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.

Obama Issues Veto Threat on Keystone Pipeline Bill...Or Does He?

Townhall.com is reporting a "Veto Threat", but I'm not so sure it's a veto threat.

Look at the language used:

"I can confirm that the president would not sign this bill," Earnest said at Tuesday's White House press briefing after being asked about House Keystone legislation fired earlier in the day.

"We indicated that the president would veto similar legislation considered by the previous congress and our position on this hasn't changed," Earnest said. "I would not anticipate that the president would sign this piece of legislation."

Do you see the difference?

Earnest isn't saying that the President would veto the bill, he's saying the President would not sign the bill. There's a big difference. If the President doesn't sign a bill presented to him within ten days, it becomes law if Congress is not adjourned.

Now, maybe I'm being a little too specific about what the White House Press Secretary said, but I think it's worth considering. After all, the WH Press Secretary is someone who is careful with his words, right? Could Obama take the position that he isn't going to sign the bill, but not veto it? That could be a possible middle ground for him. Could this be possible? Am I onto something?

Or am I just over-lawyering the Press Secretary's words?

The President Is Going to Cut Down a Law or Two Tomorrow

"You know what would be the BEST, most constructive, reaction? For the House to pre-empt the president’s executive action by passing the comprehensive immigration reform that the Senate sent over to it." -Brad Warthen

Sure, I agree. We all like rational stuff. Even if the House doesn't like the current Senate bill, they can always amend it, or just pass their own. What are they waiting for?

Maybe they're waiting for the new Congress to be sworn in. Maybe they're waiting for Christmas. Either way, it doesn't matter why Congress is choosing not to act; that's entirely beside the point. If the President doesn't like the lack of immigration reform bills in the Congress, maybe his party should start winning some elections. Or maybe the President could have done something for the two years he had a super-majority in Congress.

But all of this talk about the President's action and the Congress' reaction also misses the point of this being bad precedent.

The President shouldn't do what he's about to do. There's no broad public support for it. It's against the specific will of the majority of the legislative branch. The legal basis is unsound. There's no national crisis at hand that cries out for drastic action. In fact, the President is actually creating a crisis with this defiant move. It's also not a permanent fix, either. It's theater. But it's theater that sets a horrible precedent of cutting down laws by Presidential order.

But you know...I don't put 100% of the blame on the President. I blame us. The entire Democratic party is thrilled at the idea of this executive action, and it is actively encouraging him to do this. A little less than half of the electorate is excusing the means because they like the end result. There's plenty of blame to go around. The President is going to announce that he's going to ignore some laws tomorrow, and it won't really register for much of the citizenry here in our young little republic.

At the end of the day, we have to have laws that mean things. If the law can just be altered (and non-enforcement is altering the law) then what is left? I know I use this clip all the time, but it's relevant once again.

You start cutting down a little bit of the law here, a little bit of the law there, and pretty soon, a cold wind is blowing, and the Devil will turn 'round on you. Where do you hide then?

Bernie Sanders: "You know what we need? We need to limit that pesky First Amendment."

Yes, that pesky First Amendment has been driving Democrats bonkers ever since the Citizens United and McCutcheon decisions came down from the Supreme Court, basically holding that people can spend money on political advocacy and and give money to as many candidates as they want to.

So let's just limit the First Amendment.

One day before the U.S. Senate votes on a constitutional amendment to restore limits on big money in politics, Sen. Bernie Sanders (I-Vt.) called the drive to undo Supreme Court decisions that gutted campaign finance laws “the major issue of our time” and said Monday’s showdown vote is “a pivotal moment in American history.”

The Democrats like to poke fun at the GOP controlled House of Representatives taking meaningless and purely symbolic votes to repeal Obamacare. And that's fair. Those votes are fairly meaningless and symbolic because they won't pass the Senate, and they for danged sure aren't going to be signed by the President.

But lemme get this straight: The Democrats think they're going to get a two-thirds majority in the Senate and in the GOP House, and then they're going to get three-fourths of the State Legislatures to ratify an amendment to curtail the First Amendment?

Good luck!

While they're at it they should go ahead and propose an amendment to the Second Amendment, too.

