UPDATE: HERE IS THE AUDIO OF TODAY’S ARGUMENT

HERE IS THE TRANSCRIPT OF TODAY’S ARGUMENT

I am going to do something different today and put up a post for semi-live coverage – and discussion – of the DOMA oral arguments in the Supreme Court this morning. First, a brief intro, and then I will try to throw tidbits in here and there as I see it during and after the arguments.

The case at bar is styled United States v. Windsor, et al. In a nutshell, Edith Windsor was married to Thea Spyer, and their marriage was recognized under New York law. Ms. Spyer passed away in 2009 and Windsor was assessed $363,000.00 in inheritance taxes because the federal government, i.e. the IRS, did not recognize her marriage to Spyer in light of the Defense of Marriage Act, or DOMA. Litigation ensued and the 2nd Circuit, in an opinion written by Chief Judge Dennis Jacobs, struck down DOMA as unconstitutional and ruled in favor of Edith Windsor. Other significant cases in Circuit Courts of Appeal hang in the lurch of abeyance awaiting the Supreme Court decision in Windsor, including Golinski v. Office of Personnel Management, Gill v. OPM and Pedersen v. Office of Personnel Management.

As an aside, here is a fantastic look at the restaurant where Edith Windsor and Thea Spyer met nearly 50 years ago.

Arguing the case will be Solicitor General Donald B. Verrilli again for the United States, Paul Clement for the Bi-Partisan Legal Advisory Group (BLAG) on putative behalf of Congress, because the Obama Administration ceased defending DOMA on the grounds it was discriminatory and unconstitutional, and Robbie Kaplan for Edith Windsor. Clement and Verrilli are well known by now, but for some background on Robbie Kaplan, who is making her first appearance before the Supremes, here is a very nice article. Also arguing will be Harvard Law Professor Vicki Jackson who was “invited” by SCOTUS to argue on the standing and jurisdiction issue, specifically to argue that there is no standing and/or jurisdiction, because the Obama Administration quit defending and BLAG will argue in favor of standing and jurisdiction.

Here is a brief synopsis of the argument order and timing put together by Ed Whelan at National Review Note: I include Whelan here only for the schedule info, I do not necessarily agree with his framing of the issues).

Okay, that is it for now, we shall see how this goes!

Live Updates:

10:39 am It appears oral arguments are underway after two decisions in other cases were announced.

10:51 am RT @SCOTUSblog: #doma jurisdiction arg continues with no clear indication of whether majority believes #scotus has the power to decide case.

11:00 am By the way, the excellent SCOTUSBlog won a peabody award for its coverage of the Supreme Court.

11:05 am @reuters wire: 7:56:34 AM RTRS – U.S. SUPREME COURT CONSERVATIVE JUSTICES SAY TROUBLED BY OBAMA REFUSAL TO DEFEND MARRIAGE LAW

11:15 am Wall Street Journal is reporting: Chief Justice John Roberts told attrorney Sri Srinivasan, the principal deputy solicitor general, that the government’s actions were “unprecedented.” To agree with a lower court ruling finding DOMA unconstitutional but yet seeking the Supreme Court to weigh in while it enforces the law is “has never been done before,” he said.

11:20 am Is anybody reading this, or is this a waste?

11:32 am @SCOTUSblog Kennedy asks two questions doubting #doma validity but nothing decisive and Chief Justice and Kagan have yet to speak.

11:40 am Wall Street Journal (Evan Perez) Chief Justice Roberts repeatedly expressed irritation at the Obama administration, telling Ms. Jackson, the court-appointed lawyer, and without specifically mentioning the administration, that perhaps the government should have the “courage” to execute the law based on the constitutionality rather instead of shifting the responsibility to the Supreme Court to make a decision.

11:45 am Wall Street Journal (Evan Perez) Paul Clement, attorney for lawmakers defending the law, argued that the went to the very heart of Congress’s prerogatives. Passing laws and having them defended was the “single most important” function of Congress, he argued.

11:52 am Wall Street Journal (Evan Perez) Justice Scalia and Mr. Srinivasan parried on whether Congress should have any expectation that laws it passes should be defended by the Justice Department. Mr. Srinivasan said he wouldn’t give an “algorithm” that explained when Justice lawyers would or wouldn’t defend a statute, but ceded to Justice Scalia’s suggestion that Congress has no “assurance” that when it passes a law it will be defended. That’s not what the OLC opinion guiding the Justice Department’s actions in these cases says, Justice Scalia interjected.

11:56 am Associated Press (Brent Kendall) One of the last questions on the standing issue came from Justice Samuel Alito, who asked whether the House could step in to defend DOMA without the Senate’s participation, given that it takes both chambers to pass a law.

11:59 am Bloomberg News During initial arguments today on the 1996 Defense of Marriage Act, Justice Anthony Kennedy suggested that a federal law that doesn’t recognize gay marriages that are legal in some states can create conflicts.
“You are at real risk of running in conflict” with the “essence” of state powers, Kennedy said. Still, he also said there was “quite a bit” to the argument by backers of the law that the federal government at times needs to use its own definition of marriage, such as in income tax cases.
Justice Ruth Bader Ginsburg said that when a marriage under state law isn’t recognized by the federal government, “One might well ask, what kind of marriage is this?”

12:05 pm @SCOTUSblog Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

12:07 pm The argument at the Court is well into the merits portion of the case now

12:09 pm Wall Street Journal (Brent Kendall) Justice Kennedy, however, jumped in with federalism concerns, questioning whether the federal government was intruding on the states’ territory. With there being so many different federal laws, the federal government is intertwined with citizens’ day-to-day lives, he said. Because of this, DOMA runs the risk of running into conflict with the states’ role in defining marriage, he said.

12:12 pm It is pretty clear to me, from a variety of sources I am tracking, that the Court has serious problems with DOMA on the merits. Clement is getting pounded with questions on discrimination, conflict with state laws and federalism concerns. Pretty clear that if standing is found, DOMA is going down.

12:15 pm Wall Street Journal (Brent Kendall) Justice Ginsburg again says the denial of federal benefits to same-sex couples pervades every area of life. DOMA, she said, diminished same-sex marriages to “skim-milk” marriages. Justice Elena Kagan (pictured) follows a short time later saying DOMA did things the federal government hadn’t done before, and she said the law raised red flags.

12:19 pm @reuters wire: U.S. SUPREME COURT CONCLUDES ORAL ARGUMENTS ON FEDERAL LAW RESTRICTING SAME-SEX BENEFITS

12:30 pm @AdamSerwer Con Justices contemptuous of Obama decision not to defend DOMA but still enforce law. Kennedy said “it gives you intellectual whiplash”

Okay, as I said earlier, if the Justices can get by the standing issue, it seems clear that DOMA is cooked. I think they will get by standing and enter a decision finding DOMA unconstitutional as to Section 3, which is the specific part of the law under attack in Windsor. That effectively guts all of DOMA.

That is it for the “Live Coverage” portion of the festivities today. It should be about an hour and a half until the audio and transcript are available. As soon as they are, I will add them as an update at the top of the post, and will then put this post on the top of the blog for most of the rest of the day for further discussion. It has been bot a fascinating and frustrating two days of critical oral argument; please continue to analyze and discuss!

Just about a month ago, in urging the Obama Administration to file a brief in favor of marriage equality in the Hollingsworth v. Perry Prop 8 case before the Supreme Court, I described the stakes:

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case.

