Patterico's Pontifications

3/3/2011

Breaking: Judge Vinson Stays His Obamacare Ruling (Update: Analysis Added)

Filed under: General — Aaron Worthing @ 11:18 am



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

Update: Hot Air’s Ed Morrissey has the best quip: “The White House asked for a clarification.  They got a trip to the woodshed instead.”

I’ll write up an analysis shortly but he has given the Obama administration seven days to file an appeal of his ruling on Obamacare.  You can read it for yourself, here.

Update: And as promised, here is the analysis.

First, as a matter of pure opinion, the entire Order issued today seems to be dripping with irritation toward the Obama administration.  Of course their motion to “clarify” was granted and that only made sense, the judge writing:

While I believe that my order was as clear and unambiguous as it could be, it is possible that the defendants may have perhaps been confused or misunderstood its import. Accordingly, I will attempt to synopsize the 78-page order and clarify its intended effect. To that extent, the defendants’ motion to clarify is GRANTED.

And I believe, reading the whole thing, that the judge was at a loss to understand what they were having trouble understanding, to the point that he doubted the sincerity of the request.  But nonetheless, he did provide a pretty decent “cliff’s notes” version of his earlier decision, although I thought the original was clear enough.

And going to the sincerity issue, he acknowledges the claim by the plaintiffs that this was a motion for stay in disguise.  Then he says, without opining if the plaintiffs were right, that the defendants said in their motion that they planned to file for a stay, so he will treat this motion as a motion for stay on its own, and then proceeded to consider the issue.

Now it is fair to say that I was wrong previously about the chances of getting a stay.  I mean to say I should have known that the judge was pretty likely to grant one.  This is one of those instances that lawyers experience quite frequently when dealing with the federal bench, where the judge completely outclasses the advocates.  It’s humbling, but it takes out some of the sting when we lawyers notice how common it is.  Consider the factors involved here:

(1) whether the applicants have made a strong showing that they are likely to prevail; (2) whether the applicants will be irreparably injured if a stay is not granted; (3) whether granting the stay will substantially injure the other parties interested in the proceeding; and (4) “where the public interest lies.”

I always thought the first one was a gimmie for the plaintiffs.  But I forgot about a basic reality of the situation.  There is an inherent bias involved in that question.  The district court judge has always ruled against the movant, so the judge already ruled on the merits and would be inclined to think they were wrong.  Which, perversely motivates him to give the losers a chance, because often when you have an obvious bias in favor of one side, you actually act biased in favor of the other side just to show how “unbiased” you are.

Of course that is my gloss on this and that can’t really be proven.  He also mentions that the standard for likely success on appeal is not simply a matter of predicting who is more likely to win.  It’s more like whether there is any realistic chance to win.  And there was that.

I also failed, I admit, to notice one very serious problem with number 3.  The plaintiff states were themselves split on whether to stop implementation of Obamacare.  Most of the states subject to that ruling were still going forward, to hedge their bets.  Others were not.  And of course the judge noted another problematic element of the third factor.  One of the parties to the suit was Michigan.  But another Federal District Court, in Michigan, upheld Obamacare’s mandate, raising a question of which decision should control.

And then on dealing with the public interest, the judge writes this:

Finally, for the last factor, I must consider “where the public interest lies.”  Although the defendants’ pleadings present a reasonably persuasive argument for why the “public interest lies” in having my declaratory judgment and de facto injunction stayed pending appeal, almost every argument that the defendants have advanced speaks much more persuasively to why the case should be immediately appealed and pursued in the most expeditious and accelerated manner allowable.

Judge Vinson goes on for quite a bit arguing that the appellate courts must take it on an expedited basis.  I would go as far as to say he felt this was ready for the Supreme Court.  This passage in particular seemed, in a subtextual way, to speak to that:

It should not be at all difficult or challenging to “fast-track” this case.  The briefing with respect to the general issues involved are mostly already done, as the federal government is currently defending several other similar challenges to the Act that are making their way through the appellate courts. Furthermore, the legal issues specific to this case have already been fully and very competently briefed. With a few additional modifications and edits (to comply with the appellate rules), the parties could probably just change the caption of the case, add colored covers, and be done with their briefing.

He even alludes to the special rule allowing appellants to skip directly to the Supreme Court as follows:

After careful consideration of the factors noted above, and all the arguments set forth in the defendants’ motion to clarify, I find that the motion, construed as a motion for stay, should be GRANTED. However, the stay will be conditioned upon the defendants filing their anticipated appeal within seven (7) calendar days of this order and seeking an expedited appellate review, either in the Court of Appeals or with the Supreme Court under Rule 11 of that Court.

So it is reasonable to think he is saying, “Come on, Supremes.  Why drag this out?  Let’s get this thing done this summer.”

Personally I very much like the idea of the Supreme Court taking it on now.  Besides the simple fact that otherwise we would be needlessly dragging out the uncertainty involved, consider this.  If it went to the Supreme Court now, they will have this written on the side opposed to Obamacare:

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

And they will have had this written in support of Obamacare:

As previous Commerce Clause cases have all involved physical activity, as opposed to mental activity, i.e. decision-making, there is little judicial guidance on whether the latter falls within Congress’s power….  However, this Court finds the distinction, which Plaintiffs rely on heavily, to be of little significance.

