SCOTAL Itch

[Clutch Munny]

Originally Posted by Sauron

it is not the "largest tax increase in history".

[davidm]

As always, Jim "Clusterfuck Nation" Kunstler has his own unique take on health care and related matters here.

[Sauron]

Originally Posted by Stephen Maturin

As evidenced by the [thanks], our ol' friend D. Scarlatti has been looking in of late. Like most everyone else, he figured that the taxing power argument wouldn't succeed. Even so, big ups to him for foreshadowing the outcome of the ACA litigation back in March of 2010.

You lawyer types are always backslapping each other, aren'tcha? Just can't get enough of that gloating?


While using your disapproval to silence the rest of us?

[Clutch Munny]

Republican lobbyist and media pundit has part-time job with obscure govt agency.

[Watser?]

Oh yeah.

I think the version is now: There is no constitutional right to contraception, or to privacy, but there is a right to own a rocket launcher.

[Sauron]

Originally Posted by Clutch Munny

Republican lobbyist and media pundit has part-time job with obscure govt agency.

To quote:

"Of course, I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years, 26 years, sure. I mean, I shouldn't have to tell you that. Unless you think I'm a fool."

Wait, what?

But I thought that conservative judges didn't engage in judicial activism, with agenda-driven decision making.
Wasn't that supposed to be liberal judges that did that kind of thing?

This looks like an accidental confession by Scalia of having a plan, an agenda, a judicial goal he wanted to attain - and to have worked at that goal for over two decades.
Not that I ever doubted it....

[Stephen Maturin]

One of the many lawsuits contesting the constitutionality of the Obamacare individual mandate was Liberty University v. Geithner, previously discussed here. The U.S. Court of Appeals for the Fourth Circuit ruled in September 2011 that the federal Anti-Injunction Act barred the lawsuit, even though none of the parties to the case made any AIA-based arguments on appeal.

The Supreme Court denied Liberty U's petition for certiorari, choosing to use other cases as vehicles for deciding the constitutionality of the individual mandate and Medicaid provisions. When the Court ruled in June that the IM was a valid exercise of the federal Taxing Power, it also ruled that the AIA didn't apply.

Over the summer Liberty filed a petition for reconsideration of the cert denial. Today the Supreme Court granted that petition, vacated the September 2011 court of appeals decision and remanded the case to the Fourth Circuit for reconsideration in light of last term's Obamacare ruling.

In their lawsuit Liberty U. and two individual plaintiffs challenged both the individual mandate and a separate provision requiring "large employers" (50 or more full-time employees) to offer full-time employees and their dependents a chance to enroll in an employer-sponsored health plan or, under certain conditions, pay a fine.

Liberty's complaint followed the "kitchen sink" approach, contending that both the individual and employer mandates: exceed the scope of Congress' authority under Art. I, Section 8 of the Constitution; violate the plaintiffs' rights under the Establishment, Free Exercise, Free Speech and Free Association Clauses of the First Amendment; violate the Due Process Clause of the Fifth Amendment; violate the Guarantee Clause of Article IV, Section 4 of the Constitution; violate the restrictions on capitations and direct taxes imposed in Article I, Section 9; and violate the federal Religious Freedom Restoration Act.

Last term's ruling precludes any claim that the individual mandate exceeds Congress' enumerated authority (and probably the Art. I, Sec. 9 challenge as well), but today's SCOTUS order revives the rest of Liberty's claims. The trial court dismissed (pdf, 54 pages) all those claims back in November 2010, but the Fourth Circuit must now consider those claims on the merits. Regardless of how the appellate court rules, it looks like Obamacare will be back in front of the Supreme Court next year.

By the way, Liberty University used to be known as Liberty Baptist College. It's the very same institution founded by the thankfully dead Jerry Falwell. Its lawyer is Mat Staver, the craven liar who runs Falwell's wingnut activist law firm, Liberty Counsel, and serves as dean of Liberty U's law school.

Essentially, Staver is claiming that RFRA and various provisions of the Constitution permit Liberty and the other plaintiffs to ignore the provisions of Obamacare they don't like on religious grounds. In other words, it's another case of wingnuts demanding "special rights."

