Category Archives: Courts

A Grievous Supreme Court Error

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The Supreme Court has ruled unfavorably on Arizona’s SB1070, with which it attempted to secure its border with Mexico and the safety of Arizona citizens (the ruling, with the dissents, can be read here).  Sort of letting stand a provision that required Arizona police to check the immigration status of those they suspect may be in the country illegally (the Court sent this back to the lower court for further argument), they struck the rest of the law making it a crime for immigrants to look for work without work permits (never mind that Federal law requires the permits), to not carry their immigration papers (never mind that Federal law requires legal aliens to carry these papers), and let police arrest those whom they suspect committed crimes for which they could be deported.

Justice Scalia, in his dissent (to, apparently, a 5-3 decision, with Justice Kagan having recused herself), had the right of it:

Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.

As did Justice Thomas, for a different, narrower, reason:

I agree with Justice Scalia that federal immigration law does not preempt any of the challenged provisions of SB 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the ‘ordinary meaning’ of the relevant federal laws and that of the four provisions of Arizona law at issue here.

And Justice Kennedy, writing for the majority has revealed an appalling mindset for an American judge:

Some discretionary decisions involve policy choices that bear on this Nation’s international relations.

This is a domestic law, and a domestic concern. Foreign opinion has no bearing. But this Progressive administration gave their view of American sovereignty when it encouraged 11 foreign nations to join the suit at the Appellate level.

We badly need an election, so this error can be corrected legislatively.  Oh, wait….

Lobbying with a Red Herring

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The Associated Press is joining the lobbying of the Supreme Court over the Patient Protection and Affordable Care Act, and its effort is either cynical or ignorant, depending on their motive for their chosen focus:

During the recent oral arguments some of the justices and the lawyers appearing before them seemed to be under the impression that the law does not allow most consumers to buy low-cost, stripped-down insurance to satisfy its controversial coverage requirement.

The AP presents this as a “possible misunderstanding” the “could cloud” the Court’s deliberations.

Of course, cost is only a peripheral issue, arising primarily from Justice Antonin Scalia’s discussion of the subsidy a young, healthy American (who does not need health insurance—and who used to be able to make that decision for himself) must pay, through forced purchase of unneeded/undesired health insurance, so that others, claiming the need, can afford to get health insurance.

The question before the Court—as all the players understood, making their arguments concerning the constitutionality of PPACA’s Individual Mandate, and by extension of the PPACA itself, as they did—is the question of individual liberties and the degree to which Government can, under our Constitution, limit our liberty for our own good.

Cost isn’t the issue—freedom and government control over an individual’s decisions is.

It’s Not My Fault

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In his diatribe against the Supreme Court over its potential (not realized) to overturn the Patient Protection and Affordable Care Act, President Obama is not demonstrating a breathtaking ignorance of our Constitution or of the Federal Courts’ power of review of Congressional legislation.  Instead, he’s just beating an old familiar drum: any failure is somebody else’s fault.

In “framing the court as a potential villain that substitutes its judgment for that of elected legislators,” he’s just setting up the next set of villains in his serial pulp novel, I Didn’t Do It.

Mr. Obama ticked off a string of popular benefits that would disappear if the law is shot down….

Thus, Obama cynically ignores the fact that, were they good ideas, they could have been enacted, after public debate rather than locked door deals, through constitutional legislation.  Or he could have let a free market agree that they’re good ideas and generate a (potentially large) niche for them.

But Mr. Obama…said he was confident the high court would not [strike down PPACA], partly because conservatives—who are in the majority on the court—have long argued against what some refer to as legislating from the bench.

He, just as cynically, conflates upholding the Constitution as judicial activism.  Also,

He said that without the mandate, it would be impossible to require insurance companies to cover everybody, including those with pre-existing conditions, at a reasonable price.

He ignores the fact that it’s impossible to require this at any price.  A free market, however, would allow such coverages at costs commensurate with the risks being transferred.

President Obama, through his Press Secretary Jay Carney, even argues with a straight face that for the Court to overturn PPACA would be to undo 80 years of precedent vis-à-vis the Commerce Clause.  This disingenuously ignores recent Commerce Clause overturnings that others have described.  Even more disingenuously, it ignores the fact that those “80 years of precedent” began with Supreme Court’s overturning of 100+ years of Commerce Clause precedent in Jones & Laughlin and Wickard—the former by a Court thoroughly intimidated by FDR’s court packing effort, and the latter carried out by an FDR-packed Court, a Court in which 8 of the 9 Justices were FDR appointees.

And it puts Obama in the strange position of implying that Brown was wrong because it overturned 80 years of precedent flowing from Plessy.