Just as I think Judge Vinson’s invocation of the Tea Tax controversy is a uniquely persuasive passage, I think Judge Kessler’s “mental activity” line is positively repellent.  Both Judges’ opinions will sway wavering justices into opposing Obamacare, with Vinson bringing people to his side, and Judge Kessler sending potential supporters fleeing from her argument.  If Obamacare is struck down, it might be hard to determine who did more to help this victory along.  Indeed, if Scalia writes the majority opinion, I am not sure who is more likely to be quoted.  Scalia is known to delight in mocking ridiculous arguments.

So in short a victory for the Obama administration, but maybe a pyrrhic one.  If the appellate courts agree to an expedited appeal, Judge Vinson’s and Judge Kessler’s words will be very prominent in the minds of the Supreme Court Justices.  That isn’t a good thing for Obamacare’s supporters.

Update (II): Scott Jacobs in the comments notices something I glossed over: a zing apparently aimed at Judge Kessler.

Although I strongly believe that expanding the commerce power to permit Congress to regulate and mandate mental decisions not to purchase health insurance (or any other product or service) would emasculate much of the rest of the Constitution and effectively remove all limitations on the power of the federal government, I recognize that others believe otherwise.

Indeed, in one of the footnotes he makes specific reference to that decision.

[Posted and authored by Aaron Worthing.]

2/18/2011

Obama Administration Tries to Mislead Judge Vinson and Scattered Legal Updates

Filed under: General — Aaron Worthing @ 8:36 am



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

There has been a lot of activity in a lot of legal issues we have been following.  So here’s a post catching up on a few of them.

Let me start with the misleading part, because this is pretty outrageous.  As you know, Judge Vinson in Florida held that all of Obamacare was unconstitutional, because the mandate was unconstitutional, and it could not be severed from the rest.  If you need to catch up, this search will help you find pretty much all of the posts on this subject.

So the Obama administration’s lawyers have filed a “Motion to Clarify” where they pretend that they are not sure what Judge Vinson meant by his ruling.  You see a few states, such as Florida and Alaska, have decided in light of Vinson’s ruling that Obamacare is a dead letter to them (both states were parties to the decision).  This is the correct reading of the decision.  The judge declared the law to be unconstitutional, and the only reason why an injunction wasn’t granted was because, in Vinson’s words

there is a long-standing presumption .that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction….  There is no reason to conclude that this presumption should not apply here.  Thus, the award of declaratory relief is adequate and separate injunctive relief is not necessary.

(internal quotation marks omitted.)  So things couldn’t be clearer.  He declared that the law was void and expected the administration to treat it as such.  Of course in a moment Judge Feldman is going to give us a reason to doubt that the Obama administration would follow the law, but Vinson is probably wise to wait for them to defy him before putting an injunction into place.

Nonetheless, the adminstration’s lawyers are confused and seek to clarify, or so they say.  But in truth, they seem to be actually intent in getting the judge to grant a de facto stay of his ruling, and to do so they cross the line into dishonesty, writing:

In other declaratory judgment cases, pending appellate review, “the Government has been free to continue to apply [a] statute” following entry of a declaratory judgment.  Kennedy v. Mendoza-Martinez, 372 U.S. 144, 155 (1963); accord, e.g., Carreno v. Johnson, 899 F. Supp. 624, 628 (S.D. Fla. 1995) (“[a]bsent an injunctive sanction, a district court’s declaration that a statute is unconstitutional does not bar the government from continuing to apply the statute pending review by the Court of Appeals and the . . . Supreme Court”).  Mendoza-Martinez contrasted that rule for declaratory relief with the different immediate consequences of an injunction, under which “a single federal judge” could “paralyze totally the operation of an entire regulatory scheme, either state or federal, by issuance of a broad injunctive order” prior to appellate review.  372 U.S. at 154.

That entire paragraph is wholly deceptive.  Mendoza-Martinez was a man facing deportation to Mexico, who claimed birthright citizenship in the U.S.  The dispute involved the application of 28 U.S.C. § 2282, which required that three judge panels must be convened in order to grant injunctive relief preventing the application of federal law.  So the question in Mendoza was whether the judge had violated this statute by giving Mendoza-Martinez declaratory relief all by himself, without the three judge panel to back him up.  There are several problems with applying Mendoza to this current situation, not the least of which being that the statute in question was repealed.  Thus the entire reasoning of the opinion relied on the policy underlying a statute that was no longer operative.

Further, the Carreno citation is equally invalid.  Prior to Carreno, a D.C. District Judge held that an extradition statute was unconstitutional in Lobue v. Christopher, 893 F.Supp. 65 (D.D.C.1995).  In Carreno itself, this time in Florida, another man who was not a party to the Lobue case, claimed that the Lobue court’s  declaration that the law was unconstitutional freed him, too.  The Carreno judge denied this, saying

Judge Lamberth’s August 31, 1995 declaratory judgment does not bar the government from proceeding under the extradition statute in the case of Manrique Carreno. Moreover, the August 31, 1995 ruling only enjoins execution of the surrender warrants for the two plaintiffs in Judge Lamberth’s case. Therefore, the injunction has no direct effect on the extradition proceedings as to Manrique Carreno.

