ACA at SCOTUS: Some Thoughts On The Mandate

As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more

A Primer On Why Schuelke Report Of DOJ Misconduct Is Important

Yesterday morning, the District of Columbia Court of Appeals entered its per curiam order denying a DOJ prosecutor’s motion for stay of the release of the Schuelke Report on prosecutorial misconduct in the Ted Stevens criminal case. As a result, barring unforeseen Supreme Court intervention, later this morning the full 500 page plus Schuelke Report will be released by Judge Emmet Sullivan of the DC District Court. What follows is a recap of the events leading up to this momentous occasion, as well as an explanation of why it is so important.

The existence of rampant prosecutorial misconduct in the Department of Justice case against Alaska Senator Ted Stevens was crystal clear before the jury convicted him in late October 2008 on seven counts of false statements in relation to an ethics investigation of gifts he received while in office. The trial judge, Emmet Sullivan of the District of Columbia District Court, could well have dismissed the case before it ever went to the jury for verdict but, as federal courts of all varieties are wont to do, he gave the DOJ the benefit of the doubt. It, as is all too often the case these days, proved to be a bridge too far for the ethically challenged DOJ.

Within a week of the ill be gotten verdict obtained by the DOJ in the criminal case, Ted Stevens had lost his reelection bid, after serving in the Senate for 40 years (the longest term in history). Before Stevens was sentenced, an FBI agent by the name of Chad Joy filed a whistleblower affidavit alleging even deeper and additional prosecutorial misconduct, and, based on the totality of the misconduct, Judge Emmet Sullivan, on April 7, 2009, upon request by newly sworn in Attorney General Eric Holder, dismissed with prejudice all charges and convictions against Ted Stevens.

But Emmet Sullivan did not stop with mere dismissal, he set out to leave a mark for the outrageous unethical conduct that had stained his courtroom and the prosecution of a sitting United States Senator:

Judge Emmet G. Sullivan, speaking in a slow and deliberate manner that failed to conceal his anger, said that in 25 years on the bench, he had “never seen mishandling and misconduct like what I have seen” by the Justice Department prosecutors who tried the Stevens case.

Judge Sullivan’s lacerating 14-minute speech, focusing on disclosures that prosecutors had improperly withheld evidence in the case, virtually guaranteed reverberations beyond the morning’s dismissal of the verdict that helped end Mr. Stevens’s Senate career.

The judge, who was named to the Federal District Court here by President Bill Clinton, delivered a broad warning about what he said was a “troubling tendency” he had observed among prosecutors to stretch the boundaries of ethics restrictions and conceal evidence to win cases. He named Henry F. Schuelke 3rd, a prominent Washington lawyer, to investigate six career Justice Department prosecutors, including the chief and deputy chief of the Public Integrity Section, an elite unit charged with dealing with official corruption, to see if they should face criminal charges.

On August 9, 2010, Ted Stevens died in a small plane crash in Alaska, never having seen the results of Henry Schuelke’s special prosecutor investigation into the misconduct during the Stevens criminal case. And lo, all these years later, we finally sit on the cusp of seeing the full Schuelke report in all its gory glory.

On November 21, 2011, Judge Sullivan issued a scathing order in relation to his receipt of Henry Schuelke’s full report, and how it would be reviewed and scheduled for release to the public. Actually, scathing is a bit of an understatement. The order makes clear not only is Schuelke’s report far beyond damning, but Judge Sullivan’s level of anger at the misconduct of the DOJ has Read more

Judge Cebull’s Smart Response To His Incredibly Stupid Act

I was going to delve deeper into the Cebull insult of Obama case after Friday’s events, but I now have something else I need to get to, so this is a shorter take. As you will recall, the intertoobz blew up at the end of last week, starting late Wednesday, with the story of Judge Richard Cebull, Chief Judge of Montana’s US District Court, and his email distributed slur on Barack Obama. The incident was first reported by a local paper, the Great Falls Tribune, but quickly hit the national wires.

I am not going to reprint the email, but it is fairly disgusting and very inappropriate (you can see it in the original form here). Numerous outraged individuals and organizations immediately called for Cebull’s resignation. David Dayen has a rundown on some of the loudest, as well as of Cebull’s “explanation/apology”, which has not been accepted to well by those calling for Cebull’s head. And, while Cebull’s statement is indeed less than exculpating, it is pretty much all he could say under the circumstances. Unlike Rush Limbaugh, at least Cebull had the guts to own up to the full weight of his act, even if concurrently inferring “heck I thought it was private”.

