Thoughts From Reading the King v. Burwell Transcript

I took a little time to read the transcript from today's Supreme Court oral arguments in King v. Burwell.

If you want to read the transcript, you can find it here. It's always a dicey proposition to read anything into how the Justices will rule from their questions/comments at oral argument, but here are a few of my impressions:

1. Justice Ginsburg immediately jumped on the issue of standing from the get-go. After some back and forth, and with what ultimately seemed like a concession from the Government, the likelihood of kicking the case out on a lack of standing seems extremely remote.

2. Justice Kagan seemed to have gotten the better of Petitioner's counsel with her hypothetical about law-clerks and memo writing, but Alito jumped to the rescue with such a good response that even Kagan remarked of Alito "He's good."

3. The real question seems to be where Justice Kennedy is going to land. He seems to want to say that the Petitioner's argument necessarily requires the conclusion that conditioning subsidies on states setting up the exchanges is coercive, and would therefore be unconstitutional. Obviously, this would result in disruption of everyone who got a subsidy in the states where HHS set up the exchanges, and Kennedy seemed loathe to make that leap. Petitioner's counsel responded to Kennedy by observing that the government hadn't made that that argument, and Kennedy says "Sometimes we think of things the government doesn't".

4. Carrying that last point further, the real question seems to be whether Kennedy is willing to interpret the statute in a manner that avoids having to find the statute to be unconstitutional under the avoidance doctrine. I think that Kennedy wants to say it's unconstitutional, but I think he's concerned with the resulting effects of what happens if he makes that finding. Ultimately, I think he'll avoid doing so, and the Government's position will prevail.

5. The Government's counsel took a little bit of a shot at Congress when Justice Scalia pressed him on why the Congress wouldn't just amend the statute if the Court accepts the Petitioner's position. Scalia says "You really think Congress is just going to sit there while ­­ while all of these disastrous consequences ensue?" and the Government's lawyer responds somewhat tongue-in-cheek with "Well...this Congress, Your Honor? I...I..." to which there's some general laughter at Congress' expense.

Ultimately, I think the Government will win this because I think the easy place for Kennedy to land is that there is a little bit of ambiguity in the statute, so you go with the interpretation that doesn't render the statute unconstitutional. That' just my guess, anyway. I would be surprised if the Court did something radical and essentially forced Congress and President Obama to fix the law.

Justice Ginsburg Did Some Pre-Game Drinking for the SOTU

Can you really blame her?

Honestly, if I had to sit through the entire SOTU, I'd want to drink during the speech.

Supreme Court Accepts Obamacare Subsidies Case

Remember the Halbig case? Well, that issue is now going to the Supreme Court. Just today, the Supreme Court accepted a case (King v. Burwell) which is the same question.

Interestingly, with King, the lower court ruled that the subsidies apply everywhere, so the administration won. Don't forget, the Supreme Court doesn't have to take this case. They could have just refused to take it and let that decision stand. However, SCOTUS decided to take the case, and you need four votes to accept a case.

So are there now four votes to overturn King and say that the ACA does not allow for subsidies to federally established exchanges? Perhaps so. That would be big.

This could be a very interesting case to watch.

AG Wilson Asks SC Supreme Court to Address Issue of Same Sex Marriage In South Carolina

UPDATE: The SC Supreme Court has issued an order, which basically stays all SC probate courts from issuing marriage licenses to same-sex couples until the federal court litigation is resolved. The status quo ante of no same-sex marriage will remain in place.

If you're following the same-sex marriage news these days, you've seen a lot of action in South Carolina this week.

First, on Monday, the United States Supreme Court decided not to hear a case that involved same-sex marriage, with the implication being that SCOTUS wasn't going to overturn a decision banning same-sex marriage. Everyone basically interpreted this to mean that SCOTUS wasn't going to support any ban on same-sex marriages.

Accordingly, on Wednesday the Charleston County Probate Court started accepting applications for marriage licences to same-sex couples. Note, this is different than actually granting the marriage license, but it's tantamount to doing so.