In other words, the Lobue case only meant that the statute could not be applied to the parties in that case, a principle that is pretty much black letter law.  Carreno couldn’t ride their coattails to victory.  Which means that a person in Connecticut, for instance, doesn’t get the benefit of Vinson’s ruling.  But on other hand, every single state in the case can receive the benefits of the decision.  That only makes sense.  For instance, the state of Virginia was not before Judge Vinson.  Instead they chose to sue on their own before Judge Hudson in Virginia.  And while they got the mandate struck down, the remainder of the law was allowed to stand.  So obviously the State of Virginia can’t suddenly pretend it won the whole case because Vinson ruled differently.  And the amazing thing is that later on, the government’s lawyers show that they get this, writing, “[n]on-parties are of course not entitled to the benefits of a judgment against the government[.]”

Of course that creates a problem of patchwork enforcement.  But there is an easy solution if the government doesn’t like it: stop enforcing the law entirely until this is cleared up.

They go on pretending to be confused on when this decision goes into effect.  Really?  You can’t figure out he means, “immediately?”  Seemed pretty obvious to me.

Anyway, the brief as a whole is a thinly disguised motion for a stay or motion for reconsideration of the entire ruling, with a healthy dose of deception for good measure.

Meanwhile, down in New Orleans Judge Feldman has ordered the Obama Administration to begin acting on drilling permits.  You might recall that Feldman ordered the administration to lift their moratorium on drilling months ago and the administration has been flouting the decision ever since, resulting in the administration being held in contempt.  Now he has given them a month to get off their behinds and act, although importantly he didn’t require them to accept the permits.  So the question is whether the administration will start acting honestly, will continue delaying the permits anyway, or deny them all as a giant “screw you” to Feldman.

Anyway, you can read the opinion, here, but my only commentary on it is that it is actually a very standard order of this kind.

I expect to hear the usual defamatory accusations of conflict of interest against Feldman.  Apparently the left believes that if you ever own stock in oil, work for an oil company, etc, you contract a serious case of oil cooties rendering you incapable of dealing logically with the issue.  And knowledge of one of the most important industries in the world is a bad thing.

Finally, in Patrick’s neighborhood, the California Supreme Court has taken up the question of standing in the Proposition 8 case.  This is bluntly not much of a surprise, but Ed Whelan has the rundown, here.

[Posted and authored by Aaron Worthing.]

2/1/2011

Tune in to a Smart Discussion on Vinson’s Ruling (Bumped)

Filed under: General — Aaron Worthing @ 6:00 pm



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

Update: The show is on now. I will be on soon.

Update: Okay, done. I think I did a reasonable job. And it appears that you can listen to the recording here and decide for yourself.

I have been contacted by John Smart who runs a net-based “radio” talk show and he has graciously invited me to be a guest on his show.  He said his show will start at 6 pm Pacific time (which is 9 pm Eastern) and at that time you should tune in, here, if you are so inclined.  Afterward it will be in the site’s archive and you can even listen somehow on Itunes.

He seems left of center, but more importantly he seems to be principled.  Consider for instance this passage from his blog discussing the decision:

It defies ALL logic – from the left, right or center – to claim that non economic activity is economic activity. Not buying an apple is not the same as buying an apple. If we can’t agree on this small bit of reality then we’re cooked. The sad, sick, fact here is that those on the Obama Apologist Faux Left don’t give a rat’s a– about logic. They don’t give a rat’s a– about the precedent the mandate sets. Or won’t until the same logic forces them to by war bonds or stock in G.E. under some future GOP admin. They don’t give a rat’s a– about the law or civil liberties. They care about 2 things: Control and Adoring Obama.

And despite that flash of anger and coarse language, my impression is he is generally a calm and cogent man—not some shock jock.  So hopefully this will be fun law-nerd talk and I can keep things interesting.  Or I will crash and burn.  Which might be fun listening in its own right, sort of like video of a car accident.

[Posted and authored by Aaron Worthing.]

Scattered News, Reactions and Rebuttals in the Discussion of Vinson’s Ruling

Filed under: General — Aaron Worthing @ 5:59 pm



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

First, the good.  There is good, straightforward discussion of the case at the Wall St. Journal.  And Law.com is always good for providing quality legal reporting.  They also give us an update on other cases involved in Obamacare:

The 4th Circuit just last week set an expedited briefing and argument schedule for its review of the two Virginia cases: Sebelius v. Commonwealth of Virginia, and Liberty University v. Geithner. All briefing is to be completed by April 18 with a hearing date for May 10-13. Both cases will be heard on the same day, according to that court.

The Michigan case — Thomas More Law Center v. Obama — is now before the 6th Circuit. Briefing was completed last week, but no argument date has been scheduled.

A case is also pending in the 9th Circuit — Baldwin v. Sebelius, which a district court dismissed for lack of standing.