You can quibble about whether the “joke” was directly racist, or only indirectly racist in overtone, and I can see both sides of that argument; however, there is no denying that it was in unconscionably bad taste and completely inappropriate for a federal judge to be trafficking in. That’s a given. I am, at this point, far more interested in Cebull’s response which, all things considered, I find pretty crafty.

Cebull immediately admitted his full involvement, did so publicly to the press, and took the affirmative step of immediately filing his own formal judicial complaint – against himself – over the matter, and asked for an inquiry by the judicial council of the 9th Circuit. He also immediately issued a formal written apology to President Obama:

Dear Mr. President:

I sincerely and profusely apologize to you and your family for the email I forwarded. I accept full responsibility; I have no one to blame but myself.

I can assure you that such action on my part will never happen again. I have requested that the Judicial Council of the Ninth Circuit review this matter.

Honestly, I don’t know what else I can do. Please forgive me and, again, my most sincere apology.

Richard F. Cebull

It is brief and to the point and, frankly, there is not much more he can do to erase the stain he left. Which is where it gets interesting. As you can see by clicking on the link to Cebull’s self initiated complaint (there are others that will be later joined, but his was immediately self filed, that will count large), it is submitted to the Chief Judge of the Ninth Circuit, Alex Kozinski. Not only Read more

US Vows No Change of Course in Afghanistan Despite 17% of NATO Deaths in 2012 From Fratricide

"There is absolutely no reason to change course when we're making the kind of progress we're making" -- Pentagon spokesman George Little, February 27, 2012

Displaying a remarkable inability to process the meaning of ongoing events, both White House spokesman Jay Carney and Pentagon spokesman George Little ventured dangerously close to “Baghdad Bob” territory on Monday, declaring that there is no reason to change the strategy or timetable for withdrawal in Afghanistan despite violence levels that have been on a steady rise since the US diverted its attention from Afghanistan to Iraq in 2003 and a rising toll of NATO forces being killed by Afghan forces.

The first question in Monday’s White House press briefing went right to the heart of the crisis that is ongoing in Afghanistan:

But I’m wondering how you explain to the average American who has seen this war go on for 10 years and is ready for troops to come home — how do explain it when the people that we’re training turn their guns on us, or U.S. officers in a secure Afghan Interior building are shot dead?  How do you explain why it’s working?

After Jay Carney responded with a very long “stay the course” explanation of how we must remove any possibility of al Qaeda re-emerging and that we must make conditions appropriate for handing off security to the Afghans, there was this follow-up:

Q    So you just sort of recounted the case there of how the President redefined the mission and how it’s important to stick with it, to stay the course.  But I’m wondering what you do about the attitudes of the American people who, in the case — more than one case in this last week — they say the people that we are going to war with, in some cases, are killing us.  Why should we still support this war?  How do you make that case?  And do you worry that it’s going to erode — the American public support will continue to erode in an election year?

MR. CARNEY:  Well, the incidents that you refer to are tragic and horrific and indefensible, there’s no question.  But it is important to remember that 95 to 97 percent of the missions the U.S. forces embark on in Afghanistan, they do so with their Afghan partners.  We’re talking about thousands and thousands of operations that proceed successfully with Afghan partners without anything like this happening.

These are isolated incidents — which does not, of course, mean they are not terrible — and are being investigated by both the Afghan government and ISAF.  But the overall importance of defeating al Qaeda remains and that is why we need to see — to continue the focus on that; to continue the process of, in the implementation of the President’s objectives, transferring security lead over to the Afghans so that American troops can come home.

It’s important to remember the President has already, through his strategy, laid out a process by which American troops will come home as we turn over security responsibility, security lead to Afghan forces.  And as we do that, we will be unrelenting in our pursuit of al Qaeda and unrelenting in our efforts to remove leaders of al Qaeda from the battlefield.

