My analyses revealed a pretty good tax and spending record, but Perry certainly fell short of the reform-minded zeal shown by former “A” governor, Mark Sanford of South Carolina. Recent articles by Shikha Dalmia of Reason and Aman Batheja of the Fort Worth Star-Telegram suggest that Perry’s fiscal record is a mixed bag.

Let’s look at the numbers. Rick Perry came into office in December 2000, which was in the middle of Texas fiscal year 2001. Texas general fund spending has risen from $29 billion that first Perry year to $41 billion by fiscal 2011, which works out to an average annual increase of 3.5 percent. (Data from NASBO).

* * *

Thus, Mr. Perry has been Mr. Average on state spending. Over the past decade, per capita state general fund spending rose the same amount in Texas as the nation as a whole.

Note that total Texas state spending has risen substantially faster than just the general fund part of the Texas budget over the last decade (see Figure 16 in here). However, governors have more control over the general fund part of their budgets, so that is probably the best measure of a governors’ spending performance. (Still, Mr. Perry might want to explain to primary voters why the overall Texas budget has grown so quickly).

In yesterday’s Political Diary, Carl Kelm discussed a new poll showing a tightening of the GOP race:

A new poll out of Iowa shows the Republican contest tightening. The survey, conducted by PPP, puts newcomer Rick Perry in first place at 22%, with Mitt Romney at 19%, Michele Bachmann at 18% and Ron Paul at 16%. Given the margin of error, that amounts to a four-way tie.

In context, though, the poll is a win for Mr. Perry. The Texas governor has been mocked in the press as a George W. Bush clone with kooky views on evolution and global warming. But his message on job creation and economic growth appears to be resonating with the Republican base.

The poll is bad news for Ms. Bachmann and Mr. Romney. The Minnesota congresswoman, whose path to the nomination depends heavily on a victory in Iowa, has seen virtually no bounce from her Ames straw poll win earlier this month. To the contrary, her numbers have trended downwards. According to PPP, her favorables have gone from 53%-16% in June to 47%-35% now, leading the pollsters to conclude, “No one is sinking faster than Bachmann.” Mr. Perry’s numbers, meanwhile, have shot up to 56%-24%. And although his favorables will probably tighten up as voters get to know him better, the Texan begins his one-on-one with Ms. Bachmann in a superior position.

Mr. Romney finds himself in something of a dilemma. On one hand, Iowa has never been particularly important to his strategy, and he can absorb a loss there relatively easily. On the other hand, with Mr. Perry and Ms. Bachmann splitting the social conservatives and tea party affiliates, there’s an opportunity for Mr. Romney to cobble together a winning coalition of his own. And a win in Iowa, coupled with an expected victory in New Hampshire, could end the contest early.

Mr. Romney probably won’t go that route — his campaign has thus far shown a strong aversion to risk — but if he feels Mr. Perry is gaining too much momentum, it might make sense to opt for a three-way Iowa contest rather than face Mr. Perry one-on-one down the stretch.

George Will, one of our favorites, has some great insights in his latest column, Liberals’ Wisconsin Waterloo:

The residues of liberalism’s Wisconsin Woodstock — 1960s radicalism redux: operatic lamentations, theatrical demonstrations and electoral futilities — are words of plaintive defiance painted on sidewalks around the state capitol. “Solidarity forever” was perhaps painted by a graduate student forever at the University of Wisconsin. “Repubs steal elections” is an odd accusation from people who, seeking to overturn the 2010 elections, cheeredDemocratic lawmakers who fled to Illinois — a congenial refuge for labor-subservient Democrats — in order to paralyze the duly elected legislature. The authors of the sidewalk graffiti have at least read Jefferson: “The tree of liberty is watered by the blood of tyrants.” The tyrant is “$cott Walker American Fa$ci$t.”

Who, on a recent morning, was enjoying the view and the turn of events. From the governor’s mansion on the shore of sparkling Lake Mendota you can see on the far shore the famously liberal university, from which came many of those who protested his “budget repair” bill that already seems to have repaired many communities’ budgets, in addition to the state’s.

* * *

Progressives want to recall Walker next year. Republicans hope they try. Wisconsin seems weary of attempts to overturn elections, and surely Obama does not want his allies squandering political money and the public’s patience. Since 1960, no Democrat has been elected president without carrying Wisconsin.

Speaking of election year politics, Jonathan Adler asks a provocative question, Can the GOP be Anti-EPA and Pro-Environment:

Most of the GOP’s Presidential hopefuls have been savage in their criticism of the Environmental Protection Agency (EPA). Indeed, some have called for the agency to be dismantled.  Could this possibly be a good idea?  I’m all for criticizing the inefficiency and ineffectiveness of federal environmental regulation — I’ve certainly done my share — but the agency is not about to disappear, no matter who is elected President, nor would simply closing the agency down be a good idea.

The NYT’s latest “Room for Debate” poses the question: “What if Republicans Closed the EPA.” Here’s my contribution.

It’s worth following the “my contribution” link for more. Also on the policy front, check out Richard Epstein’s latest contribution How is Warren Buffett Like the Pope?

A successful and sustainable political order requires stable legal and economic policies that reward innovation, spur growth, and maximize the ability of rich and poor alike to enter into voluntary arrangements. Limited government, low rates of taxation, and strong property rights are the guiding principles.

Unfortunately, many spiritual and economic leaders are working overtime to push social policy in the exact opposite direction. At the top of the list are two prominent figures: Pope Benedict XVI and financier Warren Buffett.

* * *

Denouncing those who put ‘profits before people’ may stir the masses, but it is a wickedly deformed foundation for social policy. Profits, like losses, do not exist in the abstract. Corporations, as such, do not experience gains or losses. Those gains and losses are passed on to real people, like shareholders, consumers, workers, and suppliers. It is possible to imagine a world without profits. Yet the disappearance of profits means that investors will be unable to realize a return on either their capital or labor. Structure a system that puts people before profits, and both capital and labor will dry up. The scarcity of private investment capital will force the public sector to first raise and allocate capital and labor, though it has no idea how these resources should be deployed to help the people, writ large. A set of ill-conceived public investments will not provide useful goods and services for consumers (who are, after all, people), nor will it provide sustainable wages for workers (who are also people). Poor investment decisions will lead to a massive constriction in social output that harms all people equally.

The proper response to these difficulties is to treat profits as an accurate measure of the cost of capital, rewarded to those individuals and firms who supply some desirable mix of goods, services, and jobs that people, acting individually and not collectively, want for themselves. The genius of Adam Smith, whose musings on the invisible hand are too often derided, was to realize that private markets (supported, to be sure, by suitable public infrastructure) will do better than a command and control system in satisfying the individual’s wants and needs.

Reason.TV’s latest offering will make your blood boil if you have any respect for private property rights (click here to view in YouTube):

New Mexico

If you haven’t seen it yet, check out Ellis Wyatt’s post earlier this week explaining Why We Hate Lawyers. Errors of Enchantment, as always, has analysis worth checking out.

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Categories: 2012 Election, Economy, Health Care, National Politics, NM Politics, SCOTUS
03
Aug 2011

Supreme Court Round Up

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In lieu of a digest today, we invite you to check out this recent video post by the Federalist Society, a review of this past Supreme Court term (click here to view in YouTube):

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Categories: SCOTUS
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