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Posts Tagged ‘Supreme Court’
December 9th, 2014 at 1:31 pm
Gruber Gets Gored

Even though Jonathan Gruber did his best to apologize for his incredibly damaging – and seemingly accurate – remarks about how and why ObamaCare was drafted, there was no place to hide from the bipartisan rebuke he received today from the House Committee on Government Oversight and Reform.

Gruber is the now infamous MIT professor and erstwhile “architect” of Democrats’ signature health reform law that called American voters “stupid” for not understanding basic economics and the deceptive policies embedded in ObamaCare.

Gruber’s comments have incensed Republicans, but they’ve also infuriated Democrats. Of all the anger directed at Gruber today, perhaps none was more forceful than that erupting from Rep. Elijah Cummings of Maryland, the ranking Democrat on the committee.

“As far as I can tell, we are here today to beat up on Jonathan Gruber for stupid – I mean absolutely stupid – comments he made over the last few years,” Cummings said. “Let me be clear, I am extremely frustrated with Dr. Gruber’s statements” because “They were irresponsibly, incredibly disrespectful, and did not reflect reality. And they were indeed insulting.”

We’ll see if any of this theater persuades the Supreme Court. Next spring the justices consider whether a section of ObamaCare should be interpreted, as written, to deny subsidies to citizens in 37 states that use the federal health insurance exchange. It’s an interpretation that Democrats oppose, but Gruber in at least one viral video adamantly confirms.

It’s been said that a political gaffe occurs when someone says the truth in public. Regarding ObamaCare’s deceptive elements, that may be Jonathan Gruber’s greatest offense.

December 8th, 2014 at 6:22 pm
ObamaCare’s ‘Stupid Voter’ Architect to Testify at GOP Hearing

On Tuesday this week Jonathan Gruber, the MIT economist and ObamaCare architect made infamous by a series of viral videos confirming suspicions of deceptive lawmaking, will appear before the House Government Oversight and Reform Committee.

It won’t be a pleasant meeting for Gruber.

Committee chairman Darrell Issa (R-CA) has titled the hearing, “Examining ObamaCare Transparency Failures.”

The biggest issue will be whether Issa and his fellow Republicans can get Gruber to confirm his previous statement that ObamaCare only grants insurance subsidies to people in states that operate their own health exchange. That’s the central issue in the case going before the Supreme Court next spring, and if the justices accept it, much of ObamaCare could be gutted.

Liberals are already trying to get ahead of any Gruber confessions under oath that could undermine their landmark domestic policy.

In a long-read piece at Politico, a former Democratic staffer tries to minimize the impact of Gruber’s comments by first saying he wasn’t involved in the policymaking process. That’s a fair point.

But then the staffer seems to completely confirm Gruber’s main argument – that the disputed statutory language was deliberately concocted to confuse people who weren’t in on the backroom political calculations.

The Politico reporter sums up the staffer’s argument this way: “The point of having the ‘Balkanized’ approach – state health exchanges plus a federal one for states that didn’t build their own – was to appeal to centrist senators, he said, since most liberal Democrats would have been happy just to have a federal one.”

As the staffer explains it, “No one was willing to fall on their swords to make sure states ran their own exchanges.”

In other words, the text in the law that limits the flow of subsidies to state exchanges is nothing more than an Orwellian wordplay. It doesn’t mean what it says. Rather, it’s designed to give ‘centrist’ senators political cover for voting to do the exact opposite – give subsidies to everyone.

Confused? Gruber isn’t.

This new rationale sounds an awful lot like the “tortured” drafting of ObamaCare that takes advantage of the “stupidity of the American voter” that Gruber’s been saying for years.

Kudos for being honest. Now let’s see if he will remain so under oath.

December 1st, 2014 at 7:12 pm
ObamaCare Poorly Written No Matter How You Spin It

National Journal has a piece warning liberals not to dismiss the latest Supreme Court challenge to ObamaCare.

Specifically, it argues that liberals shouldn’t rely on the idea that the disputed statutory text – the part that limits federal subsidies to buy health insurance only to plans bought on an exchange “established by the State” – is simply a typo that can be brushed aside as a drafting error. Doing so would empower conservatives on the Court to say, in essence, that “they see the error, are powerless to fix it, and so must dismantle the statute.”