Also on Wednesday, there was a rally at the SC Statehouse to support what the Charleston County Probate Court was doing. At the rally, the supporters of same sex marriage encouraged same-sex couples to apply for marriage licenses throughout the state of South Carolina. Additionally, the group called on Alan Wilson to simply do nothing and not file any action to enforce the provision in our State Constitution banning same-sex marriage.

However, Alan Wilson decided that he was going to ask the SC Supreme Court to resolve this issue. His filing is here. [PDF]

I think that's the right move by Alan Wilson. We have a law. In fact, it's part of our State Constitution. We can't just ignore it without a court formally declaring it to be invalid. If you go read the petition that Wilson filed, that's basically what he's saying.

"Moreover, a public official may not refuse to follow State law because 'he thought the law unconstitutional.' It is, instead, his or her duty to 'follow it until judicially declared invalid.' Trustees of Wofford College v. Burnett, 209 S.C. 92, 104-5, 395 S.E.2d 155 (1946).

This is about the rule of law and legal process. We can't just have Probate Judges in each county deciding if they are or are not going to follow the law. Once the law is ruled unconstitutional, which it will be, then the Probate Courts can issue licences - not before.

Alan Wilson is doing the right thing by filing this petition.

You can't skip steps.

NY Times Legal Analyst Writes Column to Make Democrats Feel Better About Things

That's basically all I can think of to say about her piece analyzing the Noel Canning case, because there's no other logical explanation.

Protip for all you non-legal scholars out there: When one side loses a case 9-0, it's not a victory.

Thoughts on Halbig, the ACA, and Suing the President

Had an interesting post bring up some thoughts over at Brad's blog. This is what got my train of thought rolling:

"I think what he [The President] did was react to criticism and complaints, and try to make the implementation less onerous and painful to those complaining, or likely to complain. To give the law a chance to start working, if only partially. Whether he had the authority to postpone implementation of parts of the law is something I don’t know enough to judge." -Brad

Complaints and criticism of a law do not convey authority to the executive branch to delay enforcement of existing law. I hope that's a fairly non-controversial statement. If you disagree with that proposition, then you'll be happy to know that in a Caskey Administration, I may choose to simply delay enforcement of the capital gains tax, or delay enforcement of the minimum wage laws. How does that sound? Not so great, right?

The executive (on multiple occasions) has unilaterally delayed the enforcement of the employer mandate. That's a fact. No part of the ACA allows this.

I think it's fairly obvious that he did it solely for political purposes, but I would certainly concede that to be my opinion. Nevertheless, the motive for delaying enforcement of the law is irrelevant for our purposes here.

Some more history: The Republicans do not like this law. They have never liked this law. Not one Republican voted for this law. In fact, the law had to be pushed through Congress using arcane rules to avoid a conference committee after the election of Scott Brown, on the platform of opposing the ACA.

Congress basically ignored the will of the people and did an end run around the normal procedures of legislation to produce this law. It's now the law, after surviving a constitutional challenge ending at SCOUTS, on a 5-4 decision.

So here we sit. The supporters of this law are now so dedicated to holding onto it, they are willing to chuck principles aside to keep it.

For instance, people are willing to simply let the executive pick and choose what parts of the law he wants to selectively enforce so as to not subject the public to the full force of the law as written - which would arouse the anger of the public, and be politically negative for Democrats. This is short term political gain, for long term bad precedent. It's bad precedent to allow the executive to selectively enforce any law. If you think selective enforcement of the law is OK, then you really haven't thought it through.

Additionally, the Halbig suit: The relevant statutory language says that only state exchanges get the subsidy. It's clear. That's what the text of the law says. However, if you do that, then the law essentially collapses, as a significant number of states didn't set up exchanges.

Obviously, the people who wrote the law never considered that states might simply refuse to set up exchanges. (To quote Rick Perry: "oops") The non-lawyer defenders of the ACA are now reduced to saying "Hey, man, it was a typo" while their lawyers are saying "Ummmm yeah....this text is ambiguous, so we need to rely on Chevron Deference to the IRS in it's rule-making authority here" (What the Fourth Circuit did.) To me, the first argument is laughable, and the second argument is weak to the point of being almost laughable.

