Freedom Line Blog

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.

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.

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.

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.

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.

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.”

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.

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

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.

Last week I blogged here about the decent prospects for several remaining court challenges to ObamaCare. One of those cases I mentioned was that of Liberty University. Today, the Supreme Court sent the case back to the Fourth Circuit to be reconsidered — which, as ScotusBlog explains, is a step forward for the case, by keeping it very much alive.

Summary paragraph:

The Supreme Court on Monday arranged for a Virginia university to go forward with new challenges to two key sections of the new federal health care law — the individual and employer mandates to have insurance coverage.  The Court did so by returning the case of Liberty University v. Geithner (docket 11-438) to the Fourth Circuit Court to consider those challenges.  The Court last Term had simply denied review of Liberty University’s appeal, but on Monday wiped out that order and agreed to send the case back to the appeals court in Richmond for further review.

This is very good news to those of us who believe in liberty — and, of course, for Liberty, too.

When one tries too hard to be popular, the result is usually less popularity.  That appears no less true when it comes to the Supreme Court.

Last week, we highlighted how public approval of the Supreme Court instantly plummeted following last month’s ObamaCare decision.  One week prior to the Court’s decision, twice as many people – 36% to 17% – believed that the Court was doing a “good” or “excellent” job as opposed to a “poor” job.  In the immediate aftermath of that decision, almost as many said that the Court was doing a “poor” job as a “good” or “excellent” job.  Additionally, over twice as many Americans – 56% to 27% – now believe that the justices pursue political agendas as opposed to maintaining impartiality.

As reported by The Hill, a poll this week confirms that backlash:

Negative opinions of the Supreme Court jumped in the wake of its ruling on the constitutionality of the 2010 health care law, according to a new Pew Research Center poll released on Thursday that shows the percentage who have an unfavorable opinion of the Court is higher than at any point since Pew began tracking it in 1985.”

And that’s not just among Republicans.  According to the poll, disapproval among independents increased while approval remained unchanged.  That’s not good news for Barack Obama, and it certainly doesn’t reflect well on Chief Justice John Roberts’s apparent attempt to sacrifice judicial prudence at the altar of popularity.

As the pessimist-in-residency at CFIF, I have to unhappily report that I find it virtually impossible to muster an interpretation of the Supreme Court’s ObamaCare decision as optimistic as the one that Tim notes below from George Will.

My thoughts track most closely with those of my friend and podcast partner John Yoo (you can hear me lead John and Richard Epstein in a discussion of the ObamaCare decision here). Here’s John, writing over the weekend in the Wall Street Journal:

Conservatives are scrambling to salvage something from the decision of their once-great judicial hero [Chief Justice Roberts]. Some hope [The ObamaCare ruling] covertly represents a “substantial victory,” in the words of conservative columnist George Will.

After all, the reasoning goes, Justice Roberts’s opinion declared that the Constitution’s Commerce Clause does not authorize Congress to regulate inactivity, which would have given the federal government a blank check to regulate any and all private conduct. The court also decided that Congress unconstitutionally coerced the states by threatening to cut off all Medicaid funds if they did not expand this program as far as President Obama wants.

All this is a hollow hope. The outer limit on the Commerce Clause in Sebelius does not put any other federal law in jeopardy and is undermined by its ruling on the tax power … The limits on congressional coercion in the case of Medicaid may apply only because the amount of federal funds at risk in that program’s expansion—more than 20% of most state budgets—was so great. If Congress threatens to cut off 5%-10% to force states to obey future federal mandates, will the court strike that down too? Doubtful.

Worse still, Justice Roberts’s opinion provides a constitutional road map for architects of the next great expansion of the welfare state. Congress may not be able to directly force us to buy electric cars, eat organic kale, or replace oil heaters with solar panels. But if it enforces the mandates with a financial penalty then suddenly, thanks to Justice Roberts’s tortured reasoning in Sebelius, the mandate is transformed into a constitutional exercise of Congress’s power to tax.

John, I fear, is right. Finding conservative principles in the constitution has zero cash value when they don’t effect the ultimate outcome (though they admittedly did, in limited fashion, with the Medicaid expansion). As for banking on them paying dividends in the future? That depends on the deference that future incarnations of the Court are willing to give to the Roberts decision. And that’s a reed too thin to bear the weight that conservatives are attempting to load upon it.

