Category Archives: Courts

Progress

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Recall that the DC Circuit had struck down President Barack Obama’s “appointment” of three of his folks to the NLRB, ruling in blunt terms that these appointments were unconstitutional since they had been made while the Senate was in session.

Now the 3rd Appellate Circuit, centering its opinion on the “appointment” of Craig Becker in March 2010, has expanded on that for its area of jurisdiction (Delaware, New Jersey, and Pennsylvania), ruling that rulings made by this unconstitutionally constituted board were without effect since the NLRB, lacking a quorum, had no capacity for issuing its rulings.  The 3rd Circuit’s ruling says in part

We hold that the “the Recess of the Senate,” in the Recess Appointments Clause refers to only intersession breaks.  As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members [three] to exercise the Board’s authority.

The narrow outcome of the ruling is this:

…a disputed union election that occurred at a New Jersey nursing home.  The NLRB denied the nursing home’s motion that the board illegitimately forced the company to recognize unionized managers.  The Appeals Court ruled that the board did not have the authority to dismiss the motion because of the recess appointments.

The broader outcome of the ruling is to invalidate over 900 rulings issued by the NLRB while it had no quorum with which to do so, including more than 200 since the board’s current makeup was ruled unconstitutional by the DC Circuit, which has national jurisdiction in such matters.

This can have only salutary effects for our country.

Time to Fire a Judge?

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Last month US Federal Judge Edward Korman ruled that the Food and Drug Administration must permit the morning after pill—the so-called Plan B pill—to be sold over the counter, to be stocked on store shelves rather than held behind the pharmacist’s counter, and to be saleable to “women” of all ages—i.e., including to children.  And saleable to these children without any parental involvement, which is the outcome of eliminating the FDA’s by-prescription and age-limited sales.  That’s bad enough.

Now, though, in response to the government’s decision to appeal this ruling and to ask that Korman stay his order pending that appeal, Korman is cynically decrying as politics the government’s objection to his interference in family matters—while demonstrating the involvement of his own politics in this matter.

Korman told an assistant US attorney that the FDA ruling [partially implementing Korman’s ruling] was a cynical attempt to “sugarcoat this appeal of yours.”

I don’t often agree with this administration, but on this matter, I do.  Korman went on, accusing Justice’s lawyer of “intellectual dishonesty” and calling further delays “a charade.”  Because the lawyer disagreed with Korman’s ruling and its efficacy.

He wasn’t finished.

When the government lawyer argued that delaying Korman’s order while it was on appeal was in the public interest, the judge responded, “Is there a public interest in unwanted pregnancies…that can often result in abortions?”

And

The judge…expressed outrage at another provision under the new FDA rules that would require government-issued photo identification to get the pills, placing an “impossible burden” on disadvantaged people without IDs.

And

“The poor, the young and African-Americans are going to be put in the position of not having access to this drug,” [Korman] said.

Minors are, by definition, incapable of making their own decisions without adult guidance.  Thus, I have some questions for Korman:

  • is there a public interest in allowing minors to act on so serious a matter solely on their own recognizance?
  • is there a public interest in cutting parents out of the decision-making of their minor children, leaving children with no adult guidance?

Korman’s objection concerning access plainly is not true.  Parental involvement gives them the access those parents—not a remote, disinterested judge—deem appropriate.  The prescription gives them access through the guidance of another adult—generally with the parents involved here, also.

And so a final question:

  • is there a public interest in leaving the many unaided by adult guidance by barring an imperfect system which, if implemented, would leave a few without that guidance?

Korman’s arrogance in decrying the government’s representatives and the government for their daring question his ruling with its pseudo-logic, frankly, is worse than his ruling with its pseudo-logic.  Judges aren’t kings whose decisions are above the questioning of the judges’ inferiors.  Korman needs to be reminded of that.  Forcefully.

In the end, Korman officially refused to stay his order pending appeal.  In his ruling, he opined, in part,

that if the status of these drugs is changed and later reversed, it can lead to situations in which women mistakenly believe that they can obtain the drug without a prescription or at certain locations where it used to be available, but is no longer.

This argument assumes that defendants have a likelihood of success on the merits and is largely an insult to the intelligence of women.

Because the children newly granted access behind their parents’ backs are women.  And because Korman has never dealt with a government rule from the outside, being himself inside government.

On the question of identification, Korman does have a valid point:

He also questioned why the government takes an opposite position in voting-rights cases, where the US has argued that identification requirements discourage some people from voting.

But this isn’t enough to validate his overall ruling or his refusal to stay it pending appeal.  He still needs to be reminded, decisively, of his place in our employment as a member of our government.

A Thought on Gun Control

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Recall that last November the 2nd Circuit upheld a New York law requiring those who want to carry handguns to show “a special need for self-protection.”

There is an underlying problem with this.  The Federal Constitution does not allow the Federal government to decide the purposes for which it will permit citizens to “keep and bear arms.”  The Constitution requires the Federal government not to infringe citizens’ right to keep and to bear, period.  There is no “except for when the government deems otherwise” caveat; the clause reads the right of the people to keep and bear Arms, shall not be infringed.

This also is clear from the authors’ understanding of the terms of relevance here: from the 10th edition of Johnson’s Dictionary we have: Infringe: 1. To violate; to break laws or contracts.  2. To destroy; to hinder.  That definition has not changed much, if at all, in the intervening more than one hundred years since the Constitution was written.

