FedSoc Blog

Same-Sex Marriage Petitions Denied

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by Publius
Posted October 06, 2014, 9:06 AM

Same-Sex Marriage Petitions DeniedSCOTUSblog reports:

Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the [same-sex marriage] controversy at this point, because there was no disagreement among the lower courts on that issue.

Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions:  Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic (Virginia); and Smith v. Bishop (Oklahoma).

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Epstein: WSJ’s Improbable Defense of Judge Lamberth’s Indefensible Decision in Perry Capital

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by Publius
Posted October 03, 2014, 9:07 AM

Epstein: WSJ's Improbable Defense of Judge Lamberth's Indefensible Decision in Perry CapitalIn Forbes, Richard Epstein comments:

My recent post on Forbes.com expressed my deep dissatisfaction with the thunderbolt that Judge Royce Lamberth launched (without argument or discovery no less) in Perry Capital LLC v. Lew  against the private shareholders of Fannie Mae and Freddie Mac when he sustained the 2012 full dividend sweep under the Third Amendment to the original 2008 Senior Preferred Stock Purchase Agreement. This morning, Judge Lamberth’s decision received a full-throated defense that reads as if it was published in Revolution Magazine, but which in fact appeared on the normally level-headed editorial page of the Wall Street Journal.  Ominously entitled, Godzilla Defeats the Thing, the Journal heaps lavish praise on Judge Lamberth for exposing the shareholder “scam” that in its words “combined dubious legal reasoning with junk economics.”

Really? The gist of the Journal’s argument was that both Fannie and Freddie would have been dead in the water without the $188 billion bailout that they received from the United States Treasury. The real question is what follows next.  In the eyes of the Journal, once the original bailout was given, the government could have, and should have, have taken over the entire operation lock, stock and barrel. Yet that was exactly what the Government decided not to do at the time when it opted for a conservatorship that let the Treasury take two pieces out of the Fannie and Freddie pie. The first was its senior preferred that carried with it a 10 percent dividend rate, which increased to 12 percent if Fannie and Freddie deferred payments on their obligations. The second was an option to purchase some 79.9 percent of the common stock for a nominal price of $0.00001 per share.

Most notably, the SPSPA did not contain any provision that said, “In the event that this infusion of cash rescues Fannie and Freddie, the United States Treasury reserves the right to modify this agreement so as to claim all the profits that the business generates at any future time.” It does not take an advanced degree in finance to explain why this provision was conspicuously absent from the 2008 deal.  Put it in and all of a sudden the two previous clauses are irrelevant to the terms of the deal. 10/12 percent is no longer the dividend rate, and the warrant to purchase the common stock at a nominal price is equally worthless.  Why should the government pay even a dollar to get common stock that with a stroke of the pen it could acquire for free? And why should anyone bother to trade in shares which the government has announced in advance will be worthless to them no matter how valuable the company? . . .

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District Judge Blocks ACA Rule for Non-Exchange States

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by Publius
Posted October 01, 2014, 8:39 AM

Image by Flickr user Images_of_MoneyBloomberg reports:

An Oklahoma federal judge dealt a blow to President Barack Obama’s health-care law, invalidating IRS rules aimed at making policies affordable for consumers around the country.

U.S. District Judge Ronald White in Muskogee ruled today that subsidies, in the form of tax credits, apply only to consumers in the 14 states that have set up insurance marketplaces and not to individuals who buy insurance on the federal marketplace, as in Oklahoma. An Internal Revenue Service rule says needy customers in both the federal and state marketplaces are eligible for subsidies.

“The court is upholding the act as written,” White said, citing language in the law that limits subsidies to those in states with their own exchanges. He called the IRS regulations “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”

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Whistleblowers Under Threat in Supreme Court Case, Lawmakers Warn

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by Publius
Posted September 30, 2014, 3:17 PM

Whistleblowers Under Threat in Supreme Court Case, Lawmakers WarnThe Wall Street Journal Law Blog reports:

A former air marshal’s whistleblower case against the Transportation Security Administration is getting support from a bipartisan group of lawmakers, who say the Obama administration’s legal position would “grant agencies unprecedented power to decide when employees may expose misconduct.”