It was true then, it is true now. To the everlasting credit of of President Obama, Solicitor General Verrilli and the Administration, they did indeed file a brief in support. It was a surprisingly strong brief with a clarion call for full equality based upon heightened scrutiny; yet is was conflicted with a final ask only for a restricted ruling limited in application to either just California or, at most, a handful of somewhat similarly situated states. In short, the ask in the Administration’s brief was not for equality for all, in all the states; just in some.

On the eve of one one of the seminal moments of Supreme Court history – it is easily arguable this is far more of a defining moment than the ACA Healthcare scuffle was – it is again incumbent on the Administration to give the justices the headroom to make a broad decision granting equality for all.

Even in the short time since the Obama Administration filed their brief, between February 28 and now, the mounting tide of public opinion and desire for full equality has grown substantially in multiple ways. Colorado, a state where the thought was once beyond contentious, passed full civil union equality and Governor Hickenlooper signed it into law. And a new comprehensive Washington Post/ABC News public poll has found that a full 58% of Americans now support the legality of gay nuptials, and a whopping 81% of adults between the ages of 18 and 29 so support.

The writing is on the wall, and the trend overwhelming. And it simply does not make sense for the Obama Administration to buck this tidal wave and argue only for equality in a handful of states, with equality for some, but far from for all. Barack Obama and Donald Verrilli laid every bit the foundation needed to argue for broad based full equality – in all states – in their brief.

It is time for Mr. Obama and Mr. Verrilli to step up and forcefully tell the Supreme Court that full equality is the right way to rule. The Court granted Solicitor General Verrilli time to express the Administration’s position in the oral argument Tuesday; he should use it in the name and cause of full broad based equality. It is a time for leadership; this is a moment for Mr. Obama and his attorney to display it.

By the same token, it is also time for the Supreme Court to do the same. So often it has been argued the “Court should not get out in front of popular opinion”. Bollocks, the Court should refuse to put themselves behind public opinion, and an ever strengthening one at that, by shamefully ducking the perfect opportunity to stand for that which the Constitution purports to stand, equal protection for all.

There are a myriad of legal arguments and discussions, and just about every commenter and expert in the field has been offering them up over the last week. I will leave that to another day, after the court has heard the oral arguments, we have our first inclination of what the justices are focused on, and the case is under advisement for decision.

For now, here are a couple of warms ups for Tuesday’s oral argument in Hollingsworth v. Perry/Prop 8 and Wednesday’s oral argument in United States v. Windsor/DOMA. First a nice little video “Viewer’s Guide to Gay Marriage Oral Arguments” with Supreme Court barrister extraordinaire, and SCOTUSBlog founder, Tom Goldstein. Here is a handy flow chart of all the different possibilities, and the why for each, of how the court may rule on both cases. It is really pretty neat and useful tool.

The briefing is long done now and the Justices understand the issues. But if the ACA/Healthcare cases taught us anything, it is that Justice Roberts is concerned about the legacy and esteem of the court. And Justice Kennedy has already shown how committed he is to fairness in social justice issues and willing to even go out on limbs ahead of controversial public opinion with his written opinions.

At this point, the most effective leverage is not repeated discussion of the minutiae of law, but rather the demonstration of the righteousness of full equality. History will prove fools of those who sanction continued bigotry against marital equality, and anything less than a broad based heightened scrutiny finding, for equality for all people, in all states, is a continuation of such unacceptable bigotry.

UPDATE: Professor Adam Winkler of UCLA has a piece out today that embodies my point in the post perfectly. Discussing the disastrous and ugly 1986 decision of the Supreme Court in Bowers v. Hardwick to uphold sodomy laws when times and opinion had already changed, and the profound regret felt by Anthony Kennedy’s predecessor, Lewis Powell, Professor Winkler writes:

Kennedy is clearly a justice who considers how his legacy will be shaped by his votes. In 1992, when the Supreme Court was asked to overturn Roe in a case called Planned Parenthood v. Casey, Justice Kennedy originally sided with the conservatives to reverse the controversial privacy decision. Like Justice Powell in Bowers, Justice Kennedy then changed his vote. He went to see Justice Harry Blackmun, the author of Roe, and explained that he was concerned about how history would judge Kennedy’s decision to end constitutional protections for women’s right to choose.

Like many people, Justice Kennedy may believe that the public tide against marriage discrimination is growing and that gay marriage is inevitable. History is not likely to be kind to those justices who vote to continue relegating LGBT people to second-class citizenship. As the swing justice ponders how to rule in the gay-marriage cases, Justice Powell’s well-known regret over Bowers, and the widespread recognition that Bowers was wrongly decided, will almost certainly weigh on his mind.

Adam’s article is worth a full read. And I agree with it completely.

Back in February, when the “White Paper” was first “leaked”, Marcy wrote a fantastic article entitled Article II or AUMF? “A High Level Official” (AKA John Brennan) Says CIA Can Murder You on the issues of Article II authority versus AUMF authority in relation to the Obama targeted killing program. First off, let me say that the the lack of recognition of the presence of both these these respective authorities in the targeted killing program, even among legal commentators I respect greatly, is one of, if not the, most discouraging aspects of the discussion being had. Sadly, the big filibuster by Sen. Rand Paul did not necessarily improve the understanding, and even the New York Times continues to propagate the misdirection and misinformation peddled by the Obama Administration.

I wish to discuss the interaction of the statutory law contained in 18 USC 1119, the “Foreign Murder statute”, with the greater Obama Administration Targeted Killing Program, and the White Paper foundation for it. Specifically I want to point out the circular and disingenuous way in which the White Paper tries to bootstrap itself, and the Administration, around criminal liability for murder in the case of a targeted US citizen such as Anwar Awlaki. Frankly, Marcy let fly with another must read post on 18 USC 1119 and the White Paper yesterday in the wake of the New York Times sop to the Administration, and it filets both the White Paper, and the NYT, open at the seams.

The most important principle to understand about the White Paper’s discussion of 18 USC 1119 is, as Marcy noted, that it is impertinent if the the law of war (formally the “Law of Armed Conflict” or “LOAC”) is truly in play. In short, if the Administration is using the AUMF – military force – in an active battle situation, there is no need for further discussion, whether Mr. Awlaki is a US citizen or not. That, of course is diametrically opposed to what the facts were at the action point with Awlaki, and that we now know.

The truth is the Administration used a civilian agency, the CIA, to kill a US citizen without judicial due process, far from the “hot battlefield” and that is why such a deliberate attempt was made in the White Paper to obfuscate the legal basis for their targeting and killing, and why such a seemingly inordinate time was spent in the White Paper on a traditional criminal law statute, 18 USC 1119.

The statutory language of 18 USC 1119 states:

(a) Definition. – In this section, “national of the United States” has the meaning stated in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)).
(b) Offense. – A person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113.
(c) Limitations on Prosecution. – (1) No prosecution may be instituted against any person under this section except upon the written approval of the Attorney General, the Deputy Attorney General, or an Assistant Attorney General, which function of approving prosecutions may not be delegated. No prosecution shall be approved if prosecution has been previously undertaken by a foreign country for the same conduct.
(2) No prosecution shall be approved under this section unless the Attorney General, in consultation with the Secretary of State, determines that the conduct took place in a country in which the person is no longer present, and the country lacks the ability to lawfully secure the person’s return. A determination by the Attorney General under this paragraph is not subject to judicial review.