That last bit should be remembered the next time someone claims that the fact that a lot of other cases have been dismissed matters.  There are a lot of ways to dismiss a case without reaching the question of whether the mandate is constitutional.  As for standing, there can be rational debate about whether it exists now (I believe it does), but there is no question that the first time they try to enforce the mandate, that person will have standing.  So standing is a significant issue in and of itself, but it’s inevitable that sooner or later someone will have it.

Of course law.com also missed a case, discussed here, where they used Roe v. Wade to attack Obamacare.  I haven’t heard anything about this case for a while, so I will try to learn more and post on it.

Now the criticisms.  The first is Jack Balkin, a Constitutional Law Professor at Yale Law School and frankly I am disappointed in this post from him.

In it he first recites the myth that Bush v. Gore was saying it was not setting a precedent, by quoting this passage: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  And thus the left, for well over ten years, have turned a simple and logical statement that election law is complicated, and thus each inquiry is individualized and fact-intensive, into a claim that this doesn’t count as precedent.  It isn’t what the court said, and indeed the courts have regularly cited Bush v. Gore as precedent in about two hundred cases, according to Fastcase and even more according to Google.

And then Balkin turns around and tries to claim that this element, that wasn’t actually in Bush v. Gore, is present in Vinson’s decision, by quoting this line:

The individual mandate cannot be severed. This conclusion is reached with full appreciation for the “normal rule” that reviewing courts should ordinarily refrain from invalidating more than the unconstitutional part of a statute, but non-severability is required based on the unique facts of this case and the particular aspects of the Act. This is not a situation that is likely to be repeated.

(emphasis added by Balkin).  But this supposedly ominous statement is nothing more than an assessment of how likely it is that the judge will be faced with an analogous situation. As he wrote just before the cherry-picked section:

In sum, notwithstanding the fact that many of the provisions in the Act can stand independently without the individual mandate (as a technical and practical matter), it is reasonably “evident,” as I have discussed above, that the individual mandate was an essential and indispensable part of the health reform efforts, and that Congress did not believe other parts of the Act could (or it would want them to) survive independently.

Isn’t it reasonable to say he isn’t likely to see a situation like that again in his life?  A situation where 1) Congress forgets (or intentionally leaves out) a severability clause in 2) a massive statute, 3) the keystone of which is a provision 4) which represented a literally unprecedented grasp for power?  This is not a common occurrence and pointing that out doesn’t mean the judge has suddenly declared his ruling to have no precedential value.

For years I thought of Professor Balkin as inconsequential.  Now I am convinced he is just a hack.

Speaking of hacks, Think Progress has come up with another “scandal.”  The judge borrowed texts from a brief from the Family Research Council that the Southern Poverty Law Center calls a hate group!

(more…)

1/31/2011

The Obama Administration Spits in Judge Vinson’s Eye and Other Reactions to Today’s Ruling

Filed under: General — Aaron Worthing @ 7:59 pm



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

Toward the end of my last post analyzing Judge Vinson’s excellent decision striking down the entirety of Obamacare, I wrote the following to explain why there was no injunction:

[T]he court reasoned that a judgment declaring the law to be unconstitutional is sufficient relief to the plaintiffs because “there is a long-standing presumption that officials of the Executive Branch will adhere to the law as declared by the court. As a result, the declaratory judgment is the functional equivalent of an injunction.”  (internal quotation marks removed.)  In other words, he felt that the Federal Government would try to obey the law without the court formally ordering its obedience.  But believe you me, if the Obama administration ignores this ruling, the court can and certainly will revisit the matter and issue an injunction.

Well, it didn’t take long.  Via the Daily Caller:

“We don’t believe this kind of judicial activism will be upheld,” said Obama spokeswoman Stephanie Cutter in a blog post published at WhiteHouse.gov.

Senior administration officials vowed implementation of the law would “proceed apace.”

Well, go ahead, see what happens if you try to implement Obamacare without actually overturning the decision.

And notice that term “activism.”  The correct translation when a liberal says it is “a decision I don’t like.” There is no other definition for liberals.  They don’t mind cases that overturn precedents, that overturn federal laws, and that invent rights out of thin air.  Let’s suppose for the sake of argument that the judge’s opinion is not supported by the constitution or precedent—they have no principled objection to that.  So their objection is merely to losing.

And meanwhile anonymous White House officials had this to say:

White House officials said that sort of “surpassingly curious reading” called into question Judge Vinson‘s entire ruling.

“There’s something thoroughly odd and unconventional about the analysis,” said a White House official who briefed reporters late Monday afternoon, speaking on condition of anonymity.

That is via Volokh’s David Bernstein who wonders why they were granted anonymity for such inanity.  As Jennifer Rubin correctly argues “These are complaints, not legal arguments. And they suggest that the left was totally unprepared for the constitutional attack on their beloved handiwork.”  Again, Obama himself was a constitutional law professor.  And he was caught by surprise?  Shouldn’t he have known this might happen?

Is there a job he is good at?

Meanwhile Ezra Klein makes a feeble attempt to attack the ruling.  I would fisk it, but the boys at Powerline already have.

Meanwhile Brian Beutler manages to commit murder against an innocent straw man:

Vinson tossed the entire thing because it lacked a “severability clause,” which would have compartmentalized the legislation itself and forced judges to weigh individual sections on their own merits. But the standard isnot that an unseverable law should be stricken in its entirety.