But here’s where the analysis goes off the rails. According to the NJ writer, the subsidies challenge should fail because “if you read the whole Affordable Care Act, taken together, the ‘established by the State’ line loses its clarity.”

In other words, when we read the relevant part of a federal statute and discover that it makes other parts of the same law undesirable – e.g. unsubsidized and thus unaffordable health insurance – the judges should ignore the plain text and substitute what they think Congress really intended.

That’s the kind of judicial activism that conservative justices like Antonin Scalia despise.

Or is it?

“…ObamaCare supporters have a pretty strong argument on the textual side because judges – even strict constructionists like Justice Antonin Scalia – have consistently said that courts should read the entire law as one unit when handling questions of statutory interpretation,” writes the author.

But that’s only true if the specific section under review is ambiguous. Zooming out to look at the entire law isn’t necessary when it’s plain to see that subsidies are clearly prohibited when States don’t operate their own exchanges. If ObamaCare is clear in the details and only loses clarity when read as a whole, that’s a problem for Congress to correct, not the Court.

No matter which way you read the subsidies provision, ObamaCare is proving itself to be a very badly written law.

November 18th, 2014 at 6:10 pm
Ahead of SCOTUS Challenge, HHS Murky on State-Based Exchange Definition

With its surprising decision to hear oral argument on an ObamaCare subsidy challenge next spring, the Supreme Court of the United States is causing a flurry of activity as some states try to shore up their status ahead of a potentially costly decision.

“The consulting firm Avalere Health estimates that nearly 5 million people would see their premiums spike 76 percent, on average, if the Supreme Court strikes down subsidies in states that don’t operate their own exchanges,” reports Governing. “That estimate assumes a greater number of exchanges are considered federal, not state-based, but the question of what exactly constitutes a ‘state-based’ health exchange is murky.”

How murky?

“States have the option of running their own exchange completely (a state-based exchange), managing aspects of plan design or consumer outreach (a partnership exchange) or leaving everything to the federal government (a federally facilitated exchange),” according to the website.

Predictably, the federal Department of Health and Human Services isn’t divulging its exact criteria for categorizing an exchange, a stance that leaves states without a clear picture of how to prepare for a possible elimination of subsidies to residents.

Some states, like Nevada and Oregon that switched to Healthcare.gov – the federal website – are still considered to have state-based exchanges because they retain control over functions like plan approval, data collection and quality reporting. Others, like Utah and Mississippi, also fall into the state-based category because they host small business exchanges (but not individual exchanges).

So, the bottom line appears to be this: If the Supreme Court axes ObamaCare subsidies per the law’s text and intent, there’s a good chance President Barack Obama’s political appointees will engage in verbal gymnastics to find ways to define “state-based exchanges” in whatever manner best suits them.

No matter. Getting something fundamentally better than ObamaCare isn’t the Supreme Court’s job anyway. Best to pocket the subsidy win if it comes and work toward a policy consensus among the political branches that delivers real reform.

November 14th, 2014 at 1:32 pm
Ponnuru: What to Do If SCOTUS Strikes Down ObamaCare Subsidies

With ObamaCare architect Jonathan Gruber’s admissions that the controversial health law was sold on a pack of lies, the probability is rising that the Supreme Court will interpret the law as written and eliminate subsidies for millions of people.

If that happens, will Republicans in Congress be ready?

In order to lay the groundwork for an ObamaCare alternative that covers as many or more people than the current law, and costs less, Republicans in Congress could unite behind a framework proposed by conservative health experts James Capretta and Yuval Levin. Similar ideas have been endorsed by Senator Orrin Hatch (R-UT), the incoming-chairman of the Senate Finance Committee, and Rep. Paul Ryan (R-WI), the likely next chairman of the House Ways and Means Committee.

If the Supreme Court does strike down the subsidies, President Barack Obama won’t have much leverage since, “Much of ObamaCare would have just self-destructed due to its own design flaws and lack of public support, and Republicans would be offering a way to advance the law’s stated goal of assuring coverage – if not in the highly prescriptive and centralized manner the White House prefers”, writes Ramesh Ponnuru. “Democrats’ favored lines of attack on Republicans over health care – that they have no alternative, that they would take people off the insurance rolls – would have been neutralized.”

Sounds like a strategy worth pursuing.

November 7th, 2014 at 5:45 pm
Supreme Court to Hear ObamaCare Subsidy Challenge

In a surprise move, the United States Supreme Court announced today it will hear a third challenge to ObamaCare in as many years.