Hard to look at the face of 18 USC 1119 and not see why it is so germane to the targeted killing discussion. But you need not take my word for it, this is why the previously somewhat arcane statute takes up five full pages, nearly a third of the discussion, in the White Paper. It is also, as Marcy pointed out in back in February, why Judge Colleen McMahon of the Southern District of New York, who unlike the commentariat, has seen the classified filings, went out of her way to focus on the intersection of the targeted killing program with 18 USC 1119 when she said in her January 2, 2013 opinion:

Assuming arguendo that in certain circumstances the Executive power extends to killing without trial a citizen who, while not actively engaged in armed combat against the United States, has engaged or is engaging in treasonous acts, it is still subject to any constraints legislated by Congress. One such constraint might be found in 18 U.S.C. § 1119, which is entitled “Foreign murder of United States nationals.” This law, passed in 1994, makes it a crime for a “national of the United States” to “kill or attempt to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country.” The statute contains no exemption for the President (who is, obviously, a national of the United States) or anyone acting at his direction. At least one commentator has suggested that the targeted killing of Al-Awlaki (assuming it was perpetrated by the Government) constituted a violation of the foreign murder statute. Philip Dore, Greenlighting American Citizens: Proceed with Caution, 72 La. L. Rev. 255 (2011).

And, as both Judge McMahon and Marcy noted, “Presidential authorization does not and cannot legitimize covert action that violates the constitution and laws of this nation.” Well, no it cannot. And that is also consistent with the “Take Care Clause” in Article II, Section 3 of the Constitution requiring a President to insure that all laws (read statutes) are “faithfully executed”. That means the President cannot simply abrogate or ignore the clear language or 18 USC 1119.

So, if the target, in this case Awlaki, was killed by a US civilian action in a foreign country and away from a, as Judge McMahon put it, “hot field of battle”, then the Administration has a problem. Houston, the Administration has a problem with 18 USC 1119.

Let’s see how strong their justification for avoidance on 1119 is as laid out in the White Paper. In a word, it is weak sauce indeed. The White Paper relied on two commingled ideas to get around 18 USC 1119, “public authority justification” and traditional criminal law enforcement justifications (for instance self defense and necessity) as embodied in domestic case precedent. So, are those justification issues bars to prosecution for the CIA drone operators and their superiors up the food chain? No.

The NYT article described the rationale of the OLC Awlaki Kill Memos, Marty Lederman and David Barron, as follows:

Now, Mr. Barron and Mr. Lederman were being asked whether President Obama’s counterterrorism team could take its own extraordinary step, notwithstanding potential obstacles like the overseas-murder statute. Enacted as part of a 1994 crime bill, it makes no exception on its face for national security threats. By contrast, the main statute banning murder in ordinary, domestic contexts is far more nuanced and covers only “unlawful” killings.

As they researched the rarely invoked overseas-murder statute, Mr. Barron and Mr. Lederman discovered a 1997 district court decision involving a woman who was charged with killing her child in Japan. A judge ruled that the terse overseas-killing law must be interpreted as incorporating the exceptions of its domestic-murder counterpart, writing, “Congress did not intend to criminalize justifiable or excusable killings.”

And by arguing that it is not unlawful “murder” when the government kills an enemy leader in war or national self-defense, Mr. Barron and Mr. Lederman concluded that the foreign-killing statute would not impede a strike. They had not resorted to the Bush-style theories they had once denounced of sweeping presidential war powers to disregard Congressionally imposed limitations. (emphasis added)

So, Lederman and Barron found justifications and then boot strapped those into their pre-desired result. First, let’s look at the “public authority justification” component. Again, that would have solid weight if it were a military strike, but the CIA stands in different shoes. Kevin Jon Heller (who wrote that first pesky 2010 blog post on 18 USC 1119 that caused Lederman and Barron such “uneasiness”), also weighed in yesterday on the nonsense pitched by Mazzetti, Savage and Shane in the NYT. Here is the key take from Professor Heller on the “public authority justification” claim:

The CIA is obviously not an “organized armed force, group, or unit” that is under the command of the US military; the CIA is, in its own words, “an independent US Government agency responsible for providing national security intelligence to senior US policymakers.” Nor are the CIA’s drone strikes controlled by the military (which would not satisfy Art. 43 anyway). The interesting provision is paragraph 3. The CIA may be an “armed law enforcement agency,” but it still does not satisfy Art. 43(3): first, it has not been “incorporated” into the US’s armed forces, because incorporation requires national legislation subjecting the agency to military control (see the ICRC Commentary to AP I, para. 1682); and second, the US has not informed al-Qaeda and its associated forces that it has been so incorporated — indeed, as widely noted, the US has never even formally acknowledged that the CIA drone program exists.

In an IAC, then, CIA drone operators would not have the right under IHL to kill anyone. And it is difficult to see how the situation could be any different in a NIAC. Arguing that the rules of IAC apply analogically in NIAC, as the US often does – it borrows the concept of an al-Qaeda “associated force,” for example, from the IAC concept of co-belligerency — is no help, for all the reasons just mentioned. So the US would have to argue that the category of privileged combatants in NIAC is somehow actually wider in NIAC than in IAC, an idea for which there is no precedent in state practice and little if any support in conventional international law. (An excellent Australian scholar, Ian Henderson, has argued that a state can authorize anyone it wants to use lethal force in a NIAC. I don’t find his argument persuasive, particularly in the context of a transnational NIAC where a state is using force on the territory of many other states, but interested readers should check out his article.)

This is a critical conclusion. If a CIA drone operator does not possess the combatant’s privilege in the US’s “NIAC” with al-Qaeda and its associated forces, the US cannot plausibly argue that — to quote another paragraph in the White Paper (p. 15) — killing someone like al-Awlaki “would constitute a lawful killing under the public authority doctrine” because it was “conducted in a manner consistent with the fundamental law of war principles governing the use of force in a non-international armed conflict.” Such a killing would not be “consistent with the “the fundamental law of war principles governing the use of force,” because the absence of combatant’s privilege means that a CIA drone operator has no right under IHL to use any force at all. As a result, a CIA drone operator prosecuted for violating the foreign-murder statute would not be entitled to a public-authority defense – at least insofar as the US purports to base his or her public authority from IHL’s recognition of the right of privileged combatants to kill.

Now that is a fairly long segment I borrowed from Kevin, but there is much more at his superb post, please do go digest all of it. Suffice it to say, for the reasons stated, the “public authority justification” just does not hold up as described in the White Paper and the New York Times paean to Lederman, Barron and the Administration.

But what about that linchpin “1997 district court decision involving a woman who was charged with killing her child in Japan” they found that permitted “excusable killings” that I bolded above? The official name and cite of the case is United States v. White, 51 F.Supp 2d 1008 (EDCA 1997), and it is mentioned a grand total of twice, as a secondary back up citation, in the White Paper. But the NYT pitched the spiel that discovery of this little known, impossible to find online, non-binding case from the Eastern District of California makes everything copacetic. Maybe the NYT did not read the case, as they did not mention or cite its name in their article, but I have read US v. White, and it does nothing of the sort claimed by the NYT and the Administration.

In fact, if anything, White stands for the fact that 18 USC is constitutional on its face, there are no Due Process denials occasioned by the statute, and that it properly encompasses the traditional federal homicide statutes contained in 18 USC 1111, 1112, and 1113 respectively. If anything, White supports the proposition that the Administration has a big problem with 18 USC 1119. As evidence, I am attaching a pdf copy of the US v. White decision so that one and all, who may not have ready access to dusty old reporters in a law library, may see it in all its glory (actually quite lack thereof). [UPDATE: Kevin Jon Heller just sent this link for White online. It is easier to read than my scan.]

I would like to make one last point, and it is a pretty important one. All these justifications, defenses, excuses – whatever term the Administration bandies about (and they have used all three of those) – as used in the White Paper and NYT article, even the “public authority justification”, are what are known in criminal law as “affirmative defenses”. But affirmative defenses are not a bar to prosecution or criminal culpability in the least; they have to be pled by the criminal defendant once charged, and then established to the jury at trial. And ask any practicing criminal defense attorney, juries are pretty skeptical of such affirmative defenses generally.