No, Ferris Bueller Beutler, it is not simply an automatic either/or proposition.  Sometimes the court says that one part can be severed.  And other times the court says that it can’t be.  But as Jennifer Rubin points out, Obama’s own lawyers conceded it couldn’t be severed.  Which should end the discussion.

And while most judges are content to label the judge a republican, Think Progress takes the screeching to an additional level, calling him (without citing any evidence) a Tea Party Judge.  Or is the new rule that anyone who mentions the Boston Tea Party is a member of the current Tea Party?

Or wait, maybe they mean this kind of Tea Party?

Tell the truth, liberals.  You think the modern, political movement called the Tea Party is exactly like this, don’t you?

[Posted and authored by Aaron Worthing.]

10/19/2010

Judge Vinson to Congress: You Really Should Read These Laws Before You Pass Them

Filed under: General — Aaron Worthing @ 8:24 am



[Guest post by Aaron Worthing]

I posted a link the other day to Judge Vinson’s opinion in Florida v. United States Department of Health and Human Services, the biggest of the Obamacare challenges, but I have only now had a chance to read it and I think I have something to contribute to the analysis.

One of the key questions in the case is whether the mandate is a tax or a penalty.  If it is a tax, it becomes much easier to defend the law from a constitutional perspective.  I mean, think about it.  Do you deduct interest on your mortgagewhen doing your taxes?  And of course one of the reasons why you would get a house with a mortgage, instead of just renting a house, is that you can’t deduct anything from a rental.  So in that situation, the government is encouraging you to enter into a specific kind of contract with a private party and raising your taxes if you refuse.  Which sounds a lot like the mandate, doesn’t it?  As much as I despise Obamacare, I can see the argument.

But if it’s a penalty and not a tax, it is a lot harder to justify.  So in his opinion, Judge Vinson spends a lot of time analyzing the law to determine that it is penalty, not a tax.  He arrives at that conclusion citing a number of facts:

  • The act called it a penalty, not a tax.
  • Earlier versions of this law, and similar proposals called it a tax.  So as they went through their drafts, they changed the word “tax” to “penalty.”
  • The law enacts a number of taxes and labels them as taxes, but not this alleged “tax.”  This is an example of expressio unius, a concept I explain here.
  • The findings of fact (in the statute) invoked Congress’ power under the commerce clause, but not the taxing power.  Meanwhile the taxes in the act were justified under the taxing power.
  • When the CBO ran its cost estimates, tallying how much the law would cost versus how much revenue it would raise, it didn’t include any money from the mandate.  In other words, the CBO acted as though the mandate would raise absolutely no revenue at all.
  • “[T]he Act lists seventeen ‘Revenue Offset Provisions’… and … it further includes a section entitled ‘Provisions Relating to Revenue’….  However, the individual mandate penalty is not listed anywhere in them.”

So put that all together, Judge Vinson says, and it is clear that Congress intended it to be a penalty and not a revenue-raising tax.

Now that is all well and good in classic plain language statutory construction.  But what leaps out at me is that his entire analysis depends on Congress paying a lot more attention to the language of the law than they actually did.  From Nancy Pelosi declaring that we had to pass the law to see what was in it, to Max Baucus claiming paradoxically that he wrote the healthcare law, but didn’t actually read it, not to mention that they manage to pass laws called “The ______ Act of ____,” it’s really hard to pretend that Congress carefully crafted this law.

Now, it is possible that Vinson was just applying precedent as he saw fit, and he didn’t want to send a message.  But whether he intended to or not, anyone who reads the opinion sees that the courts following this approach are going to act as though Congress carefully crafted and scrutinized every word.  So if they don’t actually devote this much attention to a statute’s language, then the law of unintended consequences will bite them right in the kiester.  Whether Vinson intended to send that message, it is the message being sent.

Of course the flaw in the theory that he is trying to send a message is that Judge Vinson would have to believe that Congress would actually read what he wrote—which is itself a dubious proposition.

Another possibility is that Judge Vinson felt that the law is constitutional under the tax power, but he chose to strike it down to force Congress to take a “second look.”  This is a theory of judicial review popularized by Alexander Bickel in his book The Least Dangerous Branch.  The idea is that for certain laws, the courts like to strike down a law based on B.S., in order to force them to look at the law and the policy underneath a second time.

Mind you, I am not defending this approach to interpreting the constitution.  In fact, I am appalled by it.  But just because it is wrong, doesn’t mean it’s not happening.

On the other hand, when Congress has so clearly abdicated its duty to actually know what it is passing, a “second look” seems more justified than usual.  I mean “second look” would seem like a misnomer in relation to Obamacare.  First look is more like it.

And you could consider it to be either a horrible or perfect example of the Bickelian principle in operation.  The fact is if the law is struck down in order to make Congress take a second (or first) look, it will be very hard to pass anything like this law twice.  Unless the poll numbers are very misleading, the next Congress won’t do it, so it would have to be done during the lame duck section, which also strikes me as unlikely.  So on one hand you might argue that the judge is manipulating constitutional interpretation in light of the elections.  Or, you might say that the voter anger over this issue is the second look Bickel was talking about and in that case, you could say this is a perfect example of this principle in operation.