The Supreme Court is deciding whether a fired air marshal, Robert MacLean, should receive federal whistleblower protections for telling the press in 2003 about a TSA decision to use fewer air marshals on long-distance flights despite warnings of possible hijacking threats. The Supreme Court agreed to hear the case in May with arguments set for Nov. 4.

The case involves a clash between two sets of federal laws — one protecting the rights of whistleblowers and the other limiting disclosure of sensitive but unclassified information about transportation security.

The Department of Homeland Security’s interpretation of the Whistleblower Protection Act “would allow agency regulations to erode the statutory protections Congress created for whistleblowers,” states a friend-of-the-court brief signed by six lawmakers. “It would deter disclosure of government misconduct and impair Congress’s oversight role.” . . .

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Salon & Donna Brazile Call for New Constitution to “Save American Democracy”

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by Publius
Posted September 29, 2014, 8:26 AM

Salon & Donna Brazile Call for New Constitution to In a recent tweet, Donna Brazile expressed support for a Salon article laying the groundwork for a new Constitution. The article comments:

Though they haven’t articulated it as such, Americans want a new constitution that actually does what the original Constitution was supposed to do: serve the public good.

So, what would that document ideally look like?

It would surely reject outright the decadent, cowardly impulse to fashion a body of laws with special perks designed to prop up the few and wealthy while more or less throwing crumbs to the poor and powerless. Its overall function would be to improve the quality of life across the country, in places big and small. Let’s put it in all caps, and maybe stick it in the Preamble: TO CALL ITSELF A REPRESENTATIVE DEMOCRACY, A NATION MUST BE REASONABLE AND EQUITABLE IN THE DIVISION OF POWER.

What systemic changes would take place under this new, more sensible, and decidedly just Constitution?

It would limit the number of terms a representative or senator could serve, so as to introduce fresh blood from a pool of more visible talent. (Does 12 years sound reasonable?) It would not allow ex-congressmen to trade on their insider connections for at least five years–which might then produce fewer power-engrossing lawyer-politicians and more–let’s be really optimistic here–systems engineer- or bioethicist-politicians, i.e., problem solvers with a useful trade to fall back on after public service.

Next, let’s reform the debased Supreme Court by reducing tenure from life to 10 years. (Honestly, who’s not tired of Scalia?)

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Full 7th Circuit Denies Request to Rehear Wisconsin Voter ID Case

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by Publius
Posted September 26, 2014, 2:39 PM

Full 7th Circuit Denies Request to Rehear Wisconsin Voter ID CaseThe Milwaukee Journal Sentinel reports:

Opponents of Wisconsin's voter ID law fell just short Friday of getting a full federal appeals court to reconsider their recent loss in the case before a panel of judges.

On Sept. 12, a three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago ruled that Wisconsin could implement the law for this Nov. 4 election. The law requires voters to show a photo ID in order to vote.

Those suing over the law asked the full, 10-member court to reverse that decision and came just one vote shy of getting the full 7th Circuit to hold a hearing on the case. The members of the court split 5-5 on whether to hold the hearing, which means that the request did not get a majority of votes and fails as a result.

"In the coming days, members of the court may file opinions explaining their votes," the order from the 7th Circuit reads.

Friday's order marked only the latest in a series of legal hurdles cleared — though at times narrowly — by the state's voter ID law. The law was also upheld by the Wisconsin Supreme Court in a pair of rulings last month.

There is a chance that the U.S. Supreme Court could yet consider the matter.

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NC Teeth-Whitening Case Could Have Sweeping Implications

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by Publius
Posted September 26, 2014, 8:40 AM

Photo by HealthGauge (Flickr)The News Observer reports:

What started as an attempt by the N.C. Board of Dental Examiners to kick teeth-whitening services out of mall kiosks, spas and other retail spaces has morphed into a major legal battle with the potential to transform the makeup and reach of similar licensing boards across the country.