Now, in closing, I think we ought to be honest about the nature of this discussion. Fact is, the Obama Administration is never going to actually charge their own people, it is not about that; it is about the root legality of the activity. And the problem is, at root, there is no way to say that CIA performed extrajudicial execution of American citizens away from the hot battlefield is legal in the face of 18 USC 1119. The Obama Administration is trying to baffle the public with legalistic bull, and is trying to hide their illegal pea under a moving set of inapplicable and inapposite legal shells. But, in the end, it does simply does not hold water.

After the flurry of fast analysis on the fly, getting a post up for discussion and the crucible of discussion here and on Twitter – and a bit of sleep – I have some further thoughts on the amicus brief filed late yesterday by the Obama Administration in Hollingsworth v. Perry.

My ultimate conclusions on what the Obama amicus means and portends has not changed much, but there are several things that should be said both to explain my criticism and give a little more credit to the Administration where due. First an analogy explaining my criticism of the Obama brief.

Imagine if, when Brown v. Board of Education was being considered, the Eisenhower Administration had instructed it’s Assistant Attorney General and OLC chief, J. Lee Rankin, to amicus brief that only Kansas and a handful of other similarly situated states, but not the rest of the country where the bigotry of segregation was at its most prevalent worst, should be granted desegregation. How would history have held Mr. Eisenhower and Mr. Rankin? That is, of course, not what happened in Brown; the Eisenhower Administration filed an amicus brief demanding equality and desegregation for all citizens, in all states.

Messrs. Obama, Holder and Verrilli, however, fell short of such a demand for equality for all in the civil rights moment, the Brown v. Board, of their time. Let the record reflect they did have the courage to join the game, which is in and of itself a commendable thing, just that they did not muster the full courage to play to win for all Americans, regardless of their particular state of domicile – and especially not for those in the states with the most sexual orientation bigotry and discrimination.

In this regard, I think our friend at Daily Kos, Adam Bonin, summarized the duality of the Obama amicus quite well:

To be sure, the brief argues all the right things about why laws targeting gays should be subject to heightened scrutiny, and that none of the proffered justifications for treating their relationships differently have merit (“Reference to tradition, no matter how long established, cannot by itself justify a discriminatory law under equal protection principles.”) Still, for those who were seeking a full-throated endorsement of 50-state marriage equality, you will find this brief lacking.

That said, from the day this suit was filed in May 2009, I have suggested that this limited path is the Court would ultimately take. And it can be dangerous to advance positions which the Court might reject, especially when they are not necessary for the resolution of the instant case. But, still, there was an opportunity for boldness here, and the Obama administration did not take it. As a great man once said:

Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.

Adam’s point about the fear of overreaching when the Perry litigation was originally filed is a good one. As I think he has evolved to having less fear in that regard over time, the explanation for such a shift comes from the changed nature of the ground underneath the larger issue. It is a testament to the genius of the Perry litigation in its inception, and even more so to the way Judge Vaughn Walker framed an actual trial that laid bare, with both evidence and the inability for haters to provide credible evidence, the hollow immorality and rank bigotry of the Proponents of Proposition 8.

The space created by Judge Walker’s amazing decision created the headroom for a cascade of events in DOMA cases, equality legislation in states and popular votes in other states, all in favor of marriage equality. This past election cycle provided the once unthinkable result of marriage equality going four for four in popular votes.

The ground has so seismically changed, the momentum of social conscience so strong, that we simply occupy a different place now than existed at the start of the Perry litigation. And that is the ground the Supreme Court will have to recognize when they hear oral arguments on March 26 in Hollingsworth v. Perry and March 27 in the DOMA cases.

Regardless of the messy way in which it did so, the Supreme Court (and its Chief Justice, John Roberts) proved in the ACA cases that they are aware of, and attend to, the legacy of the court. It is crystal clear that marriage equality, and equality for sexual orientation, is happening. The only question at this point is how complete, how fast.

This is the great civil rights measure of this period in American history; I find it hard to believe Justice Anthony Kennedy, who has already displayed his social conscience in Lawrence v. Texas, wants to be on the wrong side of history. In August of 2010, on the release of Vaughn Walker’s historic trial court opinion, I quoted Linda Greenhouse in laying out why I thought Justice Kennedy would swing the majority in favor of marriage equality when Perry made its way to the court for review:

As the inestimable Linda Greenhouse noted recently, although the Roberts Court is increasingly dogmatically conservative, and Kagan will move it further in that direction, the overarching influence of Justice Anthony Kennedy is changing and, in some ways, declining. However, there is one irreducible characteristic of Justice Kennedy that still seems to hold true; she wrote of Kennedy:

…he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

The money quotes of the future consideration of the certain appeal and certiorari to come on Judge Walker’s decision today in Perry v. Schwarzenegger are:

Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.”
……
In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.

So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him to see your case on the fair (or not-fair, depending) side of the line.

I believe that Linda is spot on the money with her analysis of what drives Anthony Kennedy in his jurisprudence. And this is exactly what his longtime friend, and Supreme Court advocate extraordinaire, Ted Olson will play on and argue when the day arrives.

Well, that day is upon us now. Honestly, with the tide of momentum headed in the direction it is, I am less and less convinced John Roberts wants to be on the wrong side of civil rights history either.

But giving the Justices the moral and sociological headroom to grant equality to all the citizens, in all the states, especially those in the discriminatory swaths of the country, is key to the cause. The Perry Plaintiffs have done their part. Yesterday, the Obama Administration had the opportunity to go the distance, and they pulled up slightly short.

I feared Obama might come up so short their brief could be counterproductive; that did not occur. The song could have been, and should have been, stronger; but credit where due, they hit the necessary notes. It is filed and done, and it is overall an important and powerful thing. Perry Plaintiffs’ attorney Ted Boutrous put it well:

Their arguments from start to finish would apply to other states,” he said. “The argument of the day (against same-sex marriage) is the responsible pro-creation argument. The United States takes it apart piece by piece. It’s those same types of arguments that are used in other jurisdictions to justify the exclusion of gays and lesbians from marriage.

And as Marcia Coyle observed in the National Law Journal BLT article the Boutrous quote above came from:

And the heightened scrutiny analysis, he added, is “exceedingly important,” not just in the marriage context but in other contexts where gay men and women face discrimination.

Marcia is exactly right (and her report well worth a read), and between the Perry Plaintiffs’ merits brief and the Obama Administration amicus brief, there is a foundation from which to argue to all the Justices, but especially Anthony Kennedy and John Roberts, for equality for all across the board.

Mr. Obama and Mr. Holder can help immeasurably in the coming days leading up to oral argument and decision by the Justices by using their bully pulpit to advocate for full heightened scrutiny equal protection for all, in all states. The cause endures and their duty maintains. And we, as citizens can give them the support and positive feedback to help them do so. Let the final push for full equality begin.

The news was broken, right around 2:00 pm EST by NBC’s Pete Williams, that the Obama Administration would indeed file a brief in support of marriage equality in Hollingsworth v. Perry. Here was the original tweet by NBC’s Williams:

Obama Justice Dept to file Supreme Court amicus brief today opposing Prop 8 in Calif and expressing support for same-sex marriage to resume.

Here was Williams’ followup story at NBCNews.com. The inherent problem with the original report was that it tended to indicate the Obama Administration was briefing only on the restricted Romer v. Evans posture heinously crafted by Judge Stephen Reinhardt in the 9th Circuit.