Now, Brad may not have heard about this lawsuit, but people have been talking about it for a long time. Pretty much since the law was passed, and as Nancy Pelosi said "We learned what was in it". This isn't new.

Halbig only became a problem now that lots of states have refused to set up exchanges. But normally, issues like Halbig aren't a problem, because the executive just goes back to Congress and they pass a new law to make some changes. However, the executive doesn't want to do that, because that would mean negotiating with the Republicans, and that's apparently not on the table.

Accordingly, rather than openly acknowledge the problem and concede that the law needs additional legislation, you have the executive defending a tenuous legal position and hoping the Courts will hold their nose and bail him out, since he doesn't want to involve the legislative branch in the legislative process and involve the will of the people again.

Keep in mind, Halbig isn't a constitutional question. It's simple statutory construction. The Supreme Court has pretty consistently ruled that statutory construction pretty much starts and ends with WHAT DOES THE FOX TEXT SAY? We write down laws with words, with a commonly understood meaning for a reason, sports-fans.

It's the job of courts to read statutes as written. If they need fixing rather than reading, that's the job of Congress. I really don't think that SCOTUS is going to bail out the administration on this. I can bore you with some law on this, but just take my word for it that this isn't a controversial issue when you boil it down to the statutory construction. If SCOTUS grants cert, my guess is they'll uphold the statute as written and basically tell the government to go fix it on their own - using the legislative process. That's just my guess. Anything's possible. (By the way If you don't believe judges should be originalist/textualist, then I don't see how you can also want them to be life-tenured & unelected, but that's a whole 'nother debate.)

Now....why are the Republicans doing this? They want the law enforced as written to highlight how horrible it is and to highlight the bad precedent being set here. Ulysses S. Grant said: "I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution."

That's basically the premise here. You want the ACA? Then take it. Take it good and hard.

Having said that, I think the Congressional suit against the President is stupid. Congress doesn't need to sue the President. Congress is the most powerful branch of government. They are just refusing to flex the muscle. It's called the power of the purse. (Stuff Madison Said, Vol. II)

Some Thoughts on Hobby Lobby and Why Liberals Fail at America

Now that the long holiday weekend is over, it's back to work. That meant I had a full day today, so no time for blogging until now. I haven't blogged much here on the Hobby Lobby case.

If you go over to Brad's post on that case,I probably wrote more over there than I have over here. In any event, I've covered the legal aspects of the case over there, and I don't really care to rehash that aspect. What I've been mulling over the weekend was the absolute freakout that the left had over the decision. Frankly, it doesn't seem that earth-shattering to me. What really puzzled me was all the hair-pulling, wailing, and gnashing of teeth. I saw all that and thought....really? Um, ok.

It puzzled me that people are aghast to discover a law called the Religious Freedom Restoration Act (RFRA) protects religious freedom. The whole reason you pass a law like this is to protect religious freedom and give them accommodations. That's the whole point. But then, this upcoming point was made on Ace's podcast, and it bears repeating here, on this much less frequented corner of the internet, because it clarifies the issue.

The whole point of RFRA is to make special provisions, and to make accommodations with different beliefs. Because normally, the majority of a group finds it annoying to have to make these accommodations.

Accordingly, we passed a law about it - the RFRA. For instance: If a guy at your job site is a Muslim, then he may have to take a break three times a day to pray to Mecca. Obviously, not everyone gets this break. The rest of you guys have to keep digging the ditch. But to get along with the Muslim guy and be tolerant, we've decided, with RFRA, that we are going to respect that this guy has a belief system that isn't what everyone else's belief system is. Therefore, we're going to cut him some slack from the general rule that you don't get three breaks a day to pray in the direction of Mecca.

And for the most part, liberals are seeming fine with some of these special exceptions. But as soon as you have just one special exception that goes against their belief system, they want to crush people and impose their will on them. And then when you point out that the law also protects this religious group, all the liberals start yelling: "What the hell!, Now we're making laws for EVERY SINGLE RELIGIOUS GROUP?? It's going to be like ANARCHY here!" Well....that's kind of what the law says. What did you think the law said?