The case, King v. Burwell, is one of many lawsuits challenging a controversial IRS decision to extend federal subsidies to any person eligible to buy insurance on an ObamaCare exchange. The legal fight is over whether the text of ObamaCare permits subsidies to be given to citizens purchasing health insurance through Healthcare.gov, the federal exchange, when the law clearly says they cannot.

Supporters of ObamaCare say the disputed statutory language amounts to typos inconsistent with the spirit and purpose of the law. Opponents insist that the plain meaning of the words be honored, or risk the rule of law taking a back seat to bureaucratic whim.

The timing of the Supreme Court’s decision means that oral arguments will be held sometime in the spring with a final decision likely next summer. If the challengers are successful, King v. Burwell may go down in history as the lawsuit that signaled the beginning of the end of ObamaCare.

August 14th, 2014 at 8:35 pm
Indiana Jumps on the Halbig Bandwagon

Add Indiana to the list of states arguing that ObamaCare’s subsidies can’t be used on Healthcare.gov, the federal exchange.

The challenge is the same mounted by other states contesting the IRS’s unilateral decision to go against the clear language of ObamaCare which makes subsidies available only on state-based exchanges, a restriction intended to induce states to shoulder the implementation costs for fear of angering residents by exposing them to ObamaCare’s real costs.

U.S. District Judge William T. Lawrence will decide whether Indiana’s case has merit in October. Precedent from other circuits isn’t all that helpful, since the D.C. Circuit upheld the statutory scheme while the Fourth Circuit sided with the IRS.

The silver lining: Whatever Lawrence and the appellate circuit decide will further fragment ObamaCare’s implementation, increasing the likelihood that the Supreme Court will weigh in.

Whenever that happens, hopefully there will still be five votes to uphold the plain meaning of the law.

H/T: Indianapolis Star

July 15th, 2014 at 11:36 am
Judiciary Could Force Obama to Work with Congress

John Fund documents the Supreme Court’s growing impatience with the Obama administration’s refusal to adhere to the letter of the law in a piece out today with National Review.

Citing Jonathan Adler, a conservative legal expert, Fund highlights several recent Supreme Court decisions that slap down the executive branch’s significant regulatory overreach. Justices on both sides of the ideological spectrum – from the liberal Kagan to the conservative Scalia – refuse to grant President Barack Obama and his bureaucratic lieutenants the authority to change statutory requirements on a whim to suit policy goals the underlying law does not allow.

This backdrop is important as the D.C. Circuit Court of Appeals prepares to hand down its decision in Halbig v. Burwell, a case that challenges an IRS interpretation of ObamaCare that, if overturned, could prohibit the subsidies most Americans need to pay for the law’s expensive insurance plans.

Weighing in the challengers’ favor are the 13 unanimous Supreme Court decisions that have invalidated moves by Obama executive agencies since he took office. In its reasoning the Court has consistently said that the president must adhere to the constitutional framework for making laws, which limits the executive to faithfully executing (i.e. carrying out) what Congress has actually passed as legislation.

In the ObamaCare context, that means striking down the IRS rule that explicitly ignores the prohibition on giving federal subsidies to users of the federal health insurance portal.

Making them available only on state exchanges was an enticement to get states to foot the bill for implementation. It has since backfired with 34 states declining the deal.

Does that complicate the Obama administration’s ability to call federal ObamaCare plans affordable? You betcha. But it also preserves the constitutional check on a president prone to act beyond his designated powers.

Though it might be unpleasant for the White House and its allies, the world will not end if Barack Obama is forced to negotiate with Congress. Another judicial reminder to respect the structure of the Constitution would be a public service by the D.C. Circuit – and the Supreme Court.

July 1st, 2014 at 4:23 pm
Yesterday’s OTHER Supreme Court Ruling
Posted by Troy Senik Print

Lost in all of the media hyperventilation about the Supreme Court’s Hobby Lobby decision yesterday (where the left is truly embarrassing itself over an extremely narrowly tailored decision) is the equally good news that came out of the case of Harris v. Quinn, which challenged Illinois’ requirement that home care workers had to contribute dues to the SEIU even if they didn’t want to join (an arrangement that was set up through a back room deal with now-imprisoned former Governor Rod Blagojevich). From The Hill:

The Supreme Court on Monday chipped away at the power of organized labor by ruling that some state workers cannot be forced to pay union fees.

