Category Archives: Courts

Our Judiciary’s Selective Enforcement

Posted on by
Reply

The Ninth Circuit strikes again.  The Ninth agreed with a Federal district court that an Idaho law that lets state authorities bring criminal charges against pregnant women who seek abortions by using medications purchased online would likely be found unconstitutional (the Ninth Circuit ruling can be found here).  The Ninth, however, overruled the lower court’s enforcement injunction, saying it was too broad.  Instead, the Ninth substituted its own injunction: state authorities are enjoined only from enforcing the Idaho law against the particular woman who brought the case, not from enforcing the law everywhere else.

The WSJ‘s Law Blog provides a summary of the case:

In May 2011, Mark Hiedeman, the prosecuting attorney in Bannock County, Idaho, brought criminal charges against Jennie Linn McCormack, an unmarried mother of three, after she purchased medications over the Internet in 2010 to terminate her pregnancy.  There are no licensed healthcare providers who offer abortions in southeastern Idaho and Ms McCormack, who didn’t want to have additional children, claimed the medications were prescribed by a physician outside of Bannock County.

The lower court set aside the case against McCormack and enjoined the prosecutor from enforcing the law against anyone on the grounds that it was unconstitutional.

Set aside your views of abortion for a moment, and consider what this appellate court has done vis-à-vis the injunction.

The law under which Hiedeman attempted to prosecute McCormack was found by the district court to be unconstitutional, and the Ninth agreed: it is likely be found unconstitutional.  Yet the Ninth then overruled the district court’s injunction against enforcing that law at all.

Their logic centers on the premise that the law has not yet, in fact, been found unconstitutional, and so the original broad injunction went too far.  Yet injunctions, by their nature, are temporary—even permanent ones, which can be withdrawn for any number of reasons at any later date when they’re found no longer to be useful.

So where is the harm done by the lower court’s broader injunction?  The state is harmed by not being able to enforce a law that is, nominally, legitimate.  Women are harmed by being threatened with prosecution—and potentially prosecuted and convicted—for acting as McCormack did and who is protected from prosecution for those same actions by the injunction as modified by the Ninth.  The women who are under the gun here, also are in a time-sensitive situation: their pregnancy must be terminated promptly, or not at all.  We the People are harmed by this court’s announcement that selective enforcement of a law, as a matter of state policy, is entirely legitimate.

This is a rule of law question, regardless of what we might think of the legitimacy of abortion itself.

Voting Rights

Posted on by
Reply

From The Wall Street Journal‘s Law Blog comes this hopeful sign.  A number of states have filed a Friend of the Court brief in support of South Carolina as that state prepares to defend itself against the Obama administration’s assault on its effort to protect the sanctity of the vote.  The money paragraphs in the brief speaks is this, and it needs no further comment from me.

Because Section 5 [of the Voting Rights Act of 1965] applied arbitrarily to the Covered Jurisdictions [i.e., those states subject to the VRA], none of which uses discriminatory tests or devices, and many of which have higher voter turnout, or lower disparity in minority voter turnout, than many of the uncovered jurisdictions, the Covered States are denied the fundamental principles of equal sovereignty and equal footing.  Because the VRA’s purpose is to eradicate voting discrimination for all United States citizens, treating states differently is not congruent with the Act’s purpose.

The brief, BRIEF OF ARIZONA, ALABAMA, GEORGIA, SOUTH CAROLINA, SOUTH DAKOTA, AND TEXAS AS AMICI CURIAE IN SUPPORT OF PETITIONER, can be found here.

More Federal Dishonesty

Posted on by
Reply

This time, it’s an assault on our veterans, using their Mount Soledad Veterans Memorial Cross as the cudgel.  This is a case where the 9th Circuit Court of Appeals has ruled the veterans’ memorial unconstitutional because it uses a cross—a globally recognized symbol of a fallen soldier, as well as a global religious symbol—at the center of its memorial display.  Last month, the Supreme Court refused to hear an appeal of the matter.