And that goes into the main point: One of the things that most people think was a good quality in liberals is that they wanted to protect the minority from the tyranny of the majority. I did. I kind of thought that it was a good thing that liberals at least thought about that problem a lot. They always seemed worried about a small group getting steamrolled by the conventions of the larger group.

But...it turns out that liberals don't really think about that. They don't really care about small groups having their own little exceptions if it the small group isn't part of their voting coalition. It was never about principle for liberals. For them, it's purely a transactional process for members of their voting coalition. LIberals are not fighting about the principle of the minority, because when it gets extended to a Christian, they're aghast, and they want to overturn the RFRA. They don't believe in the principle of protecting this religious minority. This whole thing has been very revealing for me.

I've seen liberals basically say that they don't support pluralism of viewpoints in general. They support specific exceptions and accommodations for people in their voting coalition - and that's it. It's not that liberals are principled and good people, they've just decided to do favors for people who vote like them.

And I hear these liberals say, If only these trouble-making Hobby Lobby Christians could be could be forced, somehow coerced by the government, to behave properly, then we wouldn't have these problems!

They fail at America.

Kennedy's Concurring Opinion Explained In a One-Act Play

While waiting on hold (with a government office) I had time to compose this short play, which I call: Kennedy’s Concurring Opinion. I hope you all like it.

HHS: Welcome to our office here at HHS. Here, drink some coffee.

Hobby Lobby: I only drink decaf coffee, but I see you have some of that. Since you have that available, I’ll take that.

HHS: Decaf coffee is for other people, not you! Drink this regular coffee! Do it!

Hobby Lobby: Look, you’ve got plenty of decaf coffee for everyone. It’s right there. Can I just have some decaf?

HHS: We get to decide what kind of coffee you get. Now drink this regular coffee!

Hobby Lobby: Hey…I didn’t come here to argue. If this is going to be a problem, I’ll just leave.

HHS: No. You’re not going anywhere. You’re going to sit here and drink some coffee, and it’s going to be regular!

Hobby Lobby: Ummmm….can I speak to your supervisor or something?

Supervisor Kennedy: What’s the problem here?

HHS: This person won’t drink the regular coffee. They’re demanding decaf!

Supervisor Kennedy: What’s this marked “Decaf" right here?

HHS: That’s decaf coffee.

Supervisor Kennedy: Looks like you have plenty of decaf. And didn’t I just see you give decaf coffee to the last person?

HHS: Yeah, but the last person was wearing a suit, and this guy is sitting here wearing a t-shirt!

Supervisor Kennedy: Seems kind of arbitrary if you ask me. You’re telling me that you made all this coffee, and made both decaf and regular, so as to give it to people who came to your office, but you don’t want to accommodate this particular guy’s choice?

HHS: Yes.

Supervisor Kennedy: Give this guy some decaf.

/scene

How Do You Correctly Pronounce "Certiorari"?

Even the Justices of the US Supreme Court can't agree.

Yet another sign of a divided U.S. Supreme Court: The justices cannot even agree on how to pronounce the word “certiorari.”

A new and somewhat whimsical research article reveals that justices are “profoundly divided” into at least six camps on the proper way to say that Latin word.

“There was only one point of unanimous agreement,” legal scholar James Duane wrote in the latest edition of The Green Bag legal journal. "They all pronounce the beginning of the word “ser,” presumably because of its obvious resemblance to certain."

I'd be interested to see how the South Carolina Supreme Court Justices come down on pronouncing it. I think we would certainly say it a little more slowly and maybe let the ARRR sound lengthen out a little bit, softening and rounding out the word.

Sounds like a good research project for a law clerk.

The Hobby Lobby Case and Jeffrey Toobin Continuing His Hackery

UPDATED IN BOLD TO GET A LITTLE MORE TECHNICAL/LEGALISTIC

Awhile back, I wrote a post called "Jeffrey Toobin Is a Hack". I was reminded of this when Ann Althouse wrote a post today on a similar topic: Toobin's Hackery. Althouse calls his piece on the Hobby Lobby Oral arguments "embarrassingly bad" I commend it to you only to demonstrate that my opinion of Toobin's hackery abounds all over the internet.