So, we were left hanging wondering exactly how the Obama Administration really briefed the issue, was it a limited Romer brief, or one for full marriage equality and heightened scrutiny under the equal protection and due process clauses that would give all citizens, nationwide, equality as I argued for earlier this week?

We now have the answer, and the brief, and here it is the brief in all its not quite glory:

The Obama Administration has, shockingly (okay, I do not mean that in the least), tried to nuance its way and split babies. Typical cowardly bunk by Mr. Obama. Lyle Denniston at SCOTUSBlog depicted it thusly:

The historic document, though, could give the Court a way to advance gay marriage rights, without going the full step — now being advocated by two California couples who have been challenging Proposition 8 since 2009 — of declaring that marriage should be open to all same-sex couples as a constitutional requirement.

Administration sources said that President Obama was involved directly in the government’s choice of whether to enter the case at all, and then in fashioning the argument that it should make. Having previously endorsed the general idea that same-sex individuals should be allowed to marry the person they love, the President was said to have felt an obligation to have his government take part in the fundamental test of marital rights that is posed by the Proposition 8 case. The President could take the opportunity to speak to the nation on the marriage question soon.

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married.

Honestly, I think Mr. Denniston is being kind. President Obama’s position bears the mark of a full throated coward. Clearly, when Mr. Obama said this to ABC News, he was blowing smoke up the posterior of the American public:

…obviously, my personal view, which is that I think that same-sex couples should have the same rights and be treated like everybody else. And that’s something I feel very strongly about and my administration is acting on wherever we can.

That statement would say that Obama actually supports full equal protection for ALL Americans. But the position staked out today in the Administration’s brief filed by his Solicitor General puts the lie to Obama’s rhetoric.

Mr. Obama has consistently lied about his dedication to civil liberties, privacy and the Fourth Amendment, I guess it should not be shocking that he would lie about his dedication to civil rights for all, across all the states, in the form of marriage equality. And that is exactly what he has done. And as Denniston’s article makes clear, this decision bore the active participation and decision making of Obama personally. The cowardice is his to bear personally. Thanks for the fish Mr. Obama.

That is the biggest of the Hollingsworth v. Perry briefing news today, but certainly not the entirety of it. Also filed today, among others, was a brief by a group of 14 states led by Massachusetts and New York and an interesting brief by NFL players Chris Kluwe and Brendon Ayanbadejo. The brief by the 14 states is helpful in the way it portrays marriage in the states, both straight and gay, and in that it, on page four, adopts the position of Olson, Boies and the Prop 8 Plaintiffs that the Supreme Court must find for full heightened scrutiny protection for sexual orientation under the Equal Protection and Due Process Clauses. The Kluwe and Ayanbadejo brief, frankly, is not particularly helpful in that regard as it only discussed the limited Romer based finding that would leave marriage equality up to the states.

The same group of American businesses who weighed in on the DOMA cases also filed a brief today in Hollingsworth v. Perry. In a more negative development, former Solicitor Walter Dellinger also filed an amicus brief today that is literally loathsome and dangerous in it’s argument against even giving standing for appeal to the Supreme Court. Dellinger embarrassed himself, but so too did Barack Obama. Must be something in the water of centrist Democratic thought.

So, there you have it. It was a rather important, if not quite as fulfilling as should have been, day in the life of the Hollingsworth v. Perry litigation. I guess credit should be given to Mr. Obama even for weighing in at all, and undoubtedly most media and pundits will slather him with praise for just that. Somehow, I cannot. The full measure of greatness was there for the taking, and Barack Obama, Eric Holder and Donald Verrilli, Jr. whiffed at the full mark of greatness. They will be remembered for their support, and their failure to truly step up will likely dissipate with time; but let it be said here and now.

In spite of the cowardly and restrictive actions by the “liberal President Obama” the cause of true heightened scrutiny protection for ALL Americans endures and lives on. Just not with the support of the President of the United States of America. that “leader” took the cheap “states rights” cowardly way out. Let us hope Anthony M. Kennedy and the majority of the Supreme Court have higher morals and muster as men.

[As always on these Prop 8 posts, the absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Leaving aside the heinous 3/5 compromise set forth by James Wilson and Roger Sherman at the founding Philadelphia Constitutional Convention, American history is marked by significant moments of dedication to civil rights for its citizens. Far from perfect, it has been a struggle and evolution. As Ralph Waldo Emerson noted:

Nothing great was ever achieved without enthusiasm.

Which is certainly true, from the Founding Fathers, to Lincoln and the Emancipation Proclamation, to the 19th Amendment protecting the right of women to vote, to the Civil Rights Act of 1964, moments of enthusiasm, sweat, toil and, eventually, greatness mark the struggle for equality for all in the United States.

And here we are on the cusp on the next defining moment in the quest for equality for all in the US. It is not for origin, not for skin color, not for gender, but for something every bit as root fundamental, sexual identity and preference. Marriage equality, yes, but more than that, equality for all as human beings before the law and governmental function.

For all the talk of the DOMA cases, the real linchpin for the last measure of equality remains the broad mandate achievable only through Hollingsworth v. Perry, the Proposition 8 case. The case for full equality in Hollingsworth has been made beautifully, and strongly, in the Respondent’s Brief penned by Ted Olson, David Boies, Theodore Boutrous and Jeremy Goldman.

But there is still a missing voice in the discussion, that of the United States government. The government has the voice, and spoke it loudly in the DOMA litigation, first in a policy declaration letter to Congress, then in lower court briefing and finally in Supreme Court briefing. Mr. Obama’s initial policy declaration noted that we must “suspicious of classifications based on sexual orientation” and concluded:

…that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.

Indeed that is true, but it only takes the equality movement so far, it still leaves room and ability for bias against sexual orientation by individual states, most notably on the front of marriage equality, but potentially a host of other invidious modalities as well.

That is not good enough. It is time for the government, by and through the Obama Administration, to take the final step in cementing full equality for all citizens, not just as to the federal government, but as to the states as well. The government needs to file an amicus brief supporting full equality in Hollingsworth v. Perry.

Three men are in the crucible – President Barack Obama, Attorney General Eric Holder and Solicitor General Donald Verrilli, Jr. History will remember these men either way, but they have the opportunity to be remembered among the giants in civil rights history. It is a defining moment for their once and future legacy.

What a major moment in history this is, and will be, if the if the Obama Administration Solicitor General files a brief in support of full heightened scrutiny based protection for sexual orientation.

It brings to mind the scene from “Lincoln” where President Lincoln says

“Now, Now, Now”

and forces the 13th amendment through because “Now” was the moment to eradicate slavery in one fell swoop and waiting posed unconscionable risks and further damning inequality.

Such is exactly the time and place now as to the last recognized measure of fundamental equality, sexual orientation. The Perry Plaintiffs’ team has argued well in their brief for the broad principles of due process and equal protection heightened scrutiny that would resolve these issues “Now”. All the stars are aligning. Prominent Republicans have filed an amicus brief. So too a broad swath of leading American businesses. Openly gay Congress members are calling for it.

Now is the time to seize the moment and eradicate discrimination across the board against gay men and women. This is the moment for enthusiasm, and President Obama, Attorney General Holder and Solicitor General Verrilli have a historic opportunity to help make it happen. This is the moment, and they need to step up. Great men take such great steps.

The time is “Now, Now, Now”.

File the amicus brief for full equality in Hollingsworth v. Perry gentlemen.