And just as with the theory that Judge Vinson is trying to tell Congress to actually read the law, his application of precedent is reasonable enough that he might be doing nothing more than applying the law to the facts.  But the obvious effect of this his decision, if he strikes down Obamacare and his decision is upheld on the grounds he invoked, is to give Congress a second bite at the apple—a chance to give the matter a second (or first) look.  And when person’s actions has an obviously foreseeable effect, it is generally reasonable to wonder if that effect was intended.

[Posted and authored by Aaron Worthing.]

6/20/2017

What It’s Like Living in an Avocado Republic

Filed under: General — JVW @ 4:58 pm



[guest post by JVW]

California, as we famously know, is a one-party state. The last Republican to be elected to statewide office was Arnold Schwarzenegger, who is hardly anyone’s idea of a true blue conservative. The GOP briefly seized control of the State Assembly in the 1994 midterms when the Democrats were crushed nationwide, but treachery from within and without doomed them and the party has never recovered, slipping farther and farther behind the Democrats in nearly each subsequent election.

This has made nearly invincible the Democrats, a party that is largely driven by greedy unionized government workers and corrupt racial/ethnic grievance mongers with the support of gentry liberals, and has inculcated in them both an arrogance stemming from unchecked power and a belief that they can manipulate the system in any way imaginable in order to protect their interests. With lame-duck Governor Jerry Brown no longer interested in trying to impress a modicum of fiscal responsibility upon his colleagues, the California Legislature has embarked upon an orgy of taxing and spending, promising to bring progressive paradise to the shores of the Pacific. The latest manifestation of this never-satiated hunger for tax revenue was an increase in the gas tax and vehicle registration fees, which passed the legislature a few weeks ago and has proven to be unpopular among a Golden State public that desires big government’s beneficence but has no intention of paying for it themselves.

So California Republican activists, seeing an opening, have begun pushing for a recall election election for freshman state senator Josh Newman of Fullerton, a Democrat whose vote in favor of the new taxes helped pass the bill (Democrats have the bare supermajority of 2/3 of the chamber required by California law to pass tax increases). They have begun a campaign of circulating recall petitions, with the object of forcing a special recall election where the ability to turn-out angry voters might just tip the balance and force Newman out. In response, the Democrat leadership in the legislature has conspired to change the law in midstream and slow down the recall process in order to halt momentum and to make it far more likely that any recall election would take place during a general election when Democrats can better turn-out their voting base. Democrats seized upon some alleged misleading flyers distributed by recall supporters which incorrectly suggested that voting for the recall would undo the gas and vehicle tax increases, and feigned outrage at the perfidy in order to justify this extraordinary exercise of raw political muscle. But even some friendly academics are having trouble justifying this move:

[O]ne California elections expert said she found the legislation “dispiriting,” saying that it was written for Democrats’ political gain rather than to address the problem of misleading signature-gathering tactics. Newman’s narrow victory in November secured his party a supermajority in the Legislature.

“If this was truly about trying to get at the systemic problem of false signature gathering, I don’t think the bill would look this way,” said Jessica Levinson, a Loyola Law School professor. “It would be broader — it would apply to all the different ways we gather signatures.

“This,” she added, “seems to be targeted at lengthening the time to get a recall on the ballot, which in this case would help Sen. Newman.”

Ah, California: it was almost Eden until all the progressive snakes showed up peddling government apples.

– JVW

5/24/2017

Reporter For The Guardian Alleges He Was Body Slammed By GOP Running For Montana House Seat (Update Added)

Filed under: General — Dana @ 8:09 pm



[guest post by Dana]

Late this afternoon, Guardian reporter Ben Jacobs tweeted that he had been “body slammed” by Greg Gianforte, the Republican candidate running for Montana’s House seat in tomorrow’s special election:

Untitled

Audio of the incident was provided to the Guardian:

From the report:

Ben Jacobs, a Guardian political reporter, was asking Greg Gianforte, a tech millionaire running for the seat vacated by Ryan Zinke, about the Republican healthcare plan when the candidate allegedly “body-slammed” the reporter.

“He took me to the ground,” Jacobs said by phone from the back of an ambulance. “This is the strangest thing that has ever happened to me in reporting on politics.”

Jacobs subsequently reported the incident to the police. The Gallatin County sheriff’s office is investigating.

Shane Scanolon, spokesman for Gianforte’s campaign, released this statement:

Untitled

Here is a clearer version of Scanlon’s statement:

“Tonight, as Greg was giving a separate interview in a private office, The Guardian’s Ben Jacobs entered the office without permission, aggressively shoved a recorder in Greg’s face, and began asking badgering questions,” Scanlon said. “Jacobs was asked to leave. After asking Jacobs to lower the recorder, Jacobs declined. Greg then attempted to grab the phone that was pushed in his face. Jacobs grabbed Greg’s wrist, and spun away from Greg, pushing them both to the ground. It’s unfortunate that this aggressive behavior from a liberal journalist created this scene at our campaign volunteer BBQ.”

