Patterico's Pontifications

2/3/2011

Breaking: Obama Administration Held in Contempt Over Gulf Drilling Moratorium

Filed under: General — Aaron Worthing @ 12:51 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update: You can read the opinion, here.  The issue was purely a matter of attorneys’ fees as sanctions.  There is not, at the moment, any indication that any further action is being contemplated by the courts.

It is really breathtaking how lawless this administration is.

Obama is getting no love from the courts these days.  Remember how the judge down in New Orleans struck down the drilling moratorium?  And remember how his administration has flouted the ruling?

Well, the chickens have come home to roost:

U.S. Adminstration In Contempt Over Gulf Drilling Moratorium, Judge Rules

The Obama Administration acted in contempt by continuing its deepwater-drilling moratorium after the policy was struck down, a New Orleans judge ruled.

Interior Department regulators acted with “determined disregard” by lifting and reinstituting a series of policy changes that restricted offshore drilling, following the worst offshore oil spill in U.S. history, U.S. District Judge, Martin Feldman of New Orleans ruled yesterday.

“Each step the government took following the court’s imposition of a preliminary injunction showcases its defiance,” Feldman said in the ruling.

“Such dismissive conduct, viewed in tandem with the re-imposition of a second blanket and substantively identical moratorium, and in light of the national importance of this case, provide this court with clear and convincing evidence of the government’s contempt,” Feldman said.

They have ordered the government to pay for the plaintiff’s attorneys’ fees.  But it is not clear what other sanctions may have been imposed.  What the courts can do is unclear, but if we were behaving rationally, we would have Congress go to the president and tell him either to obey the order (while challenging it through the normal appeals process), or face impeachment.  But I ain’t holding my breath.

Hat tip: Hot Air.

[Posted and authored by Aaron Worthing.]

Déjà vu: Yep, We have Another “Pimp at Planned Parenthood” Video

Filed under: General — Aaron Worthing @ 11:30 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

I predicted two things the last time one of these videos dropped.  First, there were more.  And there is at least one more:

And second, I predicted that the first one was the best.  And that is true, too.  While the behavior in this video is bad, the first one is much, much worse.

And of course it ends with the words, “To be continued…”

Exit question: who is the fastest man on Earth?  Virginia Attorney General Ken Cuccinelli running in front of a camera to announce an investigation. (Note: that is a joke and a prediction; he hasn’t announced anything yet.)

Hat-tip: Hot air.

[Posted and authored by Aaron Worthing.]

Testimony on the Constitutionality of Obamacare and a Correction

Filed under: General — Aaron Worthing @ 8:53 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Yesterday the Senate Judiciary Committee held a hearing into the constitutionality of Obamacare.  As Althouse snarks:

Oh, look! They’re finally paying attention to a little technical matter they ought to have taken account of a year or so ago.

Heh.  You can watch, here:

Or you can read the prepared remarks of John Kroger (Oregon AG), Randy Barnett (a lawblogger I respect), Michael Carvin (a lawyer I never heard of), Walter Dellinger (Althouse says he is a law professor), and Charles Fried (Professor at Harvard).  I haven’t read their remarks, but a quick glance-over indicates that the first three believe it is unconstitutional, and the last two believe it is constitutional [correction: Kroger believes it is constitutional. Thanks to those who emailed].  Althouse discusses some of his testimony here, and despite not having read it, I suspect all five are cogent and intelligent, even though later today I will probably read, analyze and disagree as appropriate.

But as the title promised, I do have a correction to make.  I have said several times that Obama’s lawyers conceded the severability issue, and based that assessment on this line in the opinion:

I note that the defendants have acknowledged that the individual mandate and the Act’s health insurance reforms, including the guaranteed issue and community rating, will rise or fall together as these reforms “cannot be severed from the [individual mandate].”

With some reflection, it is clear that I misread this section.  What Obama’s lawyers were saying was slightly different.  In order to understand what they were saying, we have to remember what the rule is on severability.  As I wrote before:

So it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

That was a summary of the standards stated in Buckley v. Valeo, and it is useful to go to the “horse’s mouth” on the subject:

Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

So there are a few parts that are specifically reference the mandate, and thus can’t operate in a basic way if the mandate is removed.  Those parts would have to be removed and indeed were in the Virginia case striking down the mandate.  There is no discretion on this point.  Then the judge is supposed to determine if “it is evident that the Legislature would not have enacted those provisions which are within its power” if it couldn’t enact the mandate.  If not, then the entire law is struck down.

