Category Archives: Courts

Rule of Law

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The DC Circuit Court stacked by President Barack Obama (D) seems to be iffy on the thing.  In an appeal concerning whether the monies the Federal government pays to health care plan providers as subsidies so the plan providers will hold down premiums and deductibles can actually be paid—the funds never were appropriated by Congress, so the payments aren’t legitimate, ruled the trial court—the Circuit Court ruled in part:

The States have shown a substantial risk that an injunction requiring termination of the payments at issue here…would lead directly and imminently to an increase in insurance prices, which in turn will increase the number of uninsured individuals for whom the States will have to provide health care[.]

That may well be true, and if true, it would be unfortunate.

However.

The law is clear: monies not actually appropriated by Congress cannot be spent by the Federal government—the money, in a very real legal sense, does not exist.  It’s also illegal to take funds from other, actually extant, appropriations to spend on non-appropriated-for activities.

The decisions whether to appropriate, and then to spend, are solely political decisions, and judges cannot—may not under our Constitution—decide in any way other than what the law actually says; in particular, they don’t get to rule in accordance with what they wish the law to say.  Doing the latter is nothing other than judge-made law.

In this case, the appellate court plainly has chosen rule by men—via judge-made law, here—over rule of law.

International Censorship

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France wants to enforce a “right to be forgotten” law (recently enacted by the EU that allows persons to demand publicly available information about them to be erased from links in search engine results) inside other nations than the EU membership—inside the United States, for instance.  Google, et al., is demurring, and France has taken the matter to the EU’s highest administrative court, the Court of Justice.

The case will help determine how far EU regulators can go in enforcing the bloc’s strict new privacy law….

It has wider implications than that. It will set a legal precedent, explicitly for the EU to reach inside the United States and censor our Internet, and that won’t be limited to EU privacy sensibilities, or EU views on censorship.

It’s broader, still. It will set a precedent for the PRC, which can intercept messaging images and erase them from the message before the intended recipient gets the message, to be exercised inside the US.

The Court of Justice ruling—likely to be in favor of France—will need to be explicitly rejected by us, with strong cyber consequences taken against the EU on its every attempt to enforce this first step at rank censorship against us.

The Meaning of “Is”

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The four liberal Justices on the Supreme Court are still confused.  One of the underreported (the Wall Street Journal did its part here) end-of-term decisions that the Supreme Court announced was its ruling in California Public Employees’ Retirement System v ANZ Securities, Inc.  The Court held that the law means what it says, neither more nor less.

The case revolved around whether Calpers could proceed with a 2011 complaint over securities the pension fund purchased from offerings in 2007 and 2008. The Securities Act of 1933 says that in “no event” shall an action be brought “more than three years after the security was bona fide offered to the public.”

But Calpers’ 2011 filing was too late; it was past that three-year limit (even if only by months relative to the 2008 offerings).  Not minding how special Calpers is (a legend in its own mind as my wife puts it), the Supreme Court held that

the three-year limit “admits of no exception” and “creates a fixed bar against future liability[.]”

Interestingly, the ruling was only by a 5-4 vote.  The liberal faction of the Court was just as self-important, or perhaps confused, as Calpers in disdaining the law: with their four votes they ignored, or were confused by, the meanings of “no event” and of “three years.”

The Supreme Court is Considering the Limits of Partisan Gerrymandering

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The case stems from a Wisconsin state districting case

where a three-judge lower court last year invalidated a redistricting plan enacted by the Republican-controlled Wisconsin legislature in 2011.

That court insisted that, following the 2010 census, the Republican State legislature redrew its legislative districts to favor Republicans and disfavor Democrats.

Election results since then have shown the redistricting had its intended effect, with the GOP winning a larger majority in the state assembly, even as the statewide tally of votes was nearly even between Republicans and Democrats, the lower court said.

This smacks entirely too much of disparate impact sewage.  The ruling would be legitimately reversed on that ground alone.  That one party won a collection of close-run elections proves nothing.  Close-run means no more than that the two parties were evenly matched.  Apparently, an even election is too partisan, not favoring Democrats sufficiently, to suit the court.

The Supremes and lower courts have long held, though, that

gerrymandering that discriminates against minority voters [is] unconstitutional….

There aren’t any minority voters, only American citizen voters, though. Not any more.  As a Chief Justice John Roberts said only a few years ago in Parents Involved in Community Schools v Seattle School District No.1, the way to end discrimination is to stop discriminating.  Mandating districts explicitly to benefit minorities is exactly that cynical discrimination.

Woodrow Wilson once said about segregation that blacks should be grateful for the protection it affords them.  Is that really what today’s Progressive-Liberals, including the Liberal Justices on the Supreme Court, want?  We should return to that despicable era of racial racist discrimination?

Regardless of any of the foregoing, the question is easily enough settled, if there’s enough collective courage to do so.  I’ve said it before, and I’ll say it again: draw equal-sized district squares, regardless of demographics, deviating from the square shape only at State borders and only along the side that is the border.

Foolish

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The Justice Department is clashing with career site Glassdoor Inc over the company’s refusal to identify users who posted anonymous employee reviews of a veterans health-care company under federal investigation.

That’s been fought over in civil courts, but this is a first for a potentially criminal matter.  The Federal government is the one making the demand this time because the Feds want witnesses for a grand jury investigation into Glassdoor.

Whatever the parameters of any possible criminal case involved here, there are some questions that need careful consideration.  Leave aside 1st Amendment questions regarding a right, especially but not necessarily limited to political discourse, to discourse anonymously.

Forcing a potential witness to come forward and testify in open court seems counterproductive.  How credible, indeed, how objectively accurate, would a witness be who’s forced to testify?  Might such a witness say what his government forcer wants him to say?  Might such a witness’ memory become faulty?  Might such a witness’ testimony, however well he tries for accuracy, be slanted by…fear of consequences, frustration at being forced, other factors, factors that wouldn’t be present with voluntary testimony?

How would a court tell whether impacts from these factors are large or small in a particular case?  How would a court even recognize the presence of these factors?  Given presence, how would a court control for that presence?