A BuzzFeed News reporter in the immediate vicinity of where the incident took place, was able, at least in part, to confirm Jacobs’ account:

Jacobs’s account was partially confirmed by BuzzFeed News reporter Alexis Levinson, who wrote on Twitter that she had been in an adjacent room during the incident.

“This happened behind a half closed door, so I didn’t see it all, but here’s what it looked like from the outside – Ben walked into a room where a local tv crew was set up for an interview with Gianforte. All of a sudden I heard a giant crash and saw Ben’s feet fly in the air as he hit the floor. Heard very angry yelling (as did all the volunteers in the room) – sounded like Gianforte…”

She later tweeted:

[B]efore the incident, she overheard Gianforte’s staff telling Jacobs that the campaign was upset with the Guardian’s previous reporting and that the candidate would likely not have time to talk to him. Jacobs then entered the side room to try to talk to Gianforte.

Fox News is reporting a firsthand eyewitness account of the incident by veteran Fox News reporter Alicia Acuna, who was there with field producer Faith Mangan and photographer Keith Railey to interview Gianforte:

As the time for the interview neared, Gianforte came into the room. We exchanged pleasantries and made small talk about restaurants and Bozeman.

During that conversation, another man — who we now know is Ben Jacobs of The Guardian — walked into the room with a voice recorder, put it up to Gianforte’s face and began asking if him if he had a response to the newly released Congressional Budget Office report on the American Health Care Act. Gianforte told him he would get to him later. Jacobs persisted with his question. Gianforte told him to talk to his press guy, Shane Scanlon.

At that point, Gianforte grabbed Jacobs by the neck with both hands and slammed him into the ground behind him. Faith, Keith and I watched in disbelief as Gianforte then began punching the man, as he moved on top the reporter and began yelling something to the effect of “I’m sick and tired of this!”

Jacobs scrambled to his knees and said something about his glasses being broken. He asked Faith, Keith and myself for our names. In shock, we did not answer. He then said he wanted the police called and went to leave. Gianforte looked at the three of us and repeatedly apologized. At that point, I told him and Scanlon, who was now present, that we needed a moment. The men then left.

Acuna also confirms that at no time did Jacobs “show any form of physical aggression toward Gianforte.”

You can watch the Montana Sheriff’s office address the matter here. Due to it being an active investigation, the Sheriff’s office spokesman provided little information other than deputies responded to an allegation of an assault, they interviewed Gianforte and other individuals present in the room at the time. No confirmation as to whether charges will be filed. Also, no comment on whether this will have any impact on the special election. There is also no evidence or knowledge about video of the incident.

According to Dave Weigel, supporters for Gianforte’s opponent in the race, Democrat Rob Quist, are now playing audio for voters as they canvas the area. I just bet they are.

(Cross-posted at The Jury Talks Back.)

–Dana

UPDATE: Greg Gianforte has been charged with misdemeanor assault.

4/19/2017

Trump Claim About Aircraft Carrier Was False

Filed under: General — Patterico @ 7:34 am



Remember when Trump said an aircraft carrier was headed towards North Korea? Yeah, it wasn’t.

Just over a week ago, the White House declared that ordering an American aircraft carrier into the Sea of Japan would send a powerful deterrent signal to North Korea and give President Trump more options in responding to the North’s provocative behavior. “We’re sending an armada,” Mr. Trump said to Fox News last Tuesday afternoon.

The problem was that the carrier, the Carl Vinson, and the three other warships in its strike force were that very moment sailing in the opposite direction, to take part in joint exercises with the Australian Navy in the Indian Ocean, 3,500 miles southwest of the Korean Peninsula.

White House officials said Tuesday that they had been relying on guidance from the Defense Department. Officials there described a glitch-ridden sequence of events, from an ill-timed announcement of the deployment by the military’s Pacific Command to a partially erroneous explanation by the defense secretary, Jim Mattis — all of which perpetuated the false narrative that a flotilla was racing toward the waters off North Korea.

There’s finger-pointing going on regarding why this happened, but the inevitable Trumper defense that Trump is just keeping people off guard does not wash.

In South Korea, Hong Joon-pyo, the presidential candidate from former​ leader Park Geun-hye’s ruling party, said it was inappropriate to judge before receiving final confirmation of the Carl Vinson’s whereabouts. But, in an interview, he said: “What Mr. Trump said was very important for the national security of South Korea. If that was a lie, then during Trump’s term, South Korea will not trust whatever Trump says.”​

​He also said that, in light of Mr. Trump’s recent military strikes on Syria and ​Afghanistan, “it seems to me that Trump is a person who takes responsibility and action based on what he says.”

. . . .

In Japan, Prof. Narushige Michishita of the National Graduate Institute for Policy Studies said regardless of whether the U.S. intended to deceive or the narrative was a miscommunication, it looked bad for the White House.

“At a time of emergency, disinformation could be used as a tactic, but if the U.S. president spreads disinformation in peacetime like now, it would hurt the credibility of the U.S.,” he said.

Either Trump was behaving very erratically or he didn’t know where his aircraft carrier was and where it was headed. Neither possibility inspires confidence.