[Stephen Maturin]

Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ___ (2012) (pdf, 5 pages).

Nothing much to see in this here summary decision issued today. It's just another example of the odious precept that when full and fair access to courts is pitted against an arbitration clause, the arbitration clause always wins.

[Stephen Maturin]

The Court granted cert in two gay marriage cases today:

1) In Hollingsworth v. Perry, the issue raised in the cert petition is:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

That's the case in which the State of California refused to defend Prop. 8 in court. Anti-gay activists and organizations intervened in the case as defendants and championed Prop. 8's cause. In view of those peculiar facts, SCOTUS has ordered the parties to brief another issue:

Whether petitioners have standing under Article III, Section 2 of the Constitution in this case.

If the answer to that question is no, then Equal Protection issue won't be addressed.

2) U.S. v. Windsor is the case in which the U.S. Court of Appeals for the Second Circuit ruled that Section 3 of the federal Defense of Marriage Act, which defines "marriage" and "spouse" to exclude same-sex couples for purposes of federal law, violated the equal protection component of the Fifth Amendment. The issue presented in the petition is:

Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

The Court may be looking for a way out of deciding the substantive issue here as well. It's ordered the parties to brief these additional issues:

Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

[erimir]

Supposing that they decided that they couldn't wriggle out of it on the basis of standing, does this make it seem more likely that they would rule in favor of gay marriage?

I mean, we know that Scalia and Thomas won't, but could this be a situation like with Obamacare where maybe Roberts is concerned about his legacy should they rule against gay marriage (but at the same time, he would rather not rule in favor of it)?

[LadyShea]

I have been waiting for years for someone to explain how the 14th Amendment doesn't stomp the shit out of these one man/one woman laws

[The Man]

Supreme Court to make procedural ruling on who can argue DOMA case | The Raw Story

Probably important to note.

[Stephen Maturin]

One of the many remaining Obamacare issues is whether Health Resources and Services Administration regulations implementing the statutory requirement of "preventative care and screening" for women violates a business's rights under the Free Exercise Clause of the U.S. Constitution and/or the federal Religious Freedom Restoration Act. In other words, is a company entitled to an exemption from the HRSA regs where following the regs would allegedly violate the company owners' religious freedom by making them provide insurance coverage for "abortion-inducing" contraceptives in contravention of their religious beliefs.

Hobby Lobby is a secular, for-profit corporation. It's also closely-held, owned and operated by a family of self-described devout Christians. The owners want a religion-based exception to the contraception regs for Hobby Lobby and another corporation they own and operate.

Back in November, a federal judge in Oklahoma denied Hobby Lobby's request for a preliminary injunction prohibiting enforcement of the regs. The judge ruled that corporations don't have free exercise rights under RFRA or the Constitution, and that the individual plaintiffs failed to prove a probability of success on the merits.

Hobby Lobby appealed the denial order to the U.S. Court of Appeals for the Tenth Circuit, and asked the appellate court to issue an injunction pending resolution of the appeal. Last week the 10th Circuit denied the demand for an injunction. The appeal remains pending, but the injunction denial doesn't bode especially well for Hobby Lobby.

Right after the 10th Circuit ruled, Hobby Lobby petitioned the Supreme Court for an injunction. Justice Sotomayor, in her capacity as Circuit Justice for the Tenth Circuit, told Hobby Lobby to pound sand.

So the Hobby Lobby case will have to make its way to SCOTUS the usual way. In the meantime, conflicting lower court decisions remain in force. In November a federal judge in D.C. enjoined enforcement of the regs in question against Tyndale House Publishers, another for-profit, closely-held corporation owned by Christians opposed to contraceptives.

[LadyShea]

In November a federal judge in D.C. enjoined enforcement of the regs in question against Tyndale House Publishers, another for-profit, closely-held corporation owned by Christians opposed to contraceptives.

They are not a secular business though, they publish Christian books for Christian consumers, so they are much closer to meeting the religious exemption requirements than is Hobby Lobby.

Or, that's how I read it and IANAL so grains of salt

[The Man]

Hobby Lobby's request for an injunction blocking the contraception mandate has been denied.