In a 5-4 decision, the justices struck down a requirement that home care workers in Illinois contribute to a branch of the Service Employees International Union (SEIU), even if they choose not to join.

“A state may not force every person who benefits from this [union's] efforts to make payments to the [union],” Justice Samuel Alito wrote in the majority’s decision.

It’s always the same story with big labor: their supposed benevolence relies on coercion. If people don’t want to join the union, by what right should they still be forced to pay them? And if the unions think the lack of dues leaves them vulnerable to free riding, then why not limit the terms of collective bargaining only to those workers who are actual members? The answer, of course, is that labor negotiates deals far better than they could receive in a competitive market, leading them to attempt to lock out anyone who might be willing to work for a lesser rate.

Expect to see the same outcome in Illinois that you did in Wisconsin when workers there got out from the unions’ thumbs: dues payers rushing for the exits. If big labor wants a viable future, they’ll have to start standing on their own two feet. The days when they can live off of others are quickly coming to a close.

January 13th, 2014 at 5:53 pm
Supreme Court Hears Arguments in Constitutionally Suspect Recess Appointments Case

Two years ago President Barack Obama decided to appoint three new members to the National Labor Relations Board, even though none of them could clear the U.S. Senate.

Blocked from getting what he wanted, President Obama installed the nominees anyway, arguing that the Senate was on recess; a move allowed under the U.S. Constitution’s Recess Appointments Clause.

There was just one little problem. The Senate had not recessed.

Republicans in the chamber anticipated Obama’s move and negotiated an agreement with majority Democrats to keep the Senate open every three days during the Christmas and New Year’s break in order to conduct business. Thus, as far as the Senate’s own records are concerned, the body never went on recess. By refusing to give its consent, the chamber, in effect, told Obama to nominate three new people.

He declined.

The fight now is before the Supreme Court, which today heard oral arguments from the Obama administration and counsel representing 45 members of the Senate Republican caucus, among others.

While there are a host of arcane and at times interesting constitutional questions to consider this particular case boils down to whether the Court thinks the President or the Senate has the final say as to when the Senate is in session.

The answer should seem obvious, but don’t underestimate the Court’s ability to choose wrongly.

Victory for President Obama in this suit would be a body blow to the Constitution. The Senate’s ‘advise and consent’ role is designed to ensure that only those qualified for high governmental service actually serve in such posts. Yes, the confirmation process is political, but that’s the name of the game when one is a political appointee. Sometimes you lose.

Once again, we have an instance where President Obama, unwilling to compromise, is trying to impose his will by fiat, constitutional processes be damned.

The Court’s ruling is expected in late June. For the good of the republic, it should find a way to rein in an out-of-control executive.

December 27th, 2013 at 2:56 pm
NSA Program Upheld in NY After Losing in DC

Earlier today a federal judge in New York ruled that the National Security Agency’s warrantless phone record collections are constitutional.

Because the decision conflicts with a previous ruling from the District of Columbia, today’s ruling makes it much more likely that the United States Supreme Court will eventually weigh in.

As always, the outcome will depend heavily on which frame the Court adopts.

In the D.C. case, Judge Richard Leon emphasized the extent to which the NSA’s program violated fundamental norms of privacy, and pronounced it unconstitutional. “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on every single citizen for purposes of querying it and analyzing it without judicial approval,” wrote Leon.

However in New York, Judge William Pauley took a more sympathetic view of the government’s argument. To him the program “significantly increases the NSA’s capability to detect the faintest patterns left behind by individuals affiliated with foreign terrorist organizations. Armed with all the metadata, NSA can draw connections it might otherwise never be able to find.”

Though my inclination is to side with Judge Leon’s disapproval, I’m withholding judgment while Congress deliberates. As Judge Pauley correctly notes, “The question for this court is whether the government’s bulk telephony metadata program is lawful. This court finds that it is. But the question of whether that program should be conducted is for the other two coordinate branches of government to decide.”

It’s a debate we can’t afford to take lightly.

December 16th, 2013 at 7:03 pm
Judge Casts Legal Doubt on NSA Spying

A federal judge granted a preliminary injunction against the National Security Agency (NSA) today, reports Politico.

The 68-page ruling sets up the possibility that some or all of the NSA’s warrantless surveillance practices could be banned as violations of the Fourth Amendment’s protections against unlawful searches and seizures.