Anyway, you don't come here to get bad analysis, so if you want some actual, good analysis of the Hobby Lobby case, I am going to send you over to SCOTUSblog. 

My short and sweet thought is that an employer's failing to pay for an employee's preferred form of birth control is not a denial of that employee's ability to use that form of birth control. The employer not preventing the employee from using the birth control, the employer is simply saying they won't pay for it.

And that's fine.

But now you have a law (Obamacare) that says employers have to provide basically every type of birth control. And to be really technical about it, the actual law doesn't say that. HHS is issuing regulations that say this because Congress didn't explicitly want to take the heat for mandating the birth control requirement. This is an important issue, because regulations issued by HHS can be changed...by HHS. Regulations aren't as strong as federal statues.

So now, you have an employer (Hobby Lobby) that claims a sincere religious belief would be violated by complying with the regulation promulgated under the law, but claiming protection under a federal statute.

And so now you have a complicated problem. You have to balance the employer's religious beliefs against the compelling government interest (the regulation). Also, you've got to deal with a federal law (the Religious Freedom Restoration Act) passed in 1993 that basically says you have to apply "strict scrutiny" to laws that burden religious views, even if the law is religiously neutral - which is what we have here.

Note, the government's position concedes that the RFRA applies to for profit corporations, but they're basically asking the Supreme Court to ignore that.

Strict scrutiny is basically a death knell for anything that has to pass through it, so my guess is that the Court will apply the RFRA and issue a very narrow decision allowing Hobby Lobby an exemption based on religious grounds.

One big problem for the government is getting out from under the RFRA, and Toobin doesn't even mention the statue in his stupid little write up!

Also, It's not going to help the government's case that so many other waivers have been granted. It's hard to argue that there's a compelling government interest in this specific case when the government itself has given other entities a pass.

But that's just me.

SCOTUS Strikes Down Portion of the VRA

SCOTUS has just declared part of the VRA unconstitutional. Full text of the opinion is here (PDF). Here's the meat of the decision (in my humble opinion):

The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future. See Rice v. Cayetano, 528 U. S. 495, 512 (2000) (“Consistent with the design of the Constitution, the [Fifteenth] Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment.”). To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past. We made that clear in Northwest Austin, and we make it clear again today.

Striking down an Act of Congress “is the gravest and most delicate duty that this Court is called on to perform.” Blodgett v. Holden, 275 U. S. 142, 148 (1927) (Holmes, J., concurring). We do not do so lightly. That is why, in 2009, we took care to avoid ruling on the constitutionality of the Voting Rights Act when asked to do so, and instead resolved the case then before us on statutory grounds. But in issuing that decision, we expressed our broader concerns about the constitutionality of the Act. Congress could have updated the coverage formula at that time, but did not do so. Its failure to act leaves us today with no choice but to declare §4(b) unconstitutional. The formula in that section can no longer be used as a basis for subjecting jurisdictions to preclearance.

Just counting noses, Chief Justice Roberts, wrote this opinion, joined by Thomas, Alito, Scalia, and Kennedy. Justice Ginsburg wrote a dissent, which was joined by Breyer, Sotomayor, and Kagan. So Kennedy is the swing vote yet again. History doesn't always repeat itself, but I'm told that it rhymes.

I think this means that until Congress updates the coverage formula, the preclearance requirement is void. Accordingly, if Congress wants to have a functioning VRA, they're going to have to update their numbers. Don't hold your breath for that to happen.

On a practical level, if you are a state that would be subject to the preclearance requirement of the VRA (like South Carolina) now would be the time to pass laws about voting - you don't have to ask permission from the Federal government. For instance, SC could have waited a little bit on the Voter ID law, and we wouldn't have had to deal with the feds poking their nose into it.

George Jones and Clarence Thomas

NPR has the piece. Here's the letter:

Here's the song.