Same Sex Couples Apply For Marriage License in Greenville County

Remember my post about the 4th Circuit's decision that overturned Virginia's same-sex marriage ban? If you don't you can see it here.

Well, it didn't take long for same-sex couples in South Carolina to read the tea-leaves. Yesterday, couples lined up for marriage licences in Greenville County. My guess is that they know they'll be denied, and this will form the basis for their suit, which would likely be successful.

Two Recent Civil Rights Victories and Implications for South Carolina

Last Thursday, the United States District Court for the District of Columbia struck down what was essentially a blanket ban on carrying a handgun in DC. [Opinion here]

Basically, DC let you have a handgun in your home for self-defense, but DC had a longstanding ban on possession of a handgun outside of your home. The relevant part of the opinion is here:

In light of Heller, McDonald, and their progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny. Therefore, the Court finds that the District of Columbia’s complete ban on the carrying of handguns in public is unconstitutional.

Frankly, I'm not sure if this means you can openly carry in DC or not. The ruling doesn't say what an individual can do - it only says that the District cannot enforce it's existing laws until the District sets up a Constitutional licensing system. I think to be safe, you would probably not want to carry openly. To me, that's just asking for unnecessary heat.

Also, note: this opinion doesn't touch the specific bans on carrying into specific places like the Capitol grounds, government buildings, etc. Those prohibitions are still legal.  Finally, this ruling prohibits the District from applying the law to non-residents based solely on the fact that they are non-residents. Once a licensing system is set up, I think this will change.

In an update, the District is asking for a stay of this ruling while they either appeal to the next level and/or work to put together a licencing system.

ALSO...IN OTHER CIVIL RIGHTS VICTORIES

Yesterday, a three judge panel at the U.S. Court of Appeals for the Fourth Circuit upheld (2-1) the trial court's decision to strike down Virginia's ban on same-sex marriage. [Opinion here]

This is important because the 4th Circuit covers South Carolina. That means there is now established precedent in our federal circuit for invalidating state laws prohibiting same-sex marriage. I would be very surprised if Plaintiffs from South Carolina are not already in the process of bringing an action. Based on this ruling, I would be surprised if South Carolina's law survives.

To sum up, same-sex marriage advocates and gun-rights advocates both had good days in court, while governments seeking to abridge the rights of citizens had bad days in court.

More freedom is a good thing. As Instapundit says, "in my ideal world, happily married gay couples would have closets full of assault weapons."

With these two decisions, we're one or two steps closer to that now.

Additional Analysis on the Hobby Lobby case

Happy Friday.

If you were interested in the Hobby Lobby post from yesterday, here is some additional analysis from a person who isn't a dummy.

In non-legal news, it's time to clean your outdoor grill. Here's how.

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.

Federal Appeals Court Rules SC Occupy Protesters Have a "Viable Claim"

Remember back when "Occupy" was a thing? It was was back in November of 2011 or so. The protesters who were forcibly removed from the Statehouse grounds back then haven't just gone away. Maybe the Governor should have consulted with Permanent Press first.

Anyway, the Occupy folks have taken their case all the way to the 4th Circuit Court of Appeals, which just decided that the Occupy protesters "have a viable claim" that the State of South Carolina violated their First Amendment rights.

You can read the full text of the opinion here.[PDF]

Here's where I am on this: Let's assume that the State did violate the Occupier's rights by forcibly removing them from the Statehouse Grounds. Ok, so what are the damages? The Occupy protesters want damages for the State violating their First Amendment rights. Well, for you law-geeks out there, there is a whole area of jurisprudence on who to measure such damages. You can read about it at length in this law review article, which just happens to be published by my law school alma mater.

I'm not sure I would award them much money, but I'd be fine with letting them go back to the Statehouse Grounds and protesting as much as they want, as long as they don't fall asleep. Sleeping isn't political speech, it's...well it's sleeping.

All I know is that if Governor Haley had followed my advice and just ignored these people, they'd probably be gone by now.

A Republic, If You Can Keep It...