The U.S. Supreme Court is scheduled on Oct. 14 to take up a case brought by the dental examiners board against the Federal Trade Commission.

At issue is whether the North Carolina board, made up of dentists, overstepped its regulatory bounds when starting to send cease-and-desist letters seven years ago to teeth-whitening businesses unaffiliated with dental offices. The FTC ruled several years ago that the board engaged in unfair trade practices, and the board has challenged that up to the U.S. Supreme Court.

The high court’s decision could have sweeping repercussions for how states regulate varied fields – from dentistry to health care to law.

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The International Law Framework for Strikes in Syria

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by Publius
Posted September 24, 2014, 8:33 AM

The International Law Framework for Strikes in SyriaAt the Just Security blog, Jennifer Daskal, Ashley Deeks and Ryan Goodman discuss the international law framework for America's strikes in Syria. They comment:

According to a letter submitted by the United States to the United Nations on Tuesday, the Administration is justifying the strikes against ISIL as a lawful exercise of collective self-defense of Iraq.  The letter then goes on to state that the strikes against the Khorasan Group “address terrorist threats that they pose to the United States and our partners and allies.”

As the letter suggests, the legal justification for strikes against ISIL is presumably not the same as that for strikes against Khorasan. The following unpacks some of the key differences. . . .

The U.S. government received a letter from the Iraqi government explicitly asking for U.S. help in the fight against ISIL, thus supporting a claim of collective self-defense.  According to the U.S. notification to the United Nations, Iraq has specifically requested that the United States lead international efforts to strike ISIL sites inside Syria to suppress continuing attacks on Iraq and protect Iraqi citizens.  Under a theory of collective self-defense, the United States is assisting Iraq in responding to the direct and ongoing threat posed by ISIL; the threat stems in part from ISIL forces in Syria; and Syria is either unable or unwilling to quell the threat, thereby justifying an incursion into Syria’s territory. . . .

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Seeking a Same-Sex Marriage Case Fit for History

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by Publius
Posted September 23, 2014, 8:46 AM

Seeking a Same-Sex Marriage Case Fit for HistoryThe New York Times reports:

The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.

In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.

In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.

The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”

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Air Force Removes “So Help Me God” Requirement in Oath

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by Publius
Posted September 18, 2014, 8:35 AM

Air Force Removes USA Today reports:

The Air Force has withdrawn a requirement that all airmen who take the oath of enlistment and officer appointment conclude with "so help me God," the service announced Wednesday.

The Air Force previously allowed airmen to omit those words, but removed that option in October based on its interpretation of 10 U.S.C. 502, 5 U.S.C. 3331 and Title 32, which contain the oaths of office. The Navy, Army and Marine Corps allow their service members to omit "so help me God," spokesmen for all three services told Air Force Times last week.

The Air Force sought a legal review of the rule by the Defense Department's General Counsel on Sept. 9, five days after the American Humanist Association announced it was representing an unnamed atheist airman, stationed at Creech Air Force Base in Nevada, who was denied reenlistment for refusing to say, or sign a form, stating "so help me God."

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Happy Constitution Day

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by Publius
Posted September 17, 2014, 1:21 PM

Happy Constitution Day from The Federalist Society

A great day to read or re-read the supreme law of the United States of America.

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Google Successfully Defends Trademark in Court

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by Publius
Posted September 16, 2014, 1:01 PM

Google Successfully Defends Trademark in CourtIn Forbes, Eric Goldman writes:

The “Google” trademark regularly ranks as one of the most valuable trademarks in the world. In 2011, Forbes estimated the trademark’s value at $44B, and a more recent estimate placed the value at $113B. Almost certainly, the “Google” trademark is Google’s single most valuable asset. Recently, Google’s opponents in a court case claimed the trademark had become “generic,” so everyone could freely use it without restriction. Fortunately for Google, the court decisively rejected the challenge, confirming that “Google” remains a valid and protectable trademark.

The court summarizes:

The word google has four possible meanings in this case: (1) a trademark designating the Google search engine; (2) a verb referring to the act of searching on the internet using the Google search engine; (3) a verb referring to the act of searching on the internet using any search engine; and (4) a common descriptive term for search engines in general.