[Cross-posted at The Jury Talks Back.]

9/10/2015

Why Justin Amash Opposes the Iran Deal

Filed under: General — Patterico @ 7:51 am



Justin Amash, a libertarian Republican who explains all his votes on Facebook, has a lengthy set of reasons for his opposition to the Iran deal. He first objects to its violating the Treaty Clause, which is a familiar argument that I will not quote. He then goes on to say:

Even if we accept this dubious claim, there is a second constitutional defect that compels me to reject the nuclear deal. Under the Take Care Clause (Art. II, Sec. 3, Cl. 5), the president must “take Care that the Laws be faithfully executed.” As I discuss below, the president clearly fails to fulfill this obligation.

In May, both houses of Congress passed, and the president signed into law, H.R. 1191, the Iran Nuclear Agreement Review Act of 2015 (Review Act). The Review Act provides a process for congressional oversight of any nuclear deal, so that Congress can determine whether the nuclear-related sanctions Congress has imposed on Iran should be lifted. I have supported sanctions on Iran directed at preventing the country from obtaining or using a nuclear weapon (in contrast to sanctions targeting non-nuclear-related civilian activities), and it’s likely that negotiations would not have taken place had those sanctions not been enacted.

The Review Act requires the president to submit to Congress the text of any nuclear deal reached with Iran. Submission of the nuclear deal triggers a period of review for Congress to analyze the agreement—a period during which the president is prohibited from taking any actions to lift statutory sanctions.
The precise language of the Review Act recognizes that a comprehensive nuclear deal includes many separate components, and that for members of Congress to accurately assess the merits of the agreement, Congress must have access to all portions of the agreement. Thus, the Review Act carefully defines “agreement” to include “annexes, appendices, codicils, side agreements, implementing materials, documents, and guidance, technical or other understandings, and any related agreements.”

We now know that there are at least two side agreements between Iran and the International Atomic Energy Agency (IAEA) that are integral to the nuclear deal but nevertheless will not be shared with Congress. These side agreements cover how a primary Iranian military site will be inspected for nuclear activity and how Iran will resolve outstanding issues on possible military dimensions of its nuclear program. Remarkably, it was only through a chance meeting between two members of Congress and the IAEA that the existence of these secret agreements came to light. The Obama administration apparently preferred to keep Congress in the dark, and even now the administration refuses to provide the side agreements to Congress. Indeed, Secretary of State John Kerry claims that even the president’s negotiating team doesn’t have access to these side agreements.

The Obama administration’s secrecy surrounding these side agreements casts serious doubts on its other claims about the nuclear deal, and it makes clear that the president has not been working with Congress in good faith. The president signed the Review Act into law knowing full well that it requires him to provide all side agreements to Congress. The administration should not have negotiated a final nuclear deal that allows portions of the agreement to be withheld from Congress, because the president knows that his agreeing to such a nuclear deal violates U.S. law and his duty under the Constitution’s Take Care Clause.

This violation of law with respect to the submission of the agreement has further implications under the Review Act. The 30- to 60-day congressional review period for the nuclear deal isn’t triggered until the president submits the *entire* agreement to Congress. If the nuclear deal hasn’t been submitted in full—because side agreements remain hidden—then the review period hasn’t even begun.

But the existence of secret agreements with the IAEA has deeper implications still. The available text of the nuclear deal states that nuclear, missile, and arms restrictions on Iran are to be lifted after certain periods of time (between five and ten years depending on the source and type) “or when the IAEA has reached the Broader Conclusion that all nuclear material in Iran remains in peaceful activities, whichever is earlier.” In other words, at the discretion of the IAEA, these restrictions may be lifted significantly earlier than the milestone dates specified in the agreement, and the exact method by which the IAEA will reach this conclusion can’t be known to Congress or even the Obama administration, because the side agreements remain secret.

Finally, even if we set aside the constitutional defects and related consequences discussed above, it is unconscionable that the Obama administration would negotiate a final agreement that does not secure the release of the three American hostages held in Iran—Saeed Abedini, Amir Hekmati, and Jason Rezaian—or information on the whereabouts of a former FBI agent abducted in Iran, Robert Levinson. The nuclear deal provides Iran access to billions of dollars in unfrozen assets and the almost immediate removal of major U.S. and international economic sanctions on Iran’s financial and energy sectors, followed by the termination of most nuclear-related sanctions on Iran in just a few years. If Iran is unwilling to return American hostages to their families as part of this agreement, then we cannot trust that Iran will act in good faith as sanctions are lifted.

I support peaceful negotiations to prevent Iran from obtaining or using a nuclear weapon, and I kept an open mind about this agreement as it was being negotiated. It’s regrettable that the president has acted disingenuously in his interactions with Congress and continues to treat the Constitution with contempt. Despite the Obama administration’s false rhetoric, the choice here is not between this nuclear deal and war. A better agreement that complies with the Constitution and secures long-lasting peace is possible.

I saw Ted Cruz making the same argument last night on TV.

I guess if you think that elected officials get to define their own duties any way they see fit, Obama is off the hook. Otherwise, it seems that Rep. Amash has a valid set of objections.

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