But the Obama administration wanted a halfway solution.  They agreed you had to take out the sections that were no longer operative.  But they also wanted to take out the sections that were economically dependent on the mandate, such as the rule regarding pre-existing conditions.  So they were asking the judge to go through it, section by section, and try to figure out if congress would have enacted this part if the mandate was not there or not, which when you think about it, is actually a pretty radical step.  In my humble opinion, he did the right thing but not accepting that invitation.  People have called the opinion radical and activist for doing so, but I think it would have been more intrusive into the legislative process to essentially rewrite the law.

Which means I was wrong in my previous analysis, and for that I apologize.  But you can see that this adds an interesting wrinkle, too.

Finally, via Hot Air, we have this discussion between Lawrence O’Donnell and Jonathan Turley.  You know, I disagree with both men on a lot of things, but to the extent that I have paid attention them, they seem like honest people.  This seems like a good example where they put some of the blame on congress for what happened here.  If there was a severability clause, it would have been almost impossible for the whole law to be struck down in toto, so they did make this possible:

But like I said above, I respect them but I disagree with them on many things, and this is one of them.  First, Turley argues that the lack of severability might have been almost like a dare.  “We dare you to strike it all down.”  (That is a paraphrase.)  It’s an interesting theory, but I am not convinced.  First, as I have told you, while it is safe to say that Judge Vinson would not have struck down the entire law if there was a severability clause, the lack of a severability clause didn’t mean he automatically had to strike it all down or none of it.  Second, in some ways it would have been harder, politically, to strike down the mandate if you knew that the rest would remain.  The government’s lawyers have repeatedly said that if you leave in the rule regarding pre-existing conditions but took out the mandate, the health care insurance industry would implode.  What judge would want the health care industry to implode?

And again, neither man seems to think it is possible that the severability clause was excluded specifically so that if the mandate was struck down, the courts would not have to pass a death sentence on the health care insurance industry, especially not in the middle of a recession.  But that seems to be the simplest explanation, in an Occam’s razor sort of way.

Or maybe O’Donnell is right, and it is an oversight.  Which is delicious irony if that is the case.

[Posted and authored by Aaron Worthing.]

That 47-51 Vote in the Senate

Filed under: General — Patterico @ 7:38 am

We got our vote in the Senate, and it was a pure party line vote:

The Senate on Wednesday voted down a repeal of President Obama’s healthcare law in a 47-51 party-line vote.

. . . .

Neither the result nor vote breakdown were surprises. No Democrats in attendance voted in favor of the measure and no Republicans rejected it. Sens. Mark Warner (D-Va.) and Joe Lieberman (I-Conn.) were absent for the vote.

Something to keep in mind the next time the “Real Conservatives” support a hard-line Republican in a state that elects only moderate Republicans. When the “Real Conservatives” try to tell you that there is ABSOLUTELY NO DIFFERENCE!!!!!!11!1!! between the “RINO” they are opposing and the Democrat they are about to get elected, remember votes like this.

To be blunt, Mike Castle would have been vote #48 for repeal. Chris Coons was vote #51 against. And Christine O’Donnell? Didn’t vote and was never going to be voting.

But hey. There is no difference between Chris Coons and Mike Castle. So please. Ignore electoral reality and keep backing the True Conservatives in the blue states.

Just please don’t come whining to us realists when you keep losing votes like this. Thank you.

P.S. That ruling that ObamaCare was unconstitutional? That came from a conservative judge appointed by Reagan. Our only hope that the ruling will stand? A Supreme Court Justice appointed by Reagan.

So if you want to support a “Real Conservative” for President who has no chance of winning, just to make a point, realize that we will lose more Supreme Court seats. And more chances to properly reject unconstitutional laws like this.

Stick to your pet candidate at the expense of reality by all means. Just don’t come whining to us realists when you suddenly find yourself with a liberal majority in the Supreme Court, and freedom-crushing monstrosities like ObamaCare are rubber-stamped with a supercilious limousine-liberal grin.


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