On December 1, 2013, Amazon announced that it might make deliveries to homes and businesses in the future using unmanned aerial drones. As the domestic use of drones rises, legal issues will arise as well over who controls airspace and who has the right to regulate the use of such aircraft. Privacy issues will also be implicated. Professor Gregory S. McNeal, associate professor at Pepperdine University School of Law, discussed these issues with a live Teleforum audience on December 5. You can listen to a podcast of the call here.
Carrie Severino comments at Bench Memos:
Last month, liberal attack dogs Common Cause and Alliance for Justice convinced Representative Slaughter to join them in a baseless attack on Justice Thomas’s and Seventh Circuit Judge Diane Sykes’ ethics. The effort was a blatant hack job, so frivolous that it was recently rejected by the chief judge of the Seventh Circuit as just that. Chief Judge Diane Wood (a short-lister for each of President Obama’s Supreme Court nominations), dismissed the complaint as either “lack[ing] any factual foundation or . . . conclusively refuted by objective evidence.”
As Chief Judge Wood’s two-page dismissal indicates, the allegations were easily refuted. Representative Slaughter’s press release cited a provision in the federal judges’ code of conduct that forbids judges serving as “a speaker, a guest of honor, or featured on the program” of a fundraising event. But Justice Thomas and Judge Sykes could not possibly violate this provision by speaking at the Federalist Society dinner [see above video] because it is not a fundraising event. The event is not designed to raise money, has never been advertised as a fundraiser, and in fact costs more to put on than it brings in in ticket prices.
These baseless accusations are all the more absurd when viewed in contrast to the American Constitution Society, a liberal group that aspires to replicate the Federalist Society’s success but from the opposite philosophical perspective. That organization also regularly has Supreme Court Justices speak at its conferences. Last year retired Justice John Paul Stevens spoke. The previous year it was (active) Justice Ruth Bader Ginsburg. The speaker list includes a host of other federal judges. And their sponsor list includes corporations and law firms, many of which are the same ones who have sponsored the Federalist Society’s conference. If speaking at an event with corporate or law-firm sponsors actually did violate ethical rules, it would implicate judges across the spectrum, not only Justice Thomas and Judge Sykes.
This crude personal attack is disappointing, both for its partisan nature and its reckless disregard of the absence of any factual basis for its harmful allegations against two federal judges. Unfortunately, at least one respectable media outlet parroted these accusations, lending them credibility. I trust they will put forth equal effort in rehabilitating the maligned judges.
The Day of Connecticut reports:
A "tiny house neighborhood" and a symbolic cleansing of the Kelo ruling "stain" are among the development options discussed for Fort Trumbull by New London Mayor Daryl Justin Finizio in his recent meeting with The Day editorial board. What remains murky is the mayor's vision for how any development takes place on the long barren peninsula and who will be in charge of guiding and promoting it.
The 2005 Supreme Court decision in New London v. Kelo, in which the court by a 5-4 majority constitutionally validated the New London Development Corp.'s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a "black stain" on the city, said its mayor
NLDC wanted to clear the site to attract large corporate development and expand the city's tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting "public use" to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a "corruption of the constitutional interpretation of public use."
Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.
Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true "public use" of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat's offices in the former Pfizer buildings, the one major project resulting from NLDC's corporate development vision.
This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into the setting, and first-floor shops to generate revenues.
"What really gets us beyond the eminent domain debacle may be effectively overturning the Kelo opinion if not de jure before the Supreme Court, then de facto in the city of New London," said Finizio. "What (New London) justified this (eminent domain seizure) on was generating private development for economic development purposes, but what we are actually going to do is create public development for economic development purposes." . . .
In November 2013, the Federalist Society hosted a panel on "New Directions in Takings Law" at its National Lawyers Convention. Participating were:
- Mr. Paul J. Beard II, Principal Attorney, Pacific Legal Foundation
- Prof. James L. Huffman, Dean Emeritus, Lewis & Clark Law School
- Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
- Prof. Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law, Cardozo School of Law
- Moderator: Hon. Edith Brown Clement, United States Court of Appeals, Fifth Circuit
You can watch a video of the event here.