President Obama had a press conference today in which he explained that he delayed the implementation of a law because he consulted with "businesses". Here's the full quote:

With respect to health care, I didn't simply choose to delay this on my own. This was in consultation with businesses all across the country, many of whom are supportive of the Affordable Care Act, but -- and who -- many of whom, by the way, are already providing health insurance to their employees but were concerned about the operational details of changing their HR operations if they've got a lot of employees, which could be costly for them, and them suggesting that there may be easier ways to do this.

Great. So let me see if I have this correct. Congress passes a bill and the President signs the bill. Therefore, the bill becomes law. Everyone still with me? The ACA (Obamacare) is now the law. I also specifically seem to remember the White House reminding everyone that the ACA is now the law.

Now, part of that law (the employer mandate) is politically inconvenient to implement because it's a giant mess, and it would cause all sorts of chaos if implemented on the schedule that the law requires. Oops! So the President decided to delay that portion of the law.

How, you ask? How could the President simply decide to delay enforcement of a law that has been duly passed by Congress? Simple. He did it "in consultation with businesses". Presto! Laws can now be done away with by consulting with businesses. Congress? Whatever dude, I've consulted with corporations, and they're good with this. Relax!

Actually, I really like this precedent. As soon as a Republican becomes President (It's eventually going to happen) he/she can just "consult with some businesses" who may not like other provisions of the ACA and delay more provisions.

Taxes: Don't like paying your taxes? No problem, I've consulted with businesses, and I've decided to delay the collection of taxes over 20% this year. You're welcome.

Vice: Officer, I did not break the law by hiring a prostitute. I only took action after negotiating with her pimp consultation with businesses.

Nothing like the random, selective, and arbitrary enforcement of our laws for political ends. Yet no one makes a peep. Freedom and liberty? Yeah, it's going to end not with a bang, but with a slow whimper of being devoured by a leviathan administrative bureaucracy.

Experience hath shewn, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.

                                                         -Stuff Thomas Jefferson said, Vol. III

Top IRS Official Will Invoke Fifth Amendment

Per the L.A. Times, Lois Lerner (the head of the exempt organizations division of the IRS) is scheduled to testify before Congress tomorrow. Apparently, she's not planning on saying much.

For those of y'all who don't know, the Fifth Amendment protects witnesses from being forced to incriminate themselves. You don't get to invoke the Fifth Amendment's protection just because an answer would be embarrassing. You don't get to invoke the Fifth Amendment's protection just because an answer would be politically embarrassing. You only get to invoke the Fifth Amendment's protection when your response would expose you to criminal prosecution.

Well, well, well...Everyone was telling me that no crime was committed here. Accordingly, I'm slightly puzzled at why the head of the IRS division would invoke her right to be protected from criminal liability. I hope it's on TV tomorrow. Apparently, she knows something big enough that the old "I don't remember" won't even cut it.

Shit status: real

Sasha Volokh to Speak in Greenville Tomorrow

If you're in Greenville, SC tomorrow (and you're a law-dork), you should go check out Sasha Volokh, who will be speaking at the local Federalist Society Chapter. The event will be at Womble Carlyle's office in Greenville. Sasha is smart as a whip. You should definitely get to hear him speak if you can.

He'll be discussing Minneci v. Pollard and constitutional torts.

NLRB Appointments Declared Unconstitutional

Full text of the opinion here.

Remember when the President made the appointments to the NLRB by taking the position that a "pro forma" session of the Senate didn't actually count? Yeah, well the DC Court of Appeals considered that issue, and guess what? Our genius-level, three-dimensional chess playing, Constitutional scholar was wrong.

The three appointments made to the NLRB have been declared unconstitutional.

Here's the money part of the opinion:

Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.

Basically, pro-forma sessions mean the Senate is "in Session". Like everyone said. If you don't like an NLRB decision made after the appointment of those members, you can successfully challenge it. You think that anyone out there might object to some of what the NLRB has done recently?

That sound you're hearing from Boeing is not jet engines. That would be Boeing's lawyers revving up their word processors.

Someone much smarter than me (at Volokh) says this is heading to SCOTUS.

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.