Summary of Obamacare Opinion

Too busy to read the 193 page opinion? Here's a two sentence sumamry:

The commerce clause doesn't allow Congress to just do whatever the hell wants. However, Congress can tax whatever the hell it wants.

You know, Courts are funny. The lawyers get all worked up about a certain issue and the Court comes out and issues a decision on the basis of what everyone else thought wasn't a great argument. That's happened to me before.

Full Opinion Here.

If you don't like people in Congress telling you what to do and taxing you, don't elect those kind of people to Congress. The Court isn't going to save you.

Supreme Court to Decide ACA Fate on Thursday

Per SCOTUSBlog, the Supreme Court will be issuing it's decision on Obamacare on Thursday at 10:00AM. Should be an interesting week. My official prediction is a 5-4 decision (Roberts writing for the Court) striking down just the individual mandate.

I'm reminded of the old Chinese curse along the lines of "May you live in interesting times". The big spin will be how the decision (whatever it is) impacts the Presidential race. Just a wild guess here, but look for both sides to declare the outcome to be beneficial to them.

Who is the Chief Justice?

If you said "John Roberts", you're in the 28%. This is an amazing chart:

I can certainly believe that 53% of people don't know who the Chief Justice is. I totally buy that. What I cannot fathom is 8% of people who think Thurgood Marshall is the current Chief Justice. He's dead. Has been for awhile. Also, was never the Chief. But hey, you at least named a Justice.

The people who answered with "Harry Reid" should not be allowed to vote. Or we could deport them. Yeah, let's just deport them. They probably wouldn't know the difference.

Why This Blog Will Never Be Big

Here's why I'm not going to make it big on the blogging-world: My last post was about a basketball team running a football play (awesome, by the way), and now I'm going to talk about judicial activism.


All the really successful blogs are little niche-type blogs. You get your sports news here, you get cool military photos there, and you get daily cute puppies here. (Seriously, check out the puppies.) 


Every good blog fits into a nice little category. However, since I do this for me - I'm going to switch gears just a tiny bit. A little. I actually was going to get off the political/legal issues for awhile. However, when I hear the President say this, I want to throw something at my television:

"For years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint - that an unelected group of people would somehow overturn a duly constituted and passed law," Obama said. "Well, this is a good example," he said. "And I'm pretty confident that this Court will recognize that and not take that step."

This is weapons-grade stupid on several levels, so it actually pains me that everyone things our President is so smart. Maybe since he's so smart, he should have done the oral arguments.

First,  the term "judicial activism" is whatever you don't like the Court doing. It's different for everyone. It's just a cop-out argument. People on all sides of issues use the word. If you don't like the Court's opinion, you call it "judicial activism". It's just a label, and it's almost meaningless, because it's been used to mean so many different things. All you have to know is that when you hear it, the person saying it means decision of the court = bad. So congratulations Mr. President, you have a buzzword. Kudos to you.

Second, what the hell does "duly constituted and passed law" mean? Really. Put the teleprompter down, slowly back away, and tell me what it means. I'll wait.

Think about this: "duly constituted" as opposed to what? A random guy snuck into the Capitol and put the bill into desk drawer? A guy from your bowling league gave it to you over a plate of nachos? All it means is that some Congressmen talked about it in a meeting. Which brings us to: "and passed law". It passed because Congress took a vote. Congratulations kids, you took a vote! Well that is the end of the analysis under super-duper smart President. They voted on it. End of analysis. Okey-dokey.

Congress wrote something down and then took a vote = duly constituted and passed law.

This isn't the legal standard. It can't be the legal standard. It's not even close to the legal standard. You know why? Because every law that the Supreme Court has found unconstitutional on substantive grounds  was a duly constituted and passed law. Here are two other laws that were duly constituted and passed:

The Judiciary Act of 1789 (Marbury vs. Madison)

Jim Crow Laws (culminating in Brown vs. Board of Education)

Whoa! You mean the Supreme Court doesn't just defer to laws that were duly constituted and passed! That's so crazy! Taking a vote in Congress isn't the end of the test?