That’s just stunning. Carney insists that “These are isolated incidents” and yet, if we look at the numbers from this year, they are horrific. From AP:

Of 52 U.S. and NATO troops killed this year in Afghanistan, nine were apparently killed by Afghan forces or impersonators. Read more

Obama’s Malign Neglect of Federal Judiciary Redux

Right about this time last exactly one week ago, in relation to predictions of Ruth Bader Ginsburg’s retirement, I was describing the derelict judicial policy regarding nominations and confirmations that has characterized the White House of Barack Obama since he took office:

One of the other hallmarks of Obama’s Presidency is also, save for his two Supreme nominees Sotomayor and Kagan, dereliction of duty and attention to judicial policy and nominee confirmations. The state of rot and decay ongoing in the liberal federal judiciary is shocking, and Obama literally has abandoned the cause.

The all too predictable response to any such suggestion from the blindered Obama apologybots was “but but but Republican obstruction”. However said predictable refrain from Obamabots and party hacks belies the obvious fact that Republican obstruction has nothing to do with the lack of attention to nominations by Obama. As I said many times, here in June of 2011:

…it is hard for an administration to get a confirmation if it does not make nominations. Take federal judges for instance, for most of the past two years there have been around a hundred vacancies on the Circuit and District courts; Mr. Obama has rarely had nominees for more than half of them. This is simply federal administrative incompetence, and it takes a heavy toll in the hallways and dockets of justice.

Friday Joan Biskupic, in her first major piece at her new perch as head legal editor for Reuters, laid out a scorching case against the feckless and derelict policy by Obama on nominations by focusing on the most important Circuit Court of Appeal, the DC Circuit:

Obama’s failure to put anyone on the 11-judge D.C. Circuit, where three vacancies now exist, reflects both rising partisanship and Obama’s early priorities.
….
“That would leave the second most important court in the land without the kind of balance he might have achieved,” Gerhardt added.

Of the eight active judges on the D.C. Circuit, five are appointees of Republican presidents, three of Democratic presidents. Although the court has 11 members, it routinely hears cases in three-judge panels, assigned randomly to cases, as do other federal appeals courts throughout the country.
….
Two of the three openings on the D.C. Circuit have existed since Obama took office. Obama nominated Caitlin Halligan, a former New York state solicitor general who is now general counsel for the Manhattan District Attorney’s office, in September 2010.

The DC Circuit is the most important circuit court because it hears the appeals on all the most important cases emanating from the seat of our federal government. If it involves Executive Read more

Jake Tapper Flummoxes Jay Carney On White House Press Policy Hypocrisy

We take broadside shots at the press fairly regularly, both directly and as a vehicle for explaining ills and issues surrounding the government and, at least in my case, law. And there have been plenty of said shots aimed at the White House press over the years (stenographers!) and, pretty much, well earned. But fair is fair, and when there is good work done, it should be pointed out every now and then too. Today is a day for that.

At today’s White House press briefing, Jake Tapper of ABC News bored straight into WH Press Secretary Jay Carney, and it was a thing of beauty. The briefing opened with Carney evincing praise for the two journalists who died last night covering the Syrian popular uprising and resultant government crackdown and oppression, Marie Colvin and Rémi Ochlik as well as the New York Times’ recently deceased, Anthony Shadid. There is little doubt but that Carney, and the White House, have genuine sadness over the deaths. But Carney, on behalf of the White House, was taking it further and using them as shaded vehicle for political posturing and Tapper flat out called him on it. The exchange transcript, from Jake and ABC News:

TAPPER: The White House keeps praising these journalists who are — who’ve been killed –

CARNEY: I don’t know about “keep” — I think –

TAPPER: You’ve done it, Vice President Biden did it in a statement. How does that square with the fact that this administration has been so aggressively trying to stop aggressive journalism in the United States by using the Espionage Act to take whistleblowers to court?
You’re — currently I think that you’ve invoked it the sixth time, and before the Obama administration, it had only been used three times in history. You’re — this is the sixth time you’re suing a CIA officer for allegedly providing information in 2009 about CIA torture. Certainly that’s something that’s in the public interest of the United States. The administration is taking this person to court. There just seems to be disconnect here. You want aggressive journalism abroad; you just don’t want it in the United States.