Due to U.S. District Judge Richard Leon’s tone, it sounds like he’s leaning toward striking the program down.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” Leon wrote.

Since Leon seems likely to convert his preliminary order into a permanent injunction, expect to see this case – and perhaps others – arrive on the Supreme Court’s docket soon. Along the way there will be no shortage of arguments about arcane legal precedents and policy disputes over national security.

All of these are important considerations, but – in my view – the most appropriate place for their deliberation is Congress, not the courts. Maybe what NSA is doing can be justified under the Constitution as a legitimate national security measure. Maybe not. Either way, ultimately it should be decided by the branch most responsive – and responsible – to the People.

December 2nd, 2013 at 6:11 pm
Supreme Court Could Defund Obamacare

Federal subsidies are the lynchpin holding Obamacare together. Without them, insurance plans bought on state-run exchanges would be too expensive for most people to buy.

Which means there’s a huge gaping problem if you live in one of the 36 states that chose to let the feds run the exchange: You don’t qualify for federal subsidies.

“Congress was exceedingly clear that tax credits and subsidies are available to people whose plans ‘were enrolled in through an exchange established by the State under section 1311 of the Patient Protection and Affordable Care Act,’” argues Scott Pruitt, Oklahoma’s Attorney General, in the Wall Street Journal.

“Congress specified that credits and subsidies are only to be available in states that set up their own health-insurance exchange for a reason: It could not force states to set up exchanges. Instead, it had to entice them to do so.”

But if the enticement fails, then citizens are exposed to the full brunt of Obamacare’s increased cost structure for health insurance. That’s the risk the health law’s drafters took. Now the plain meaning of the text should result in a massively unpopular program.

The Obama administration is spooked. If the vast majority of Americans are forced to choose between paying the real price of Obamacare-related insurance or a hefty fine, there will be an electoral tsunami in 2014.

Here’s hoping Oklahoma’s lawsuit gets a favorable ruling from the Supreme Court sooner rather than later.

November 26th, 2013 at 4:44 pm
The Walls Close in on Civil Society
Posted by Troy Senik Print

A few weeks ago, I wrote a column here entitled “America’s Fascist Moment.” I generally try to avoid such loaded terms in print, but the reason I used that other F-word was precisely because we’ve allowed its common connotation to obscure its actual meaning.

People usually associate ‘fascism ‘with the worst kinds of authoritarians, especially Adolf Hitler. And, true enough, Hitler was an extreme example of a fascist at work. Generally, however, fascism is a bit more subtle than that (really, though, what isn’t more subtle than the Third Reich?).

What the term actually means is erasing the lines between the state and civil society; ensuring that everything we do is tied to the government. In the famous formulation of Benito Mussolini, it’s “All within the state, nothing outside the state, nothing against the state.” Needless to say, that’s about as far away as you can get from the traditional American notion of limited government, where the state is only valuable insofar as it serves the people, not the other way around (for the single best volume on this, I recommend Jonah Goldberg’s truly fantastic Liberal Fascism).

When history renders its ultimate judgment on the Obama Administration, any fair reading will note the deep fascist tendencies that pervade this Administration. If you need any proof, you need only look at the headlines of the past few days.

First, you’ve got the President exhorting his disciples to use Thanksgiving dinner to harangue family members about Obamacare, even going so far as to provide pages worth of printable talking points to his minions (I recently took this up at Ricochet).

Then you’ve got the Administration’s continued efforts to force employers to violate their consciences and provide birth control for their employees even if it violates the teachings of their faith, a fight that it was announced today will head to the Supreme Court in the spring.

Finally, there’s the news that Obama’s Treasury Department is proposing cracking down on tax-exempt status for non-profit groups that engage in what the Administration believes to be too much political activity. Liberals and conservatives alike should understand the grave danger that would come with giving the Executive Branch that kind of power to regulate political activity. There’s no such thing as a free polity where those in power get to punish those who aren’t simply for voicing their opinions.

Having a free society, however, doesn’t seem to be a priority for the Obama Administration. This is an Administration that would rather beat its enemies while violating the noblest traditions of American government than lose because they stood on principle. You’d be hard-pressed to think of another White House that ever threatened liberty so directly and so consistently.

November 1st, 2013 at 4:51 pm
More Legal Woes for Obamacare

Though Obamacare’s individual mandate barely survived the Supreme Court last year, there’s no guarantee that some of the law’s other elements will be so lucky.