It’s not my fault.  The devil made me do it.

The Supreme Court and Rule By Law

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Steven Hayward, at Power Line, wonders whether the Supreme Court could take a mulligan on the Patient Protection and Affordable Care Act case before them.  The background for his question is this:

What people forget is that Citizens United was reargued, because the Justice Department also could not give a coherent answer to a killer question, this time from Justice Alito, as to whether the campaign finance laws that prohibited the distribution of Hillary, the Movie wouldn’t also allow the Federal Election Commission to regulate the distribution of books near election day.  Then-solicitor general Donald Stewart answered Yes, notwithstanding that pesky little First Amendment thingie.

Alarmed, the Court ordered the case reargued, specifically expanding its scope to ask whether certain previous cases that provided the basis for Stewart’s answer had been erroneously decided and should be overruled.  During the second oral argument, a new solicitor general—Elena Kagan—was asked the same killer question, and answered: “No [we can’t regulate books]; the government’s position has changed.”

Stop and dwell on that one phrase for a moment: “The government’s position has changed.”  That says about all you need to know about the rule of law in the liberal wonderland of today’s administrative state.

The question in the Court’s present PPACA case that raised Hayward’s concern was Justice Kennedy’s “Can you create commerce in order to regulate it?”

The question I have, though, concerns the Court’s position on the rule of law vs rule by law.  Why did the Court need to wait on the Executive’s instruction to it of the distinction between one form of free speech and another form of the same speech?  Surely it knows that there is no distinction, and it can rule on its own initiative.  Surely, it could have recognized on its own judgment that a proper ruling in Citizens (i.e., that speech really is a matter of freedom) would require acceptance that it had decided erroneously on earlier cases, and that those opinions would have to be overruled.  How many times was Brown argued on the recognition that Plessy would have to be overruled?

Surely the Court knows that when commerce does not exist, there is nothing to regulate, and by extension, government cannot create commerce out of the æther in order to have something to do.

That this Court needs these answers makes me wonder about its own attitude toward rule of law.  It got Citizens right, but it shouldn’t have needed additional (and in the event both erroneous and irrelevant) instruction from the Executive in order to do so.  It shouldn’t need additional instruction here, either.

One for the Good Guys

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“The Clean Water Act prohibits the discharge of any pollutant by ‘any person,’ without a permit, into ‘navigable waters’,” noted the Supreme Court in the summary of its just concluded ruling in Sackett v. Environmental Protection Agency.  It went on in that summary:

The Sacketts, petitioners here, received a compliance order from the EPA, which stated that their residential lot contained navigable waters and that their construction project violated the Act.

A little background at this point: the case got to the Supreme Court because Mike and Chantell Sackett began construction on their dream home in 2007, on a lot completely surrounded by a developed residential neighborhood, complete with lots of already existing sewer lines.

The EPA decided that this completely residentially surrounded lot had wetlands on it connected to navigable waters, and it issued a compliance order to desist from construction and to restore the wetlands (violation of the order carried potential penalties of $75,000 per day—for those keeping score at home, that works out to an accrued penalty of $130 million).  Rather than rolling over and giving up on their dream, the Sacketts sought relief in Federal District Court for the District of Idaho (their property was in Bonner County, ID), arguing among other things an illegal taking under the Constitution’s 5th Amendment.  The Court dismissed and the Ninth Appellate (of course) sided with the EPA and upheld the District Court.  After all, the Ninth held, the CWA has no mechanism for a private citizen to object to the EPA’s diktat, and so there was no standing to sue.  The Sacketts appealed to the Supremes.

The Supreme Court’s unanimous ruling was short and sweet in its essence:

The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.

Justice Antonin Scalia, writing for the Court, also had this to say about the government’s arrogance, particularly its claim that were EPA compliance orders subject to judicial review, the EPA’s ability to enforce clean water protections would be interfered with [emphasis mine]:

The Government warns that the EPA is less likely to use the orders if they are subject to judicial review.  That may be true—but it will be true for all agency actions subjected to judicial review.  The APA’s [Administrative Procedure Act, which provides for judicial review of agency rulings and orders] presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all.  And there is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into “voluntary compliance” without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.

Justice Samuel Alito, in a concurring opinion, added this about the government’s arrogance [emphasis added]:

The position taken in this case by the Federal Govern­ment—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees. …

Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. … In a nation that values due process, not to men­tion private property, such treatment is unthinkable.

Although this particular EPA abuse began under another administration, it remains a glaring example of the unbridled self-importance of the agency and of its routine reach for additional power.

It’s also clear example of the necessity of abolishing this agency: it’s too far, and for too long, out of control, and it is irredeemable.