CARNEY: Well, I would hesitate to speak to any particular case, for obvious reasons, and I would refer you to the Department of Justice for more on that.
I think we absolutely honor and praise the bravery of reporters who are placing themselves in extremely dangerous situations in order to bring a story of oppression and brutality to the world. I think that is commendable, and it’s certainly worth noting by us. And as somebody who knew both Anthony and Marie, I particularly appreciate what they did to bring that story to the American people.
I — as for other cases, again, without addressing any specific case, I think that there are issues here that involve highly sensitive classified information, and I think that, you know, those are — divulging or to — divulging that kind Read more

Elena Kagan Votes With Alito and Thomas To Undermine Miranda

When Elena Kagan was nominated, there were very few of us voicing strenuous objection, one of the primary reasons I did was her complete lack of experience in the adversarial system, especially with her total lack of knowledge and interest in criminal process issues, which would be critical in the face of the Obama DOJ’s determination to further gut Miranda.

The feared Kagan chickens have come home to roost. The Supreme Court just announced its decision in Howes v. Fields, and the decision is a significant further erosion of the critical Constitutional protections embodied in Miranda. The ruling specifically holds that police are not automatically required to tell prisoners of their legal right to remain silent and have an attorney present when being questioned in prison about another crime.

Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Stephen Breyer dissented. Noting that Fields was only incarcerated for disorderly conduct in the first place, Ginsburg stated:

For the reasons stated, I would hold that the “incommunicado interrogation [of Fields] in a police-dominated atmosphere,” id., at 445, without informing him of his rights, dishonored the Fifth Amendment privilege Miranda was designed to safeguard.

Notice who did NOT side with her fellow “liberal bloc” Justices to honor and protect Miranda? Elena Kagan. No, Kagan instead sided completely with Clarence Thomas, Samuel Alito and the rest of the conservative bloc.

No democratic appointee to Supreme Court should ever vote to further erode Miranda, and this case did exactly that in a fundamental way. But Barack Obama gave us the authoritarian Elena Kagan who, predictably, did just that. As a prediction: you will be seeing a lot more of Elena Kagan voting with Alito, Scalia and Thomas on crucial law and order/criminal process, not to mention evidentiary, issues. Get used to it.

Oh, and as a reminder, Obama may soon enough have the opportunity to further shove the ideological spectrum of the Supreme Court substantially to the right, just as he did when he replaced John Paul Stevens with Kagan. If Obama replaces the liberal stalwart Ruth Bader Ginsburg with another mushy authoritarian and/or corporatist centrist, like he did in replacing Stevens, liberals will regret it for decades.

Judicial policy matters.

[updated slightly to reflect authoritarian as a descriptor for Kagan, which, as EW points out, is more germane to this discussion on Howes]

The SCOTUS Merrygoround: Is Ginsburg Shuffle Coming?

The UPI has an article up with the startling headline “Ruth Bader Ginsburg stepping down in 2015”. The article, which is really more of a pondering question, is bylined today by Michael Kirkland and paints the scenario of a Ruth Bader Ginsburg retirement in 2015 so that Obama has sufficient time left in his second term to appoint and confirm a successor.

Although referenced rather obliquely in his article, Kirkland’s basis is premised entirely on the thoughts and predictions of SCOTUS, AND SCOTUSblog, longtime pro Tom Goldstein in a SCOTUSblog post he did last Tuesday, February 14th. Goldstein may be only one voice thinking out loud, but he carries the bona fides to warrant serious consideration here.

Goldstein points to the confluence of Ginsburg’s age, health, and personal career tracking with that of Justice Louis Brandeis. And the thought that Ginsburg will want to see that her replacement is chosen by a Democratic President. Goldstein’s thought process, originally laid out in the comprehensive February 14th entry at SCOTUSblog, is worth reading. Assuming Obama is reelected, which is still a pretty decent bet at this point (certainly capable of changing though), it is hard to find fault with Goldstein’s logic; in fact, it is rather compelling. I also agree with Tom that none of the current conservative bloc, including swing man Tony Kennedy, are going anywhere anytime soon.

Where I do differ from Goldstein, however, is in his prediction for what would transpire upon the theorized Ginsburg tactical retirement:

Assuming that President Obama is re-elected and that Justice Ginsburg does retire at some point in the next Administration, who will be the next nominee? One thing is certain: it will be a woman. It is inconceivable that a Democratic administration with any reasonable choice would cause the gender balance of the Supreme Court to revert to seven men and two women. Relatedly, appointing three women in a row to the Court is excellent politics.

