Category Archives: Courts

A Thought on Gerrymandering Congressional Districts

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This is triggered by a summary of a case that’s before the Supreme Court in the just-started Court session.

Alabama redistricting: Democrats and black lawmakers contend that Republican leaders in Alabama drew a new legislative map that illegally packed black voters into too few voting districts to limit minority political power. Republicans say they complied with the law by keeping the same number of districts in which black voters could elect candidates of their choice.

This question should be irrelevant today.

Instead, we should have square districts, except where the district abuts a state border (perhaps, also, where a small part of a district would be on the other side of a natural barrier, like a river, with no nearby path across/around the barrier). Political districts should be drawn without regard to the population encompassed.

There should be no special treatment for one group of Americans over another; this accomplishes nothing beyond harming the groups denied the same special treatment. There should be no differential treatment under law for one group of Americans compared to any other; this accomplishes nothing beyond harming the groups denied that same differential treatment. The 14th Amendment makes this clear, as if it’s not morally so, already.

Especially, there should be no special political district shapes carved to accommodate, or to disaccommodate, one group or another. We each have one vote, of equal value to each other vote, regardless of our skin color or ethnicity. We are, after all, each equal to another before God and law. We are, after all, each of us Americans; in this this political, legal, religious context, there are no relevant distinctions among us. Full stop.

As a Supreme Court Justice already has recognized, the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.

Interstate Commerce and Chicken Eggs

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A federal judge has dismissed a lawsuit challenging a California law that requires all eggs sold in the Golden State to come from hens housed in roomier cages.

State Attorneys General from Missouri, Iowa, Nebraska, Kentucky, Oklahoma, and Alabama had sued to block implementation of the law on the grounds that it unconstitutionally interfered with interstate commerce under the Commerce Clause.

They said farmers would have to spend hundreds of millions of dollars overhauling farms to ensure they would have access to the California market….

US District Judge Kimberly Mueller of the Eastern District of California disagreed.

The only citizens who may have to spend $120 million to comply with California’s legislation are the egg farmers who intend to participate in California’s egg market[.]

Intend to participate. Not required to participate. That raises a question in my pea brain: which will cost those farmers more, modifying their enclosures or not selling their eggs in California?

In Which another Federal Judge Gets it Right

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Recall Halbig v Sebelius, the case wherein plaintiffs objected to subsidies being paid to Obamacare plan purchasers when the those plans were bought through ObamaMart, the Federally run health plan exchange, instead of through State-run health plan exchanges. The text of the Obamacare law allows the latter and bars the former. The DC Circuit agreed with plaintiffs and struck down the subsidies. (The current status of that ruling is that it’s been stayed pending review of Halbig by the DC Circuit sitting en banc.)

US District Judge Ronald White, of the Eastern District of Oklahoma, has ruled on a similar case that came up in his district, a part of the 10th Circuit. I won’t go into the specifics of Pruitt v Burwell, White’s case; the cases are very similar, and the point I want to make here is slightly different, anyway. I will note that plaintiff Pruitt is Oklahoma Attorney General Scott Pruitt, and defendant Burwell is Sylvia Mathews Burwell, HHS Secretary (sitting in for Kathleen Sebelius under an arcane Federal rule that allows such things). I will note further that Treasury Secretary Jacob Lew also was a defendant in this case, and leave things there.

White ruled for the plaintiff, which means he also held that the subsidies paid to Obamacare plan purchasers who bought them through ObamaMart are illegal.

Here’s where things get interesting.

In his conclusion, White wrote [citations omitted, emphasis mine]

Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[appellants’ approach would effectively destroy the statute….” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance….”

And

Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still…. This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

And

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. … “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’“

Finally, quoting from a ruling by his own 10th Circuit appellate court,

In reviewing statutes, courts do not assume the language is imprecise…. Rather, we assume that in drafting legislation, Congress says what it means.

And that’s the deal. A law says what Congress—the People’s directly elected representatives—says it says. A judge, or any appellate court at any level of our judicial hierarchy, can only apply that law to the case before him. Most especially, he cannot rewrite the law or “creatively interpret” it into something more agreeable to his personal philosophy.

