Freedom Line Blog

Uncharacteristically, a three judge panel on the Ninth Circuit Court of Appeals has given constitutional conservatives a reason to smile.

The Ninth Circuit, a bastion of liberalism that gets routinely reversed by the Supreme Court, ruled that a constitutional challenge to the Independent Payment Advisory Board (IPAB) is not yet “ripe” for judicial review. Ripeness is the term judges use to denote when a case has a live issue that a court of law can decide. In the IPAB case, the agency hasn’t yet been created, so any challenges to the harm it might do must wait until they actually occur.

And make no mistake, there is much to fear from a fully functioning IPAB. For example, “IPAB is not dependent upon annual appropriations from Congress, need not follow traditional administrative processes, and is not subject to judicial review. As if that were not enough,” writes Jonathan Adler, “[ObamaCare] provides that Congress may dissolve IPAB only if it follows a specified procedure during a seven-month period in 2017 – a statutory provision even the Obama administration has acknowledged could not hold up in court.”

Each of the characteristics of IPAB cited by Adler above are intentionally designed to separate the agency from legislative, judicial and ultimately public control. This is dangerous because “IPAB is authorized to develop self-executing recommendations for limits on Medicare reimbursement rates and other cost controls should the rate of Medicare spending growth exceed a specified target.” That is, IPAB is empowered to ration care for Medicare beneficiaries without any oversight. If allowed to go into effect, IPAB could very well be the biggest step toward a European-style, centrally controlled nationalized health system.

So, how is a loss today really a win for the future? By dismissing the current challenge to IPAB for lack of ripeness, the Ninth Circuit panel is allowing those opposed to the agency to fight another day. At the trial level where this case began, the district judge was not so kind. He ruled against the challengers on the merits, foreclosing future attacks when IPAB actually gets going.

By allowing the challengers to refile later, the Ninth Circuit – at least for the time being – is leaving the door open to another, perhaps more successful assertion of constitutional principle.

And it comes from the most unlikely of places, the Ninth Circuit Court of Appeals. Just over the AP wires from San Francisco:

A divided federal appeals court on Thursday struck down California’s concealed weapons rules, saying they violate the Second Amendment right to bear arms.

By a 2-1 vote, the three-judge panel of the 9th U.S. Circuit Court of Appeals said California was wrong to require applicants to show good cause to receive a permit to carry a concealed weapon.

“The right to bear arms includes the right to carry an operable firearm outside the home for the lawful purpose of self-defense,” Judge Diarmuid O’Scannlain wrote for the majority.

Judge Sidney Thomas dissented, writing that the good cause requirement limited the number of people carrying concealed handguns in public to those legitimately in need.

This represents a massive shift in California, long home to some of the nation’s most restrictive gun control laws.

The Ninth Circuit’s ruling conflicts with those from three other federal appellate courts, which means this issue could eventually make its way to the Supreme Court . For today, anyway, Second Amendment rights are stronger in the Golden State than they have been at any time in recent memory.

I have a long blog post at The American Spectator about why conservative are rallying around Obama’s nominee to the Ninth Circuit Court of Appeals, a guy named Andrew Hurwitz. This is important. Please read.

And I don’t know if I like it.  Usually, the younger, more effete version of John McCain likes to flash his maverick status all over controversial domestic policies by siding with Democrats on cap-and-trade, immigration reform, and civilian trials for (some) terrorists.  Today, though, he reminds America that, yes, he is still a Republican.

In a blinding moment of clarity, the other Senator from South Carolina concisely – and correctly – identified the proper route for Ninth Circuit judicial nominee Goodwin Liu.

“I’m in the camp that you can be an active Democrat … and still sit on the bench,” Graham said. “But this guy’s a bridge too far for me. He should take those views and run for office.”

This from a Republican who voted for Supreme Court Associate Justice Sonia Sotomayor!  To be fair, perhaps if Sotomayor where on record as identifying constitutional rights to “education, shelter, subsistence, health and the like, or to the money these things cost,” or imposing perpetual racial quotas, maybe Graham would have voted no on her too.

Graham’s criticism is a perfectly stated counterargument for the Leftist lawyers and judges who think the courts are where laws are made.  They’re not.  Reading the Constitution, Article I, clears that up.  If Professor Liu really wants to “change” America through law, he should saddle up and challenge Senator Diana Feinstein when she’s up for reelection.  Otherwise, stick to writing academic thought pieces at Berkeley.

Kudos, Senator Graham; who knew you had it in you?