President Obama will also have a strong desire to pick an ethnically or racially diverse nominee. It would be disappointing for the nation’s first African-American President to make two white appointments, leaving the Court with seven white members. A more diverse Court is a better legacy. Given that the President already appointed the first Latina Justice, most likely is an African-American or Asian-American nominee. That said, I think race and ethnicity are plus factors, rather than an imperative like gender.

I am not sure I buy Goldstein’s certainty of yet another female Supreme Court nominee from Barack Obama. I am just not convinced Obama appoints a third woman in a row, color or not. It sure makes it easier that it would be to fill a “female seat”, Ginsburg’s, I guess, and Obama clearly wanted to see three women justices on the court. But he crossed said threshold, and knowing one of them may not be there so long into the future likely played into the strength of his desire to appoint a second woman after Sonia Sotomayor. Such is quite a different thing from having an abiding determination to insure there are always three women on the Supreme bench.

Further, it really restricts the pool of potential nominees and plays into a plethora of counter Read more

Conferring Immunity from Justice, Barack Obama Becomes “The Great Vaccinator”

Ronald Reagan was The Great Communicator. Lyndon Johnson’s anti-poverty efforts were aimed at realizing The Great Society. Barack Obama’s presidency is moving toward greatness, as well, but not in a good way. At seemingly every turn, Obama has made sure that major crimes are met not with justice but with immunity. Obama has conferred so much immunity on so many different groups that he has earned the title “The Great Vaccinator”.

Ironically, even Obama’s major “success”, the killing of Osama bin Laden, is marred by an illegal act that this time is mingled with biological rather than legal immunity. It appears that Pakistani doctor Shakil Afridi, working with the CIA, pretended to be carrying out a house-to-house vaccination program so that he could gather intelligence on who was residing in the compound where bin Laden was found. This short-sighted action by the CIA has now put public vaccination programs in a very bad light and set back vaccination programs in impoverished countries significantly.

Even before becoming President, Obama began his quest of conferring immunity wherever justice is demanded. Once he had the Democratic nomination in his pocket, Obama abandoned the principled stand he took during the primaries (when he said he would filibuster any bill with retroactive immunity and would vote against it) and voted along with all Senate Republicans for cloture and then in favor of the bill that conferred retroactive immunity on the telecommunications companies that illegally wiretapped citizens without warrants.

After he won the election but prior to taking office, Obama then began his quest to confer immunity for one of the most egregious crimes committed by our country, the institutionalization of torture as a major tool in the “War on Terror”. As ABC published on January 11, 2009, Obama famously told George Stephanopoulos “we need to look forward”: Read more

The OLC Opinion on Obama’s Recess Appointments

Out of the blue this morning, the Obama Administration has released the OLC opinion it relied on in making last weeks recess appointments of Richard Cordray to the CFPB and others to the NLRB. Several legal analysts and pundits have lobbied publicly and privately for the memo, which almost certainly existed, to be released, maybe the most cogent of the public pleas being made by Jack Goldsmith at Lawfare. Honestly, I agreed fully with Jack, but since the White House was reticent to admit it even existed, and since (as Josh Gerstein pointed out) a 2nd Circuit opinion from 2005 likely meant it was not subject to FOIA, I was not sure how soon it would meet public eyes.

Well, here it is in all its glory.

While some had suggested the reason the White House would not discuss whether there even was an opinion, much less release it, was that the OLC did not support the President’s ability to so recess appoint. I never particularly gave this much credit, even though Obama clearly is not above acting contrary to OLC advice, he did exactly that regarding the Libya war action. And, indeed, here the OLC did support his action in their 23 page opinion.

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power—Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921) (“Daugherty Opinion”)). Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

As I previously have noted, the entire “block” of the President’s recess appointment power is predicated upon the Article I, Section 5 provision in the Constitution that “[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days”. And, so upon what exactly does the OLC hang their hat on that the three day periods do not prevent a “recess” within the meaning of a President’s Article II, Section 2, Clause 3 recess appointment power? Mostly some reasonably thin quotes from GOP Senators that were not Read more

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