Something funny happened in the Eastern District of North Carolina today. Out of the blue in an extremely significant case, and without particular notice to interested observers, much less the public, the criminal case against former Blackwater executives for weapons trafficking, and a myriad of other weapons violations, ended. Poof! Gone with an undeserved and inexplicable sweetheart misdemeanor plea.

From local Raleigh outlet WRAL:

A federal weapons case against the defense contractor formerly known as Blackwater Worldwide ended Thursday with misdemeanor pleas by two former executives, who were fined and placed on probation.

The case stems in part from a raid conducted by federal agents at the company’s Moyock headquarters in 2008 that seized 22 weapons, including 17 AK-47s. An indictment alleged that the company used the Camden County Sheriff’s Office to pose as the purchaser of dozens of automatic weapons.

The indictment also alleged that Blackwater purchased 227 short barrels and installed them on long rifles without registering them and that company officials presented the king of Jordan with five guns as gifts in hopes of landing a lucrative overseas contract and then falsified federal documents once they realized they were unable to account for the weapons.

Gary Jackson and William Matthews, the former president and executive vice president of the company and both Navy Seals, pleaded guilty Thursday to one count each of failure to keep records on firearms. They were sentenced to four months of house arrest, three years on probation and fined $5,000.

The original indictment was fifteen counts, count em 15 counts, most all serious felonies with significant punishment in the offing. Now granted, a few counts were pared off after a motion to dismiss by a court order dated February 4, 2013, but significant and substantive counts remained viable against Blackwater executives Jackson and Matthews.

But, instead of taking them to trial, or even extracting a reasonable plea that did justice for the public, the DOJ collaborated with the defense and walked into court without notice today, filed a new information containing a single misdemeanor charge and proceeded to sentence them on the spot to a hand slap.

Here is how the official DOJ Press Release described it:

United States Attorney Thomas G. Walker announced that in federal court today GARY JACKSON and WILLIAM WHEELER MATTHEWS, JR. pled guilty before United States District Judge Louise W. Flanagan, to one count each of failing to make and maintain records related to firearms in violation of Title 18, United States Code, Sections 922(m) and 923(g)(1)(A).

Additionally, Judge Flanagan sentenced JACKSON and MATTHEWS to 3 years probation, 4 months house arrest with stipulations, and fined them $5,000.00.

According to the Criminal Information filed on February 14, 2013, JACKSON and MATTHEWS, between 2005 and 2007, were employees of a corporate entity formerly known as Blackwater which was a licensed federal firearms manufacturer and dealer, and whose responsibilities for a certain period of time included direct or indirect supervisory authority over employees whose duties included the making and maintenance of records required by federal law. (Emphasis added)

Oh yeah, there was one other mention of note in the release:

The corporate entity formerly known as Blackwater has entered into a Deferred Prosecution Agreement with the government in which it has agreed to extensive ongoing compliance programs and the payment of approximately 7 million dollars in fines.

How nice. The Deferred Prosecution Agreement was actually entered into and noticed back in August of last year. It was easy to see the DPA coming, and as much as the US Government relies on Blackwater/Xe/Academi for their security adventures, it was predictable they would be given a DPA (and, hey, DPAs provide lucrative paydays to former DOJ friends who get set up in cushy monitor jobs).

The DPA was easy to see coming, today’s sweetheart plea was not. No, it happened basically as a covert op on the public and interested legal community. Did you notice the bolded date in the DOJ press release? DOJ states the plea was entered on February 14, 2013. What is interesting is that it was not placed on the official court docket until today – at the same time Judge Louise Flanagan, a conservative Bush appointee, was accepting the plea and sentencing Jackson and Matthews, thus ending the case. All designed so the public would not know and could not have any input. Diametrically contrary to the fundamental precepts of the American justice system.

How little of a wrist slap is the sentence? I’ve had common DWI clients sentenced to more. Compare and contrast to the punishment the DOJ sought to impose on Aaron Swartz.

The sentence is now done and entered, but what about the process? It was a stunning affront to justice and the public right to know. I have complained relentlessly about the collusion between the DOJ and another Bush era criminal, former Office of Special counsel Chief Scott Bloch. But at least in Bloch there was minimal notice given to the public and we knew what was coming, in spite of inexplicable collusion between the DOJ and the criminal defendant. Not so in the case of these Blackwater executives, Jackson, Matthews, et al.

Even in Bloch, in spite of complete collusion on the part of the DOJ, the court set sentencing for nearly three months after the entry of the plea. Not so with Judge Flanagan and the Blackwater boys. How unusual is it that a Federal court sentences criminal defendants immediately in high profile important cases with important implications like this? VERY UNUSUAL.

In fact it is simply stunning, all the more so considering that the parties and the court hid the fact the plea was entered from the public and the court docket system in the period between the entrance of plea on February 14 and the plea acceptance and immediate sentencing today.

To give you an idea of how out of the ordinary such a sentencing on the spot is, there are directly applicable provisions in the Federal Rules of Criminal Procedure that must be specifically obviated on the record to even attempt it. Rule 32(c) provides:

(c) Presentence Investigation.

(1) Required Investigation.

(A) In General. The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless:

(i) 18 U.S.C. §3593 (c) or another statute requires otherwise; or

(ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. §3553, and the court explains its finding on the record.

(B) Restitution. If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution.

18 USC 3593 concerns death penalty cases, so the ONLY way Jackson and Matthews could have been sentenced today is for the court to have made a specific finding, based upon information on and in the record, and then stated the specific reasons for the decision, and evidence supporting it, all on the record.

Did Judge Flanagan do that? Well, we do not know because there is no sentencing minute entry on the docket as there normally is. It just isn’t there. What’s more, we cannot know if there was a stipulation to hide the plea entry and immediate sentencing plans in the plea agreement (docket number 364), because the plea agreement is SEALED.

All ability of the public to know this was coming, and to discern what really happened, has been secreted from the public. Secret justice (or, more properly, injustice).

How and why did all this occur? Undoubtedly because of the highly classified and incestuous relationship between Blackwater and the US Government, and the resulting ability of Blackwater to literally blackmail and extort concessions through graymail threats (See here for a short history of graymail).

So, through secrecy, classification, graymail and direct collusion with the DOJ, Blackwater, and its executive henchmen, win and the American public lose yet again. I have been practicing criminal law for 25 years and I am absolutely offended by what occurred in Judge Louise Flanagan’s courtroom today. Both she and the Obama Department of Justice should be made to answer for it.

[UPDATE: It appears the plea agreement itself is not completely sealed, it is just kept “unavailable” from the public docket. Upon information and belief, it can be viewed if you personally go to the clerk’s office for the Eastern District of North Carolina and ask to see it. The other items described in the post as missing from the docket entirely remain so missing.]

President Obama once again asked for immigration reform in last night’s State of the Union address:

… Our economy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants. And right now, leaders from the business, labor, law enforcement, and faith communities all agree that the time has come to pass comprehensive immigration reform.
Real reform means strong border security, and we can build on the progress my Administration has already made – putting more boots on the southern border than at any time in our history, and reducing illegal crossings to their lowest levels in 40 years.
Real reform means establishing a responsible pathway to earned citizenship – a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally.
And real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.
In other words, we know what needs to be done. As we speak, bipartisan groups in both chambers are working diligently to draft a bill, and I applaud their efforts. Now let’s get this done. Send me a comprehensive immigration reform bill in the next few months, and I will sign it right away. …

Compare last night’s words to those on immigration reform in last year’s State of the Union address:

… I believe as strongly as ever that we should take on illegal immigration. That’s why my administration has put more boots on the border than ever before. That’s why there are fewer illegal crossings than when I took office. The opponents of action are out of excuses. We should be working on comprehensive immigration reform right now.