Additionally, the right to keep must mean the right to bear anywhere, else the keeping has no import.  Moreover, the right to bear is as explicitly stated in the Clause as is the right to keep, and that right has no limit on where stated, and so there is no limit.

On top of that, in A well regulated Militia, being necessary to the security of a free State, “State” refers to the constituent States of the United States, not to the United States itself.  Again, the Federal government has no say.

Finally, Heller and McDonald made explicit the extension of these 2nd Amendment clauses to the inside of the individual States—all of them.

It should be clear, then, even to a New York-based 2nd Circuit, that the government has nothing to say on the purpose a private citizen, of any State or of the United States, might have for possessing or carrying about his privately owned weapon.  Indeed, as Judge Richard Posner of the 7th Circuit notes, a citizen’s need can be acute everywhere, and with particular reference to “a special need for self-protection,” Posner had this in his opinion in Moore v. Madigan:

Twenty-first century Illinois has no hostile Indians.  But a Chicagoan is a good deal more likely to be attacked on a sidewalk in a rough neighborhood than in his apartment on the 35th floor of the Park Tower.  A woman who is being stalked or has obtained a protective order against a violent ex-husband is more vulnerable to being attacked while walking to or from her home than when inside.  She has a stronger self-defense claim to be allowed to carry a gun in public than the resident of a fancy apartment building (complete with doorman) has a claim to sleep with a loaded gun under her mattress.

It’s certainly true that some reasonable State-level (but not Federal) limits on the where might be applied.  It’s reasonable, for instance, to uphold the right of a private business owner to bar weapons from his establishment.  It’s reasonable for a State to bar private citizens’ weapons from a courtroom.  It’s reasonable for a State to bar the bearing anywhere (and so to bar the keeping) by those convicted of violent crimes.  It’s reasonable for a State to bar the bearing in public by any other citizen absent that citizen’s possession of a license demonstrating his understanding of the handling and maintenance of his weapon.

But there’s very little else that a government might do to inhibit those 2nd Amendment rights.

It’s Bad

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…when the court pokes fun at a case.

In Bayou Lawn, et al., v Department of Labor, Bayou Lawn, the Chamber Of Commerce of the United States of America, the National Hispanic Landscape Alliance, the Silvicultural Management Associates, Inc., and the Professional Landcare Network, among others, objected to a number of wage rules and bureaucratic requirements related to the H-2B visa program that had been promulgated by DoL.  Among other things, these groups doubted DoL’s authority even to write such rules.

Nor were DoL’s rules insubstantial:

These rules would decrease the maximum number of months an employer may employ an H-2B worker from ten to nine; require employers to guarantee that H-2B employees will work at least seventy-five percent of the hours certified in any twelve-week period and, if not, pay the employees the difference for the time not worked; require employers to pay non H-2B workers’ wages and benefits at least equal to those paid to H-2B workers if the two perform “substantially the same work;” require employers to pay for the round-trip airfare and subsistence costs of H-2B workers; and impose additional bureaucratic requirements, such as the filing of job orders, performing extensive domestic recruitment, and applying for a temporary labor certification.

A Federal court in Florida agreed and enjoined DoL from enforcing its rules.  DoL appealed, even while conceding that it had no actual authority for promulgating these rules [emphasis in the original]:

The DOL does not dispute that it has no express authority to make rules for the H-2B program.

Rather, DoL argued in all seriousness,

DOL counters that its authority may be inferred from the “statutory scheme [that] shows a Congressional intention to grant [it] rulemaking power.”

And here is the scheme that DoL argued [emphasis still in the original]:

[Federal law] instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.”  Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.”  The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

The 11th Circuit thought this pseudo-reasoning…foolish.

We reject this interpretation of “consultation.”  Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.”  This is an absurd reading of the statute and we decline to adopt it.
…
DOL was designated a consultant.  It cannot bootstrap that supporting role into a co-equal one.
…
DOL next argues that the “text, structure and object” of the INA evidence a congressional intent that DOL should exercise rulemaking authority over the H-2B program. This would be a more appealing argument if Congress had not expressly delegated that authority to a different agency.

And so on.

Just what is the competence level in this administration?

The 11th‘s ruling can be read here and here.

 

h/t Law Blog

The Supreme Court and Prop 8

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In California, the people—right, wrong, or indifferent—have spoken.  What the Supreme Court needs to think about as it considers California’s Proposition 8, which bans gay marriage in that state, is whether the people are sovereign or the Court presumes to be.

Justice Anthony Kennedy, in questioning lawyers defending the Proposition, pointed out that the children of gay parents have voices that ought to be heard.  And so they should.  When they’re adults, those 40,000 children (compared with the 10 million, or so, adult Californians who already have spoken in that referendum) can spearhead a new Proposition that would reverse Prop 8.  The people, after all, can change their minds.  That’s also easier to accomplish than getting the Supreme Court to reverse itself, even on an opinion with which they’ve interfered with the 10th Amendment.

Justice Sonia Sotomayor, also questioning lawyers defending Prop 8, asked why California had an interest in denying gay couples the right to marry.   But this is to misunderstand the role of the Federal government in a Republic whose social compact has a 10th Amendment.  The Federal government—and so the Supreme Court as the pinnacle of a branch of that government—has no interest in why a state wants to do a thing, a thing that does no harm to its neighboring states or to the United States, within its own borders.

The only legitimate ruling for the Court is to let the people’s decision stand.  And leave California, in competition with those other states whose citizens have determined otherwise, to live with the consequences of its choice.  That’s simply an application of Saul Alinsky’s Rule 4.