Oh, and just to saucer and blow the thing, White formally ruled pretty clearly:

The court holds that the IRS Rule [allowing those subsidies] is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 USC §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 USC §706(2)(C), or otherwise is an invalid implementation of the ACA….

Judge White’s ruling can be seen here.

 

h/t Jonathan Keim of the National Review Online

In Which a Judge Gets It Right

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…but is forced to rule wrongly.

The SEIU sued University of Pittsburgh Medical Center, alleging “unfair” labor practices in that, claimed the union, UPMC management interfered with employees’ right to organize. In connection with that suit, the NLRB issued three subpoenas demanding “highly confidential and proprietary information” be released from UPMC to the union.

Federal District Judge Arthur Schwab found the NLRB’s subpoenas, among other things, over broad and unfocused, and so illegitimate. He also found the subpoenas fundamentally irrelevant to the underlying case (which itself would have rendered the subpoenas inappropriate). He went further. In noting that the NLRB itself made no serious effort to argue the relevance of its subpoenas, he wrote [emphasis added]

The Court does not see how these requests have any legitimate relationship or relevance to the underlying alleged unfair labor practices; instead, the requests seek highly confidential and proprietary information…and, the requests seek information that a union would not be entitled to receive as part of a normal organization effort. Indeed, the scope and nature of the requests, coupled with the NLRB’s efforts to obtain said documents for, and on behalf of, the SEIU, arguably moves the NLRB from its investigatory function and enforcer of federal labor law, to serving as the litigation arm of the Union, and a co-participant in the ongoing organization effort of the Union.

But he was forced to the wrong outcome and to uphold the subpoenas; although he stayed his upholding pending appeal.

However, the practical effect of case law as to enforcement of subpoenas of federal government agencies is that this Court is constrained to essentially “rubber stamp” the enforcement of the Subpoenas at hand.

The Third Circuit, the appellate court for Schwab’s district, can overrule Schwab and strike down the subpoenas. The appellate level is the normal place where Federal agency subpoenas get struck. Schwab also, though, has given the Third an out.

If the practical effect of this legal predicament is to be altered, it is not the District Court’s role to do so, but the role of the appellate court. The Court is at a loss of how to adequately address the above issues of whether the matter under investigation serves legitimate purposes, whether the inquiry is relevant to that purpose, and not unduly broad or burdensome, while still conforming to the extremely narrow and limited nature of the proceedings at hand. If the United States Court of Appeals for the Third Circuit finds that the District Court has the authority to conduct a meaningful and/or thorough review of the three (3) Subpoena[s] at issue here, the Court is prepared to do so.

Schwab’s opinion can be read here.

The Problem with a Law

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In 2012, the Labor Department threatened to seize the blueberry crops of a couple of Oregon farmers until they settled a Labor complaint and signed away their right to appeal the settlement. With crops at risk of rotting away, the farmers settled, agreeing to pay Labor more than $240,000. The alleged “crimes” were Labor’s claims the farmers had violated minimum wage requirements under the 1938 Fair Labor Standards Act. Labor used the threat of seizure of these perishable crops to extort the settlement.

After signing and getting their crops back, the two farmers sued.

The courts were unimpressed with Labor’s behavior.

By using the threat of rotting crops as coercion, the feds trampled due process. In January, Magistrate Judge Thomas Coffin ruled Labor had prevented defendants from having “their day in court.”

In February, Labor asked US District Judge Michael McShane to review Judge Coffin’s decision. Judge McShane agreed with the original ruling, noting the growers had challenged “unique circumstances” involving “a highly perishable product at peak harvest.”

Yew betcha. Hence the extortionate nature of Labor’s behavior. “Nice crop you got there….”

Congressman Kurt Schrader (D, OR) has been equally unimpressed with Labor’s behavior. He’s now writing a bill that would “exempt certain perishable agricultural commodities” from this sort of action.

Schrader doesn’t go far enough, though. The law should be rescinded altogether. The Federal government has demonstrated conclusively that it can’t be trusted with it.