ETA: now that I look at Matlock's post already I think he already mentioned this. Oh well.

[Stephen Maturin]

One of the more entertaining aspects of Supreme Court practice and procedure is that any dumbfuck dipshit weirdo can request permission to file a friend-of-the-court brief in a pending case.

The pending case at issue in this here poast is United States v. Windsor. At issue in that case is whether Section 3 of DOMA, which provides that only traditional marriages are recognized for purposes of federal law, is constitutional.

This amicus brief is a veritable cornucopia of dumbfuckery. The friends of the Court named on-brief include Citizens United (yes, THAT Citizens United) along with outfits with such illustrious monikers as English First, Gun Owners Foundation, The Lincoln Institute for Research and Education and U.S. Justice Foundation. Another amicus is a Virginia state senator named Dick Black.1

The arguments are ... interesting. First of all, DOMA in general and Section 3 in particular are authorized by the Necessary and Proper Clause of the Constitution, and courts are precluded -- PRECLUDED I SAY -- from reviewing Congressional action under that provision. I doubt these same organizations applied a similar reading of the N&P Clause in connection with the Obamacare case, but so fucking what!

Also, it's good to know that queers fruits faggots pillow-biting poofs homosexuals are by no means a politically powerless or historically discriminated-against group. Never knew that until reading this brief! Wow, what a relief, eh?

But my favorite part is how DOMA doesn't violate anyone's equal protection rights because the federal government isn't bound by equal protection principles. Technically, pursuant to the Greg Brady Doctrine, the whackadoos are right. The only mention of equal protection in the Constitution is in the 14th Amendment, which applies only to the states. The Fifth Amendment, which binds the federal government to due process principles, doesn't mention equal protection.

In the 1954 case Bolling v. Sharp, the Court held that equal protection is a component of the Due Process Clause of the Fifth Amendment and therefore applicable to the federal government. Thus, racial segregation in the D.C. public schools was every bit as unconstitutional as racial segregation in state public schools. The Court found it "unthinkable that the same Constitution would impose a lesser duty on the Federal Government."

Well now, hold on just a goddamn second there, Cochise. These here friends of the Court consider it "eminently 'thinkable' that the Reconstruction Congress, led by abolitionist Republicans, would propose an amendment to the Constitution that would increase the powers of the federal government at the expense of the states." So if you want to blame someone for the fact (FACT) that the federal government is free to discriminate against gay folks, place the blame where it belongs, namely on those asshole abolitionists who insisted on brutally murdering the sacred institution of slavery!

The merits briefs of the actual parties to the case are no doubt substantially less crazy. (Or so I hope. Haven't actually read them yet.)

1Does anyone else remember a shitty movie called Hardcore starring George C. Scott? If so, you may also remember, "What the fuck you mean not interested? I'm Dick Black, goddammit. I'm a living legend. I'M BIG DICK BLACK. I can cum ten times a day!" In that event, you will understand why seeing that name made me lol.

[Anastasia Beaverhausen]

Originally Posted by BigBlue2

In Sydney that will get you a nice front porch. I'm not joking.

My darling wife's (Anastasia Beaverhausen on this august forum) visit to the ER + 3 or 4 GP visits + X-Ray + ultrasound for a severely twisted ankle including possible ligament damage? $0. I love socialism.

You forgot 4 months of physiotherapy. Still $0.

[Clutch Munny]

Originally Posted by Stephen Maturin

"eminently 'thinkable' that the Reconstruction Congress, led by abolitionist Republicans, would propose an amendment to the Constitution that would increase the powers of the federal government at the expense of the states."

lollerskateses

[LadyShea]

US supreme court leans towards striking part of Voting Rights Act | Law | guardian.co.uk

I am really curious about this. If SCOTUS removes the special oversight from the Southern states, based on the argument that they've "changed since then" or whatever, what might happen?

I can see the states/locales bending over backwards to prove that they have indeed changed their ways, but only if some kind of grievance system is still in place so any shenanigans would pose a risk.

IOW, if Shelby Fucking County wins this, they won't want egg on their face, I wouldn't think. But, Shelby Fucking County, so who knows?