If we did what our President is advocating, we don't even need a Judiciary. We can send them all home. If a legislature duly constitutes and passes a law...that's all we need under our President's theory. However, the way the Constitution is set up is that the branches of government have this relationship - checks and balances. You may have heard of it, it's kind of a big deal around here.

Someone get our President a copy of Marbury vs. Madison. Oh and highlight this part for him, in case he's not as smart as everyone says he is.

Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.

FYI, it's not judicial activism if the theory of striking down a law is that it is repugnant to the Constitution.

The Supreme Court: Taking Congress out behind the woodshed since 1803.

Willful Congressional Ignorance

I wish I was making this up. Via Volokh, some of our elected officials in Congress were asked their opinion of the health care law and the constitutionality of the law. Their responses:

Rep. Conyers cited the “Good and Welfare Clause” as the source of Congress’s authority [there is no such clause].
Rep. Stark responded, “the federal government can do most anything in this country.” [Skip to 2:40 mark]
Rep. Clyburn  replied, “There’s nothing in the Constitution that says the federal government has anything to do with most of the stuff we do. How about [you] show me where in the Constitution it prohibits the federal government from doing this?”
Rep. Hare said “I don’t worry about the Constitution on this, to be honest [...] It doesn’t matter to me.” When asked, “Where in the Constitution does it give you the authority …?” He replied, “I don’t know.”
Sen. Akaka said he “not aware” of which Constitutional provision authorizes the healthcare bill.
Sen. Leahy added, “We have plenty of authority. Are you saying there’s no authority?”
Sen. Landrieu told a questioner, “I’ll leave that up to the constitutional lawyers on our staff.”

Holy crap, that's some scary stuff. Remember that everyone one of these people took an oath to "Preserve, protect, and defend, the Constitution of the United States". And then one guy says that it "doesn't matter" to him? That's galling. At least lie to me a little bro, You're a Congressman, so you should at least be able to do that, right? Just lie to me a little. Say you really really care about the Constitutionality of a law, and at least try to sound convincing.

This is just something to keep in mind when you hear arguments that the Supreme Court is being asked to defer to the constitutional wisdom of another co-equal branch. I'd love to know what our Supreme Court Justices think of the chuckle-heads in Congress.

In defense of our elected officials, YOU voted for these idiots.

Oral Arguments and What they Mean

I wanted to listen to the audio of the oral arguments before I commented. Having done that, I thought the news coverage of the case was extreme. Everyone from Toobin (who is a hack) to Wolf Blitzer (don’t you love his name?) to the folks all over MSNBC basically said some version of this:

Solicitor General Donald B. Verrilli Jr. should be grateful to the Supreme Court for refusing to allow cameras in the courtroom, because his defense of Obamacare on Tuesday may go down as one of the most spectacular flameouts in the history of the court.

                                                                                        (Full Article Here)

 I listened to the oral argument. Verrilli didn’t do that bad. Everyone these days is used to seeing lawyers in movies and on TV shows have these amazing closing arguments. Everyone expects you to be MatthewMcConaughey, in A Time to Kill.

I hate to kill your buzz, boys and girls, but the actual legal world isn’t like the movies. It’s kind of dry, it’s not dramatic, and it’s usually conducted in a run-down government building. Judges ask tough questions, and sometimes there isn’t a really good answer that it both profound and witty. Sometimes even the best lawyers lose their train of thought. Accordingly, everyone needs to kind of chill out about the "style-points" of the whole thing.

Also, any lawyer who does a fair amount of appellate work will tell you that oral argument doesn’t really win or lose the case. Sure, if you make the best oral argument in the history of the world (or the worst) it might influence a vote. However, the reality is that the Judges/Justices at the appellate/supreme level have already read your written briefs, thought about the question presented, had their law clerks research the issue, discussed it, and have probably formed their own opinion already.

Here’s my analogy for all you non-lawyers: An appellate case is like building a wooden fence. Your written work (the briefs), and the substantive law are the wood and the nails. You put the fence together with the wood and the nails. You try to make sure there aren’t any gaps in the fence, that each board is straight, and you nail it together tightly. Oral argument is deciding what color you’re going to paint the fence. If you accidentally spill all the paint, you still have a fence – it’s just not as pretty as you would like it to be.