On the heels of Homer’s nod to Quin below, George Will chimes in on yesterday’s Supreme Court ObamaCare decision with a nod to my broader point.  Namely, that the Court’s commerce clause ruling constitutes a significant new precedent in constitutional jurisprudence.  Entitled “Conservatives’ Long-Term Victory,” Will laments that ObamaCare’s individual mandate managed to survive, but asserts that conservatives won a “substantial victory”:

By persuading the court to reject a Commerce Clause rationale for a president’s signature act, the conservative legal insurgency against Obamacare has won a huge victory for the long haul.  This victory will help revive a venerable tradition of America’s political culture, that of viewing congressional actions with a skeptical constitutional squint, searching for congruence with the Constitution’s architecture of enumerated powers.  By rejecting the Commerce Clause rationale, Thursday’s decision reaffirmed the Constitution’s foundational premise:  Enumerated powers are necessarily limited because, as Chief Justice John Marshall said, ‘the enumeration presupposes something not enumerated.'”

Ultimately, Will notes, ObamaCare’s fate “rests on public opinion.”  Nevertheless, we are in agreement that yesterday’s lasting achievements should not be overlooked or minimized by understandably disappointed conservatives and libertarians.

I discuss this bizarre decision here.

I further note that I was almost right in my final prediction, below.

Especially: “ I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional.”

Indeed, the MANDATE was found unconstitutional, but the penalty it carried, treated as a tax, was not. And on the Medicaid issue, there were indeed shifting pluralities rather than a single majority. So I was right on the style of the opinion — although not on the substance of just how the court would find a way to muck it up beyond ordinary understanding.

In a disappointing decision, the U.S. Supreme Court has upheld ObamaCare’s individual mandate forcing all Americans to buy health insurance as constitutional.  Chief Justice John Roberts joined the four liberal justices on the Court to rule that the mandate stands under Congress’ taxing authority.

Okay, it’s time for me to weigh in, now that everybody else has so thoughtfully risen to my challenge to put their predictive skills on the line. I see we run the gamut from total victory against the whole law to a doleful prediction that the mandate will stand.

Well, count me in the mushy middle. After going back and forth and around and around on this subject for months, I just can’t tell where my own analysis — and my own wish for a defeat of ObamaCare — ends and my assessment of each of the justices’ proclivities begins.

But here’s what I have come up with: I think this is going to be one of those horribly fractured decisions where observers have trouble making heads or tails of everything. I think there may even be concurrent pluralities rather than a simple majority on at least a couple of the questions presented to the court. In the end, though, I do — yes, I do — expect the mandate in this particular form, applied in this particular way, to be adjudged at least partially unconstitutional. In other words, the court will leave open the possibility that such a mandate in theory could be within the federal government’s powers, but just not THIS mandate in this form. But I think a majority may not agree on what the remedy for this abuse is, and will come up with some Rube Goldberg way of punting the ultimate decision back to lower courts or to Congress.

Meanwhile, the challenge to the Medicaid provision will fail, 6-3.

If I am right, perhaps we should be thankful for even tiny victories. But I say: “Ugh!”

I’ll join the scrum on this one, though in a much less organized fashion than either Ashton or Quin. Insulated as it is from direct political pressure, the Supreme Court’s actions are always much harder to predict than those of the other two branches, so I’ll offer a few thoughts rather than predictions:

• The now widely-held belief that Chief Justice Roberts is writing the majority opinion makes me nervous. The positive interpretation is that some or all of Obamacare is going to be struck down and that Roberts — ever-mindful of public perception of the Court’s legitimacy — is writing it to ensure the widest possible acceptance of the ruling. On the other hand, if Justice Kennedy drifted over to the left on this decision, this could be a 6-3 ruling upholding Obamacare, with Roberts switching only so he could write the opinion and blunt the damage done by the majority.

• If the individual mandate is struck down but found to be severable from the broader law, the health insurance market is going to be thrown into absolute chaos. There’s a reason that insurers themselves were lobbying so hard for the mandate — it’s the only thing that backfills the tremendous costs being imposed on them by the rest of the legislation. The combination of an explosion in costs with likely attempts by HHS to enact price controls will put American health care in a death spiral — itself a good reason to find the provision severable.