But if election-year politics keeps Congress from acting on a comprehensive plan, let’s at least agree to stop expelling responsible young people who want to staff our labs, start new businesses, defend this country. Send me a law that gives them the chance to earn their citizenship. I will sign it right away. …

Right away then, right away now. Don’t hold your breath.

The truth is no real traction on immigration reform has been made over the last year at federal level, even after an election. The far right, however, has been steadily working for the last three years at state level toward the denial of U.S. citizenship to undocumented immigrants, using Arizona SB 1070 as its initial stake in the sand. In theory, SB 1070 is the baseline model legislation from which this nationwide effort start. The long-term implications are far more complicated than they appear.

Here’s a quasi-hypothetical question, a thought experiment about U.S. citizenship by birth. Let’s assume these conditions in this case:

•  Antecedant immigrates from China to Hawaii in 1898, marries a Hawaiian citizen, acquires Hawaiian property–during the same year in which the sovereign nation of Hawaii is annexed without the consent of Hawaiians.

•  Antecedant has multiple children; the youngest is born in early 1930s while Hawaii is still a territory.

•  Youngest child goes to school on mainland while Hawaii is still a territory. Meets and marries a U.S. citizen only months after Hawaii became a state.

•  They have several children while living on the mainland after marriage.

If the far right manages to undermine United States v. Wong Kim Ark–the 1898 decision under which U.S. citizenship by birth was acknowledged–which of the people in the above scenario remain U.S. citizens?

If citizenship by birth can be denied, can they also be retroactively denied both citizenship as well as the right to own property? A number of states enacted Alien Land Laws during the early 1900s barring non-citizens from owning property. Though all but one state’s laws have been repealed, under Florida law non-citizens may yet be barred from ownership. Assuming the anti-immigration cohort undermines U.S. citizenship by birth, were the children of Chinese and Hawaiian citizens naturalized? Or can their naturalization be contested, along with rights to property ownership in Florida? Would states consider revisiting Alien Land Laws to discourage citizenship if Florida’s law remains in place?

By now you’re thinking this is all quite an unlikely set of scenarios. Let me challenge you one more time: what if all the above described my great-grandfather, grandfather, father, my natural siblings, and me? Should I take my family’s citizenship for granted?

Though President Clinton and Congress apologized in 1993 for the overthrow of the sovereign Hawaiian nation, there’s been little acknowledgment of the persistent abuse of Asian Americans rights, and Hawaiian sovereignty has been swept under the rug. If far right anti-immigrant bigots have their way at undermining the 14th Amendment and United States v. Wong Kim Ark, it’s going to take a lot more than an apology to make this mess right.

Unless it is established upfront that anyone currently recognized as a U.S. citizen will continue to maintain that status, the White House should not ask for just any immigration reform bill–especially given the GOP-heavy House of Representatives now in office.

This little exercise hasn’t begun to scratch the surface of the potential challenge. My grandfather appears to have immigrated from Canada as an infant in the early 1900s; his arrival in the states may not have been fully documented. Was he ever a truly naturalized citizen? Is my mother a U.S. citizen?

And what about your own family–when and how did they arrive in the U.S.? Will the zealous overreach of immigration reform question your own citizenship?

What’s your status? Where are your papers?

Let’s hope the threat to the citizenship status of white, English-speaking conservatives like my mother who’ve lived their entire lives in the U.S. gives xenophobic anti-immigration proponents pause.

What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
….
It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
….
The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered:

In short, the Constitution’s appointments structure — the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent — makes clear that the Framers used “the Recess” to refer only to the recess between sessions.

and:

In short, we hold that “the Recess” is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.

But the court did not stop there, although it well could have. Instead, Sentelle’s opinion proceeds to also gut the foundation of Obama’s recess appointments by determining the meaning of the word “happen” in the Recess Appointment Clause contained in Article II, Section 2, Clause 3 of the Constitution. That consideration is described by this discussion:

Although our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board’s order, as we suggested above, we also agree that the petitioner is correct in its understanding of the meaning of the word “happen” in the Recess Appointments Clause. The Clause permits only the filling up of “Vacancies that may happen during the Recess of the Senate.” U.S. Const. art. II, § 2, cl. 3. Our decision on this issue depends on the meaning of the constitutional language “that may happen during the Recess.” The company contends that “happen” means “arise” or “begin” or “come into being.” The Board, on the other hand, contends that the President may fill up any vacancies that “happen to exist” during “the Recess.” It is our firm conviction that the appointments did not occur during “the Recess.” We proceed now to determine whether the appointments are also invalid as the vacancies did not “happen” during “the Recess.”

As you might guess from the direction so far, the court determined that “Our understanding of the plain meaning of the Recess Appointments Clause as requiring that a qualifying vacancy must have come to pass or arisen “during the Recess””. Sentelle then, in pages 23-27 of the opinion, went through and crucified the four variations of their theme the Administration argued, including a battering ot the OLC opinion on recess appointments dated January 6, 2012 and hand crafted and signed by Virginia Seitz. Tough day for both Seitz and Obama.

The court also went on to say that maintaining the consistent with the Article I Legislative Branch prerogative of the “Power of the Purse”:

The Framers placed the power of the purse in the Congress in large part because the British experience taught that the appropriations power was a tool with which the legislature could resist “the overgrown prerogatives of the other branches of government.” The Federalist No. 58, supra, at 357. The 1863 Act constitutes precisely that: resistance to executive aggrandizement.

While this was interpretive of the ability to pay recess appointments and what that portended to the Framer’s intent, it is also a pretty clear shot at maintaining the inherent separation of power in the assignment of the Purse Power to Congress and not the executive, something lost recently on the Platinum Coin crowd.

So, the net result is that Canning’s NLRB decision against him is void. Further, it would appear that any other decision of the NLRB taken by the Board depending on the three Obama recess appointments is also void. That is a major problem because it leaves the NLRB with only one single validly appointed member at this point, and will affect literally hundreds of opinions rendered.

The effect of today’s decision, however, most certainly is not limited to the NLRB. In fact, the effect on the NLRB may, in the long run, be the least damaging result. That is because, of course, on the same day Barack Obama made the three NLRB recess appointments, he also recess appointed Richard Cordray to lead the CFPB.

The reason I took up so many column inches laying out the nature and strength of the court’s opinion is because it is the deepest judicial review of this issue ever, by far, is devastating in nature and, honestly, is pretty strong and compelling. And it without any question will be the same decision as will be applied to Richard Cordray’s status the second a case and controversy hits it challenging Cordray’s status. And one will.

The challenge to Cordray, however, is not nearly so clean an issue as the sudden facial validity of a finite number of NLRB opinions. The CFPB was a brand new agency, and one of the reasons getting a permanent director was so critical was that many of the powers and, particularly rule making powers, did not vest to the entity without one. But other powers had already transferred without Cordray being installed.

There is a CRS memorandum detailing much of the problem in scattered vesting of CFPB power:

Not all of the CFPB’s powers become effective at the same time. Some of the Bureau’s authorities took effect when the Dodd-Frank Act was signed into law on July 21, 2010. However, most of the Bureau’s authorities will go into effect on the “designated transfer date”—a date six to 18 months after enactment, as determined by the Secretary of the Treasury (Secretary). Currently, the designated transfer date is July 21, 2011.