Now we learn that after President Obama had his Solicitor General join the appeal, which increased the likelihood the Court would take the case (but did not guarantee it, as we’ve just seen), Obama had his DoJ engage in what would seem to be ex parte discussions with the ACLU—the opposition in this case—without the major plaintiffs, the Mount Soledad Memorial Association, present.  This also had the effect of cutting out the MSMA’s legal representation, the Liberty Institute.

This is an atrocious attack, not only on our veterans’ memorial, but on the concept of our right to petition our government for redress of grievances, and on our right to representation in the cases we have before any court of law.

Whatever you think of the memorial itself, feel free to call Attorney General Eric Holder’s office at 202-514-2001 and let him know, in no uncertain terms, your…dismay…at his underhanded duplicity.  While you’re at it, call your Congressman and both Senators with the same message.

And call President Obama: 202-456-1111 or TTY/TTD: 202-456-6213.

Amending

Posted on by
Reply

In last week’s NFIB v Sebelius Obamacare ruling, it looks a lot like the Supreme Court’s opinion rewrote the law in order to uphold it by calling the Individual Mandate’s exaction for not buying appropriate health insurance a tax.  Indeed, this was a central view of the major dissenting opinion.  Moreover, this ruling, whether it constitutes a rewrite of the law or not, seems to amend the Constitution by injecting a taxing power into the Taxing Clause that had heretofore not existed: the capacity for the Federal government to tax the inactivity of private citizens.  As a result, I thought I’d write a bit, in my hubris, about the permissible mechanisms for amending the Constitution.

The Constitution’s Article V is quite clear on this; the essentials are these (I’ve elided a couple of items that, today, are unlikely to come into question; read the whole Article to see them):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….

Notice that.  The people’s elected representatives in the Congress of the Federal government can propose amendments, but they can do no more than that.  The President cannot even do that much, except in his capacity as a private citizen.  None of the members of the Judicial Branch—the Supreme Court Justices, for instance—cannot even do that much, except in their capacities as private citizens.

The people of the United States, through their elected representatives in their State legislatures, or through their conventions in each of the several States, also can propose amendments to the Constitution.

Only the people of the United States, though, through their elected representatives in their State legislatures, or through their conventions in each of the several States, can ratify an amendment to the Constitution.

Amendment by the Federal Congress is not permissible.  Amendment from the judicial bench is not permissible.  The men and women who occupy Congressional and judicial positions, moreover, are sworn to uphold the Constitution as it exists, not as they might wish it to be.

Chief Justice John Roberts cited extensively from prior cases (as did Justice Ruth Bader Ginsburg in her opinion and the Four Dissenters in theirs).  Justice David Josiah Brewer wrote in prior case not cited by any of them, South Carolina v United States:

The Constitution is a written instrument.  As such its meaning does not alter.  That which it meant when adopted, it means now.

From the Supreme Court’s perspective, the Constitution is what it says it is.  Nothing else.  Convenient reinterpretations of the plain language to achieve a convenient end is amendment from the bench: rule by law.

Deference

Posted on by
Reply

I offer a couple of questions on the matter of judicial deference of which Chief Justice John Roberts reminded us with his ruling last Thursday on the matter of NFIB v Sebelius, the Obamacare ruling.  To be sure, this is far from the first time judicial deference has been applied; it’s an old and hoary doctrine.  But still, the questions arise.

How does deference work for a judicial system in its deliberations of the application of a law, including the supreme Law of the Land?  Deference would seem to be an a priori bias in favor of the government by a court that is supposed to be impartial and objective.  Is this an example of judicial empathy?

How does deference work for a judicial branch of the Federal government that’s supposed to be the equal of each of the other two branches?

In the quest for a “fairly possible” reading of constitutionality, as opposed to the actual text of the law, Justice Joseph Story said

No court ought, unless the terms of an act rendered it una­voidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.

Justice Oliver Wendell Holmes echoed the point:

[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.

These remarks are certainly consistent with the doctrine of deference, but quite apart from that, how are they consistent with objectivity and impartiality?  Particularly in adjudicating an overt question of legitimacy, of constitutionality, that legitimacy would seem be best found strictly in the text of the law itself, and failing that, in the legislative history of the law’s development, certainly not at the end of a long and convoluted search for meaning.