The courts say that even if Google’s opponents proved that a majority of consumers understand definition #3 (Google as a verb for Internet searching), Google showed 90%+ of consumers understand definition #1 (Google designates its own search engine), so the term Google still functions as a source designator. As the court concludes, the “undisputed evidence is that the consuming public overwhelmingly understands the word google to identify a particular search engine, not to describe search engines in general.”

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U.S. Tax Burden on Business Close to Worst in Industrialized World

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by Publius
Posted September 15, 2014, 9:02 AM

Photo by 401(K) 2012 (Flickr)The Wall Street Journal editorial board comments:

On Monday the Tax Foundation, which manages the widely followed State Business Tax Climate Index, will launch a new global benchmark, the International Tax Competitiveness Index. According to the foundation, the new index measures "the extent to which a country's tax system adheres to two important principles of tax policy: competitiveness and neutrality."

A competitive tax code is one that limits the taxation of businesses and investment. Since capital is mobile and businesses can choose where to invest, tax rates that are too high "drive investment elsewhere, leading to slower economic growth," as the Tax Foundation puts it. . . .

The index takes into account more than 40 tax policy variables. And the inaugural ranking puts the U.S. at 32nd out of 34 industrialized countries in the Organization for Economic Co-operation and Development (OECD).

With the developed world's highest corporate tax rate at over 39% including state levies, plus a rare demand that money earned overseas should be taxed as if it were earned domestically, the U.S. is almost in a class by itself. It ranks just behind Spain and Italy, of all economic humiliations. America did beat Portugal and France, which is currently run by an avowed socialist. . . .

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District Judge Rejects Ohio Law Requiring Truth in Political Advertising

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by Publius
Posted September 12, 2014, 8:22 AM

District Judge Rejects Ohio Law Requiring Truth in Political AdvertisingIn his ruling, District Court Judge Timothy S. Black cited House of Cards main character, Frank Underwood. The Washington Times reports:

In an opinion that cited authorities ranging from the Supreme Court to the “House of Cards” character Frank Underwood, federal District Court Judge Timothy S. Black said Americans should be free to battle out their political ideas without a government overseer ruling whether what they say is true.

“We do not want the government (i.e., the Ohio Elections Commission) deciding what is political truth—for fear that the government might persecute those who criticize it,” Judge Black wrote in his opinion. “Instead, in a democracy, the voters should decide.” . . .

He quoted Netflix’s “House of Cards” show in making his ruling: “The more modern recitation of this longstanding and fundamental principle of American law was recently articulated by Frank Underwood in ‘House of Cards’: ‘There’s no better way to overpower a trickle of doubt than with a flood of naked truth.’" . . .

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Commentary: Airstrikes Against ISIS Require Congressional Authorization

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by Publius
Posted September 11, 2014, 10:33 AM

Commentary: Airstrikes Against ISIS Require Congressional AuthorizationAt the Volokh Conspiracy, Ilya Somin argues that President Obama's airstrikes against ISIS are not authorized under the 2001 Authorization for the Use of Military Force. He comments:

Any such extensive military campaign qualifies as a war that requires congressional authorization under the Constitution. Article I of the Constitution gives Congress, not the president, the power to initiate war. If the air strikes last more than 60 days, they also require authorization under the War Powers Act of 1973.

In recent days, the administration has taken to arguing that they already have congressional authorization under the 2001 Authorization for the Use of Military Force, which gives the president the authority to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The administration has – justifiably, in my view – interpreted this to cover forces “associated” with al Qaeda as well as al Qaeda itself. But as Benjamin Wittes of the Brookings Institution points out, that is not enough to cover the campaign against ISIS, because al Qaeda and ISIS are not allies or associates at all, due to their mutual hostility . . .

Legal arguments aside, getting congressional authorization is also valuable because it can help develop the kind of broad political support that makes it more likely that we will persist and succeed in the campaign despite possible setbacks. . . .

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