• I’m of the opinion that, as a political calculation, having only the mandate struck down is the worst possible outcome for Republicans. If the entire law is upheld, then the GOP and the Romney camp get to run the fall campaign on the message that only electing a Republican president and Republican majorities capacious enough to achieve repeal will be sufficient to get rid of Obamacare. If the entire thing is struck down, then the work is done. But the mandate is the most unpopular portion of the law and if the Court strikes it down while leaving all of the popular components (read: the benefits — like prohibiting insurance denials based on pre-existing condtions or guaranteeing eligibility to be on your parents’ health insurance until the age of 26), it’s entirely possible — and perhaps likely — that the public opposition will be defanged while many of the most pernicious effects of the law remain.

• One final thought: Regardless of whether he’s part of the majority opinion or the dissent, I sincerely hope that Justice Thomas uses this historic opportunity to write a separate opinion on Commerce Clause jurisprudence that can be called on by his proteges in years to come.

Tom Goldstein, who has argued 25 cases before the U.S. Supreme Court, bucks conventional wisdom with his latest prediction regarding the High Court’s ObamaCare ruling tomorrow. 

Over at SCOTUSblog, a site he co-founded, Goldstein writes:

[I]n the end, based on the entire mix of information I have, I think the mandate will not be struck down tomorrow.  (Neither I, nor anyone else, has any inside information.)  My prediction includes the possibility that there will not be a single majority opinion for the theory on which the mandate is upheld, and even the thin possibility that the Court will not have a majority to find the mandate constitutional.

As to the other major ObamaCare questions before the Court, Goldstein predicts:

Far less important, I expect the principal opinion will be written by the Chief Justice; a majority of the Court will find it has jurisdiction; and the challenge to the Medicaid expansion will be rejected.

Goldstein does acknowledge that most Supreme Court observers disagree with his prediction and that his own confidence in it “isn’t overwhelming.”  Coming from such a well-respected and brilliant legal mind, Goldstein’s prediction isn’t reassuring either. 

Here’s to hoping that Goldstein is misreading this one.

C’mon, my Fellows: Weigh in! Which way will the high court go tomorrow?

The always astute Ed Whelan weighs in here.

Specifically, the fact that Justice Scalia read his dissent from the bench in the Arizona immigration case leads me to believe that the Court will invalidate the individual mandate by a 5-4 vote……

Okay, to all my fellow…er, my fellow Fellows of CFIF: Last chance to get in your updated predictions on how the Supreme Court will rule on ObamaCare.

I’ll see what you come up with before I reveal my hand (gee, isn’t that clever of me?) — but I WILL offer this outside-the-box scenario as a remote but not entirely-out-of-the-question possibility. To wit:

We could see a typical Kennedy “split the baby” sort of decision: the mandate unconstitutional, on narrow and tentative grounds, with a remand to lower courts to decipher some Delphic question from Kennedy about how best to separate the mandate from the rest of the law.

The good news — and this would be a stunner — is that I think there is a small chance that if Kennedy doesn’t just split the baby, but slices into about four pieces, then Justice Sotomayor might concur in part that “as applied,” the mandate is unconstitutional. If so, that would mean that while the end result could be quite a muddle and the size of the victory (in law, not politics) would be very small, the POLITICAL upshot would be huge in that even a small acknowledgement by an Obama appointee that the mandate went too far would take away some of the ability for Obama to bash the court as a campaign issue.

Granted, most people now think that Roberts, not Kennedy, will write the main decision, based on who has written what other decisions when, during this term. But it would be perfectly feasible for Roberts to write a plurality opinion rather than a majority one, while Kennedy wrote a concurrence with the narrow result of ruling this mandate unconstitutional (and Sotomayor joining in part) — so that the narrow result would have a majority, but the major reasoning would have only a plurality, with Kennedy’s concurrence actually being controlling in terms of what happens next (e.g. some sort of weird remand).

Of course, maybe somebody piped some bath salts into my room and I’m hallucinating. This is all too complicated by half. It’s probably just what happens when I/we have too much time to speculate.

On the other hand, the high court has done weird things like this before. With Kennedy in the mix, anything is possible.