In addition to the effective dates set out in the CFP Act, the authority to exercise the Bureau’s powers may be affected by the appointment of a CFPB Director. The Bureau is designed to be headed by a single Director, who is to be nominated by the President and subject to the advice and consent of the Senate. If a Director is appointed before the designated transfer date, he will be able to exercise all of the powers provided to the Bureau pursuant to the CFP Act. However, a Bureau Director has not yet been appointed. Until a CFPB Director is appointed, the CFP Act provides the Secretary the authority to exercise some, but not all of the Bureau’s authorities. Although not beyond debate, the CFP Act appears to provide the Secretary the authority to exercise the Bureau’s transferred powers, but not the authority to exercise the Bureau’s newly established powers.

As I noted back at the time the recess appointments were made in January of 2012, the inconsistent, and sometimes incongruent, vesting of power in CFPB was a particular issue in relation to the debatable nature of Cordray’s recess appointment.

In fairness, I thought the recess appointments would minimally stand up under the logic expressed by the 11th Circuit in Evans v. Stephens. Well, Sentelle and the DC Circuit took that argument apart with every bit the vigor it did Seitz’s OLC Opinion argument. As I said then:

Normally a confirmed appointee and a recess appointee have the same legal authority and powers but, to my knowledge, there is no other situation in which substantive power for an agency flows only through its specific “confirmed” director.

Well, today’s decision in Canning is going to put all those questions into play when a CFPB case hits the DC Circuit. Oh, and one is on the way – State National Bank Of Big Spring et al v. Geithner et al, 12-cv-01032 (complaint here). This is a big truckload of trouble heading dead on for the Obama Administration.

Here is the next glaring trouble spot from today’s Canning decision. Just yesterday, Obama formally nominated Richard Cordray for regular confirmation as head of the CFPB. It was a nice little ceremony carried on television and everything. And then Harry Reid, Carl Levin, Pat Leahy and the old school Senate Democrats went out and killed every possible ability for Obama to actually get Cordray through the Senate Republican filibuster gauntlet when they refused to meaningfully reform the filibuster (see: here and here).

Actions have consequences, and so do crustacean like inaction and fear as exhibited by the Old School Dems and the White House. You think the Senate No Men led by Mitch McConnell were obstructive of the CFPB and NLRB before? Just wait until now when they smell the agencies’ blood in the water.

Surely the Obama Administration will correct all this with a request for en banc consideration by the DC Circuit or an appeal to the Supreme Court, right? Well, no and yes. The DC Circuit effectively does not do en banc considerations in the first place, and even if they wanted to (they won’t) they may not even have enough active judges to pull it off (note that DC Circuit is down yet another active judge since that article was written).

So, there will be no en banc to pin hopes for. There will almost certainly, however, be an appeal to the Supreme Court. And there being at least an argument that there is now a circuit split between the DC Circuit’s Canning decision and the 11th Circuit’s Evans decision, there may even be a good chance that SCOTUS grants cert.

That is where the good news may end though. I expect the appeal to be on several issues and, as John Ellwood at Volokh Conspiracy notes, the Canning decision is MUCH broader than expected and, really, will preclude almost all recess appointment power as has been used in the last century.

It is possible that SCOTUS could craft a middle ground not so restrictive of the Presidential recess appointment power, but it is fairly easy to see them still disallowing Obama’s January 2012 recess appointments of the NLRB members and Cordray. In fact, I would be shocked if they did otherwise at this point.

As Lyle Denniston at SCOTUSBlog notes:

The main Circuit Court opinion was written by Chief Judge David B. Sentelle, and it was a strong affirmation of the “original meaning” mode of interpreting the Constitution — that is, analyzing a constitutional issue in terms of what the words of the document meant at the time they were first written. The Sentelle opinion was filled with recollections of early government history, and of what the earliest generations believed they had put into the presidential appointments clause of the document.

It was certainly that, and such framing is designed to play straight into the heart of the conservative bloc love of “original intent” in Constitutionalism. They may walk back Canning a little, but on the critical Obama appointments, it is hard to see them not affirming.

This is a very ugly and humbling day for the Obama Administration.

During Barack Obama’s second inaugural address yesterday, many on the left were actually mentioning tears of joy, especially when it came to this passage quoted by AP via Yahoo:

“We must make the hard choices to reduce the cost of health care and the size of our deficit. But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future,” he said. “The commitments we make to each other — through Medicare, and Medicaid, and Social Security — these things do not sap our initiative; they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great.”

Despite Obama’s slap-down here of Romney and Ryan’s demonization of “takers” during the presidential campaign, Obama is contradicting his own record here. It is clear that he has been itching to cut Social Security and Medicare as one of his signature moves. Here is Matt Bai during the pitched battle of the fiscal cliff last month:

None of this is theoretical or subjective. It’s spelled out clearly in the confidential offers that the two sides exchanged at the time and that I obtained while writing about the negotiations last spring.

In his opening bid, after the rough framework of a grand bargain was reached, Mr. Boehner told the White House he wanted to cut $450 billion from Medicare and Medicaid in the next decade alone, with more cuts to follow. He also proposed raising the retirement age for Social Security and changing the formula to make benefits less generous.

Mr. Obama wasn’t willing to go quite that far. But in his counteroffer a few days later, he agreed to squeeze $250 billion from Medicare in the next 10 years, with $800 billion more in the decade after that. He was willing to cut $110 billion more from Medicaid in the short term. And while Mr. Obama rejected raising the retirement age, he did acquiesce to changing the Social Security formula so that benefits would grow at a slower rate.

Also last month, Yves Smith and Bruce Bartlett appeared on Bill Moyers’ show to discuss this point:

YVES SMITH: Obama wants to cut entitlements. He said this in a famous dinner with George Will. I think it was even before he was inaugurated. He went and had dinner with a group–

BRUCE BARTLETT: That’s right, a group of conservatives.

YVES SMITH: He met a group of conservatives. And he made it very clear at this dinner that as soon as the economy was stabilized that he wanted to cut Social Security, well “reform.” But that’s just code for “cut” Social Security and Medicare. Obama really believes that this will be a signature accomplishment of his. That he will go down in history positively for.

BRUCE BARTLETT: That’s right. If you go back to 2011 and look at the deal Obama put on the table, he was willing to make vast, vast cuts in entitlement programs. And the Republicans walked away from it, which only goes to prove that they don’t have the courage of their own convictions. But Yves point is exactly correct. Obama really is maybe to the right of Dwight Eisenhower and fiscally. And it’s really at the root of so many of our economy’s problems, because he didn’t ask for a big enough stimulus. Has let the housing sector, basically, fester for four years without doing anything about it. He’s really, you know, focused more on cutting the deficit than people imagine.

Once the tears of joy get wiped away over the beautiful words Obama delivered, it would be best to stand guard against his actions, which almost certainly will be the exact opposite. To believe this is true, all we have to do is look at the great signature moves from Obama’s first inauguration. As Marcy pointed out yesterday, one of the first documents Obama signed the first time around was his executive order “closing” Guantanamo. This time, Gitmo is still open with no prospect of closing and one of Obama’s first signatures was to nominate his drone czar as Director of the CIA.

Another of Obama’s first signatures last time was on this executive order that purported to ensure “lawful interrogations”. As I wrote back in 2010, much was made of Obama using the order to end the practice of the CIA using secret sites for detention of prisoners, but there was no parallel language ending the practice for JSOC. In my post yesterday, I noted how the JSOC’s role in training those responsible for Afghanistan’s detention program have failed to eliminate torture and ensure lawful interrogations. Not mentioned in yesterday’s post is the fact that the UN report cited also notes that Afghanistan also maintains secret detention sites, just as Obama outlawed for CIA but allowed to continue for JSOC.

I see no reason to get choked up over yesterday’s rhetoric from Obama. Instead, I’m going to keep a close eye on what he does.