Last week, Tim explained that litigation challenging the health law’s federal subsidy structure is proceeding toward the Court. If the Court’s four consistent conservatives and swinger Anthony Kennedy stay true to the text, citizens in 34 states won’t be eligible for subsidies that make Obamacare-approved insurance plans (somewhat) more affordable.

Another series of cases challenge the controversial ‘HHS mandate’ that requires all non-houses of worship to provide employees with access to contraceptives and abortion-related services; despite the objecting employer’s religious beliefs. Appellate level decisions are split between the government and private business, meaning the Court is very likely to decide the issue as a way to provide continuity throughout the nation.

If recent trends hold, the Supreme Court will hear oral arguments in both lines of litigation sometime next spring, releasing a high-profile opinion in mid-summer.

As long as Obamacare is the law of the land, there will be no end to the headaches it creates.

October 29th, 2013 at 4:51 pm
Obamacare Subsidies Could be Illegal

If you think Obamacare-approved insurance is expensive now, imagine how high it could go if the Supreme Court rules federal subsidies illegal.

Currently, there are four lawsuits making their way through the federal judiciary. I’ve profiled one from Oklahoma previously, and its arguments are essentially the same as the others.

In a nutshell, the text of Obamacare makes federal subsidies available to people buying health insurance on state-run exchanges created under Section 1311 of the law. The law says nothing about subsidies being available for insurance bought through federally-run exchanges created under Section 1321.

The Internal Revenue Service tried to paper-over the problem by issuing a regulation that made subsidies available on both sets of exchanges, but that’s being vigorously challenged as an illegal affront to the plain meaning of the Obamacare statute.

As Sean Trende notes, this challenge to Obamacare, if successful, wouldn’t kill the law outright. That might make voting against the IRS’s power grab more palatable for Chief Justice John Roberts, who cast the crucial fifth vote to uphold the individual mandate last year.

Of course, if the subsidies aren’t available to people in the 34 states where HHS is operating an exchange, then the system will implode. Even with subsidies many people are struggling to pay for the higher costs. Take them away and a huge political backlash will be unleashed.

If any of these cases gets to the Supremes, let’s hope they stick to the law and leave the politics for Election Day.

July 25th, 2013 at 5:02 pm
Holder Can’t Wait to Revive Stricken Piece of Voting Rights Act

Less than a month after the Supreme Court lifted an outdated “preclearance” formula off the backs of states like Texas, Eric Holder’s Justice Department is trying to reinstate the restrictions by inviting judicial activism.

The move comes in response to the Supreme Court’s invalidation of a coverage formula in Section 5 of the Voting Rights Act. Previously, states with a history of racial discrimination had to seek Justice Department approval – preclearance – before enacting any changes to their election laws. The problem for states like Texas is that the formula for deciding which jurisdictions are required to submit to preclearance hasn’t been updated in decades, making it virtually impossible to get out from under the federal government’s thumb.

In striking down Section 5’s coverage formula, the Court said that Congress is free to create a new formula based on current data. But with the legislative branch divided, few think any action is imminent.

And so, in keeping with the Obama administration’s motto “We Can’t Wait,” Attorney General Holder announced today that his department won’t wait for Congress to update the law. Instead, lawyers at Justice are filing lawsuits against Texas and other jurisdictions seeking to reinstate preclearance on a case-by-case basis.

The cost to taxpayers will be huge, since both sides of the “v.” are government employees. Each federal judge hearing a case will act as a mini-Congress by making factual findings before crafting a rule of law to determine the outcome. Of course, these decisions will be litigated up the lengthy federal appellate chain; all the way to the Supreme Court, if possible.

What makes this an affront to the constitutional design of separation-of-powers is the deliberate intent of one arm of the executive branch to invite members of the judiciary to make laws that Congress will not pass.

Granted, for well-connected attorneys like Holder it’s cheaper to litigate the Left’s pet projects on the taxpayer’s dime rather than as a private lawyer working pro bono. But as Texas Republican Governor Rick Perry said in response, Holder’s actions really amount to “utter contempt for our country’s system of checks and balances.”