George Washington's Personal Copy of the Constitution

If you're a history dork (like me) and have a couple of million dollars that you don't know what to do with (not like me) you might be interested in bidding on President George Washington's personal copy of the Constitution, the Bill of Rights, and other Acts from the First Congress.

I'm sure Ezra Klein isn't interested in some old confusing document, though, so at least you know he won't be bidding against you.

Notre Dame Files Suit Against HHS Regulation

The University of Notre Dame has filed a lawsuit in U.S. District Court against the Obama Administration's Department of Health and Human Services. The University claims that the federal government of the United States does not have the power to force it to provide for or pay for services (birth control) that violates its own conscience.

“We do not seek to impose our religious beliefs on others; we simply ask that the government not impose its values on the university when those values conflict with our religious teachings,” University of Notre Dame President Fr. John Jenkins, C.S.C., said in a May 21 letter.

I'm honestly surprised that Obama is fighting this battle. I know he is going to try and spin this as a "war on women" but the funny thing about Court is that Judges don't really put up with "spin". They kind of have this hang-up for legal arguments. HHS is going to lose this suit. They cannot force a religious group to violate their beliefs. It doesn't matter what those beliefs are. If you doubt me, I would refer you to this.

Talk about shaking down the thunder. Notre Dame is stepping right into the center of what is going to be a very controversial issue, but that's what people do over matters of conscience and principle.

I wonder how Notre Dame is feeling about awarding Obama that honorary degree now.

Thanks for the degree, suckers. 

Rep. Trey Gowdy Grills Secretary Sebelius

Via the NY Sun, this five minute video shows local upstate boy, South Carolina Representative Trey Gowdy, absolutely destroy Secretary of HHS Kathleen Sebelius. This really highlights the divide between the parties today:

Imagine that. A lawmaker wants to talk about the law.

I want to puke when she says that she doesn't pretend to understand the nuance of Constitutional law. She understands it fine - she just doesn't give a damn. Her goal is to advance contraception/healthcare/whatever she wants in any manner that she can regardless of the Constitution.

On a related note, what kind of idiot wants insurance coverage for birth control? Birth control is a regular, predictable, and recurring expense that people have. Insurance is for irregular, unpredictable, and catastrophic expenses that can be spread out over a large group.

Asking for insurance to cover your birth control is like asking for insurance to cover your deodorant.

Great Minds Think Alike

On Monday, I mentioned that someone should educate our President on judicial review. Interestingly, a Federal Judge noticed the same remarks and came to the same conclusion I did:

In the escalating battle between the administration and the judiciary, a federal appeals court apparently is calling the president's bluff -- ordering the Justice Department to answer by Thursday whether the Obama Administration believes that the courts have the right to strike down a federal law, according to a lawyer who was in the courtroom.

 Great minds think alike. Either that or a Federal Judge is reading my blog.

So, it looks like the President just got assigned a book report on Marbury vs. Madison. You think that he would come out and say "I certainly believe in judicial review, and I hope that the Justices agree with the Solicitor's arguments and uphold the ACA. Next question." That's all he needs to say. It's not hard. But noooooo....he has to double down on stupid. Here's our President's response when asked about judicial review:

Well, first of all, let me be very specific. We have not seen a Court overturn a law that was passed by Congress on a economic issue, like health care, that I think most people would clearly consider commerce — a law like that has not been overturned at least since Lochner. Right? So we’re going back to the ’30s, pre New Deal.

He couldn't just leave it alone. His ego is way too big for that. He's got to prove that he's the smartest guy in the room. So, he finds a widely disliked case (like Lochner, Plesssy, ect.) and basically says that if you decide against the ACA, it's going to be just like Lochner. The Horror!

The problem is, the opinion in Lochner held that the Due Process Clause of the Fourteenth Amendment protects a robust right to "liberty of contract". It was subsequently overruled. Notice anything about the commerce clause? Neither did I. That's because Lochner isn't a commerce clause case. It isn't applicable to the current discussion.

So if you come across anyone who tries to tell you that holding the ACA to be unconstitutional will be a revival of Lochner, ask them if they can explain the holding. I betcha they can't. Even if they're the President.

Someone needs to tell the President about the first rule of holes.

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.