Consequently, all this wailing and gnashing of teeth about how “bad” the solicitor general sounded during oral arguments is fluff and it's nonsense. However, the news media has to say something, so this is what they’ve decided to fixate on.

You don’t have to do any deep thinking about the merits of the law if your big takeaway is: That guy sounded like an idiot. But we all know that the news folks aren’t in the business of serious analysis. That would be too hard, bro.

They don’t want to talk about why the fence might have a bad foundation, the history of fence building, how the fence could be flawed, or what other kinds of fences built like this would mean for us. They just want to focus on: Wow, that’s an ugly looking fence.

Another possible angle is that all the defenders of the health-care law and the media (but I repeat myself) are looking for a potential scapegoat. If SCOTUS kills the law, the defenders can then point to Verrilli and say “Hey, the law is constitutional, we just had a moron argue it.”

In fact, if SCOTUS kills the law, I personally guarantee you that some news-person will put that theory out there. They’ll have no problem throwing him under the bus to preserve the idea that the law is valid.

The News: If you’re looking for substantive analysis – you’re looking in the wrong place.

Actual Valor, Stolen Valor, and Harm

First, a great example of actual valor via Blackfive:

As an aside, whenever I see video of Reagan, I realize how small our current President is by comparison. 

In any event, this video an example of valor. It illustrates what appeasement brings, and what happens when you refuse to be an appeaser. People who don't like the military often fail to realize that the peace they enjoy is because other people are ready to do what is necessary. Too often, we fail to realize how much is being done by our military so we can sit back and complain about politics, the weather, and go about our lives. They can't have too much recognition for what they do. Which brings me to the stolen valor...

The Supreme Court just heard oral arguments in the case of US v. Alvarez, which is a challenge to a 2006 law that made it a crime to make false statements about being awarded a military honor. Alvarez had lied about receiving the Medal of Honor, and challenged the law on first amendment grounds.

As a threshold matter, regardless of whether you think the law passes constitutional muster, this guy Alvarez deserves a tarring and feathering. He's a scumbag. Someone who lies about being awarded a military honor is pretty much as low as it gets (for me).

However, it's an interesting question that he poses: "Do you have a protected first amendment right to knowingly tell a lie about yourself?" The Supreme Court seemed unpersuaded that this sort of speech had much "value". I agree with that. However, what is very hard for me to articulate (as it was for the Government) what exactly the harm is. Speech can be punished where there is a harm; perjury, defamation, intentional infliction of emotional distress, etc.

However, the harm done by asshats lying about being awarded military honors is more diffuse. There isn't someone that you can point to and say: "That person has been harmed". The veteran who charged up Iwo Jima to be awarded his medal has not lost any of his honor. Maybe one of my intrepid readers can articulate the harm, but for me, I'm comfortable with "I know it when I see it". For me, there's absolutely no value to this speech, it isn't likely to chill any legitimate speech, and the Congress thought there was enough harm being done to pass a law (because Congress is so wise, right?).

For all you lawgeeks, you can read the transcript of the oral argument here. If nothing else, read it for the hypotheticals that the Justices throw at the lawyers. I went into this transcript very confident that this  would be a legitimate law, but now, I'm not so sure.

Justice Breyer Robbed!

This seems like it was kind of a close one and could have been much worse.

Police confirmed that on Thursday (Feb. 9) night sometime after 10, a masked intruder wielding a machete robbed a sitting U.S. Supreme Court Justice at his Golden Rock vacation home. 

According to information reaching this media house, the robber stole a total of about US$1200 and fled the scene without further confrontation.

The Judge, The Observer was told, is a regular vacationer to the island and was traveling with his wife and several friends on this sojourn.

Here's the local newspaper story. Wow. Can you imagine how close we were to Obama having another SCOTUS appointment and in an election year? I'll have to start following Breyer's opinions now to see if he's a little harsher on any appellants who were machete-wielding robbers. Cert denied, bro.