July 11th, 2013 at 1:00 pm
The Supreme Court’s Real Prop. 8 Legacy

As usual, Troy puts his finger on the essential issue in an otherwise complicated matter. Writing with John Yoo for City Journal recently our Senior Fellow explains how the Supreme Court’s ruling in California’s Prop. 8 case – that the official proponents of the traditional marriage law have no standing to defend it when state officials refuse – will have a chilling effect on direct democracy, and with it, dash any hope of checking radical leftwing politicians.

“Regardless of how one feels about gay marriage as a policy matter, the Court’s ruling creates a chilling legal precedent for the future of direct democracy—that is, passing laws by popular vote. The opinion dictates that any law that an electorate passes can be invalidated if it is challenged in court and the state’s constitutional officers refuse to defend it. This amounts to an executive-branch veto for laws approved by an electoral majority. Direct democracy is far from perfect; it often oversimplifies issues and insulates voters from the consequences of their policy choices. At its best, however, it allows popular majorities to tighten the reins on out-of-touch politicians. The Prop. 8 ruling loosens those reins.

“All conscientious Californians should be disturbed by the sweeping implications of the Prop. 8 ruling, but it augurs especially poorly for the state’s shrinking cadre of conservatives. With every statewide elected office and both houses of the state legislature controlled by Democrats, only the initiative process gives California conservatives a real chance to have their voices heard. As a result of the Court’s ruling, California liberals now have a mechanism by which to frustrate this last meaningful check on their dominance. The state’s future will only grow dimmer, and the Supreme Court will deserve the blame.”

The entire article can be read here.

May 28th, 2013 at 6:00 pm
Senate Republicans Petition Supreme Court to Smack Down Obama’s NLRB Appointments

It looks like there could be a Supreme Court showdown over whether President Barack Obama violated the Constitution when he appointed members to the National Labor Relations Board back in January.

All 45 Senate Republicans have filed a friend of the court brief asking the justices to uphold the D.C. and Second Court’s rulings that the president did just that. The Obama administration, of course, disagrees and wants to high court to reverse.

The constitutional question to be answered is whether the Senate or the President gets to decide when the former is in recess, and thus when the President can make recess appointments to bypass the Constitution’s advice and consent requirement.

Important? You betcha.

As the NLRB case shows, if the President gets to decide when the Senate is in recess then the advice and consent requirement becomes effectively a voluntary procedural hoop that the President can choose to ignore whenever a nominee can’t get the necessary votes for confirmation. Such a development would effectively nullify the Senate’s only real quality control measure in staffing the executive branch.

There’s also an added bonus. If the Court accepts the case, it will be one of the few decisions that deal with actual constitutional text, instead of the “penumbras” and other implied meanings that the justices have imported over the years.

Then again, that may be why this case gets snubbed.

H/T: Politico

January 25th, 2013 at 2:05 pm
More Fights to Come, Between Obama and Courts

Tim is right that today’s DC Circuit Court ruling on the NLRB appointments is “a humiliating rebuke for [Barack] Obama.” It also reads well, with solid textual analysis supporting its interpretation of the “Recess Clause.” That said, its holdings are so sweeping — both as to what constitutes “the Recess” of the Senate and as to what it means that a vacancy can be filled by such appointment (only) if it “happen[s]” during the Recess — that while they certainly make sense in law and logic, they may go so far as to violate enough existing practice as to make the full circuit en banc or the Supreme Court to reject the full scope of the ruling. Being a realist, I can certainly see a final result that narrows the scope of this ruling (and of it definition of “Recess” and “happen”), but that still throws out Obama’s appointments and still upholds the main thrust of today’s ruling, which is that there are serious limits to the “Recess appointment” power.

But allow just a little further prediction. When the high court so rules, and Obama’s “humiliation” is confirmed, The One in the Oval Office will have a conniption fit. As it so happens, such a high court ruling will probably be just one in a series of about five or six key decisions in the next 18-24 months that will go directly against Obama administration arguments, actions, and abuses. Look, therefore, for Obama to resurrect his constitutionally dangerous, full-frontal assault against the Supreme Court and the courts in general, trying to undermine their very legitimacy. In fact, so unhinged may be Obama’s power lust that he might even try to openly defy an explicit Supreme Court ruling, maybe even citing Andrew Jackson’s infamous (perhaps apocryphal) statement from Worcester v. Georgia that the chief justice “has made his decision; now let him enforce it.”

In short, I see in this and other developing cases the potential for serious constitutional crisis, brought on by Obama’s authoritarian impulses. I hope I’m wrong.