I read this

That is why Congress built into the act a bailout provision, which allows jurisdictions that have maintained clean records for 10 years to go to court to end federal oversight. Dozens of jurisdictions have done just that. http://blogs.reuters.com/great-debat...ng-rights-act/

If that's true, and if there has been this great change as claimed so the law is no longer needed, why are the jurisdictions still covered?

[LadyShea]

A Corporate Call for Change in Gay Marriage Case - NYTimes.com

cool but unexpected, to me anyway

[LadyShea]

What do you legal types think of the argument that Congress has no Article III standing in the DOMA case?

http://www.supremecourt.gov/docket/P...tAppointed.pdf

Vicki Jackson has been given 20 minutes to make this argument to the court on March 27

[Dingfod]

SCOTUS rules you have the right to resell legally purchased foreign copyrighted items in the United States without approval from the copyright owner, under the "first sale" doctrine, which allows a copyright holder to profit from the first sales of copyrighted work, but not the subsequent sales of the same item. *sigh of relief*

Supreme Court issues major copyright ruling on foreign sales - latimes.com

[Stephen Maturin]

The oral argument transcript in Hollingsworth v. Perry, the Proposition 8 case out of California, is available here (pdf, 82 pages).

Damned if I know what to make of that shit. For now, I'll say that a bare majority will hold that the proponents of Prop. 8 lack standing to pursue the case on appeal. If that happens, the Ninth Circuit decision goes away but the trial court decision invalidating Prop. 8 would stand (probably). But that's just a half-assed guess.

Justice Kennedy suggested that SCOTUS shouldn't have taken the case in the first place. If the Court dismisses the case because a majority finds that cert. was "improvidently granted," that would leave the Ninth Circuit decision intact as well. Doesn't look like that viewpoint has any other takers, though.

Inability to reach a majority decision might result in an affirmance of the Ninth Circuit. Or not, depending on the reasons the justices give for their respective positions.

Argument in the DOMA case takes place tomorrow. The facts couldn't be better than they are in U.S. v. Windsor. The plaintiff, who's in her 80s, lawfully married her same-sex partner of 40 years in 2007. The plaintiff's spouse died a couple of years later, and plaintiff inherited the estate. Thanks to DOMA, the plaintiff got stuck with a $363,000 estate tax bill that she wouldn't have had if her spouse had a weiner instead of a cooter.

The administration is not defending DOMA. In fact, it agrees that Section 3, which states that only opposite-sex marriages are valid for purposes of federal law (including the Internal Revenue Code provisions at issue in Windsor) is invalid. Instead, certain Republicans affiliated with the House Bipartisan Legal Advisory Group are defending DOMA. Needless to say, there are serious questions about standing in this case as well, so we may or may not get a ruling on the substantive constitutional issues.

And finally, the Court decided Florida v. Jardines today. The Court ruled 5-4 that the pigs conducted a Fourth Amendment search by bringing a drug-sniffing dog onto the defendant's front porch. The dog alerted, and on that basis the pigs got a warrant to enter the house and found pot plants. The Court upheld the Florida Supreme Court's determination that bringing the dog onto the property without probable cause was a Fourth Amendment violation all by itself and thus couldn't serve as probable cause to get a search warrant. The majority (Scalia writing the opinion) concluded that the entry onto the defendant's property implicated the 4th because it was a common law trespass, so they didn't consider the defendant's reasonable expectation of privacy argument.

[erimir]

I wasn't at all expecting the SCOTUS to invalid all gay marriage bans, but I was kinda hoping they'd at least go as far as the DoJ was arguing and rule that denying the name marriage to civil unions that are essentially the same serves no purpose other than to mark gay relationships as lesser and therefore not Constitutional.


The weirdest thing about that Jardines case is that it was Scalia, Thomas, Kagan, Sotomayor and Ginsberg ruling one way and Alito, Roberts, Kennedy and Breyer on the other side.

Feels weird to agree with a 5-4 decision that Scalia and Thomas both were part of.

[Stephen Maturin]

Originally Posted by erimir

Feels weird to agree with a 5-4 decision that Scalia and Thomas both were part of.

That feeling never goes away, believe you me.