The Wall Street Journal reports:
The Senate on Tuesday confirmed two Obama administration nominees, taking advantage of filibuster rule changes pushed through by Democrats last month.
Democrats used the changes to install Patricia Millett at the U.S. Court of Appeals for the District of Columbia Circuit, and Rep. Mel Watt (D., N.C.) to head the Federal Housing Finance Agency, which controls the government-supported mortgage-finance giants Fannie Mae and Freddie Mac.
The Senate altered its rules during a bitter fight in November over Obama administration nominees, reducing to a simple majority the number of votes needed to approve executive branch officials and most judicial nominations.
Previously many nominees needed 60 votes to clear the 100-member Senate.
The moves came after Republicans had blocked votes on Mr. Watt, Ms. Millett and two other nominees for the D.C. Circuit, prompting Democrats to force a change so contentious it has been dubbed the nuclear option.
Rep. Mel Watt will head the Federal Housing Finance Agency. Reuters
"Now that the Senate has changed its precedents to overcome the escalating obstruction of some, I hope reasonable Republicans will join us in restoring the Senate's ability to fulfill its constitutional duties," said Senate Judiciary Chairman Patrick Leahy (D., Vt.)
Sen. Charles Grassley (R., Iowa) criticized Democrats for changing the rules and making it easier to realize administration priorities. "What's at stake is a radical agenda and the other side's effort to remove any meaningful check on that agenda," he said.
The D.C. Circuit is one of the nation's most influential courts because it regularly considers lawsuits challenging major federal rules and regulations. The appellate court will now include five judges appointed by Democratic presidents and four appointed by Republicans.
Ms. Millett was approved on a 56-38 vote, picking up two Republican supporters—Sens. Susan Collins of Maine and Lisa Murkowski of Alaska. No Democrats opposed her.
Ms. Millett, a lawyer with Akin Gump Strauss Hauer & Feld LLP, worked in the Justice Department during Democratic and Republican administrations. She has argued 32 cases before the Supreme Court.
Mr. Watt was President Barack Obama's pick to head the housing agency, which controls Fannie Mae and Freddie Mac. He cleared the Senate on a 57-41 vote.
All 55 members of the Democratic caucus supported Mr. Watt. Two Republicans—Sens. Rob Portman (R., Ohio) and Richard Burr (R., N.C.)—crossed party lines to back him. . . .
According to Greenwire:
The Obama administration's efforts to clean up air pollution go on trial tomorrow, as the Supreme Court and a federal appeals court review two landmark rules from President Obama's first term.
In one of the most high-profile environmental cases of the Supreme Court term, the justices will consider U.S. EPA's 2011 rule for air pollution that drifts across states lines. The agency asked the court to take the case after the U.S. Court of Appeals for the District of Columbia Circuit struck the rule down in August 2012.
The D.C. Circuit, meanwhile, will hear a broad challenge from industry groups and several states to EPA's December 2011 mercury and air toxics standards for power plants.
"It's a very important day for EPA and also for the energy sector," said Jacob Hollinger of McDermott Will & Emery, a former EPA air attorney. "Both rules have important implications for power generation. It matters for everyone."
The Supreme Court case centers on EPA's implementation of the Clean Air Act's "good neighbor" provision, which allows the agency to regulate pollutants from one state that "contribute significantly" to violations of air standards in adjacent states for ozone-forming pollutants -- such as sulfur dioxide and nitrogen oxide -- and fine particles, or soot.
Many Eastern states -- including New York, Maryland and Connecticut -- suffer dirty air that drifts in from the Midwest. With the Supreme Court case highlighting the issue this week, eight Northeastern governors today also petitioned EPA to do more to crack down on pollution coming from Appalachia (see related story).
In July 2011, EPA issued the Cross-State Air Pollution Rule, or CSAPR, a regulatory regime that applies to 28 Eastern states. The regulations called for upwind states to cut emissions of ozone-forming gases by installing pollution controls or shutting down power plants.
However, determining where pollution comes from is a murky issue, and industry and several upwind states quickly challenged the regulations and the economic burden they would create.
EPA described in court documents its struggle to curb cross-state pollution.
"In short, at least in the eastern half of the United States," the agency wrote, "the interstate pollution problem is best understood as a dense, spaghetti-like matrix of overlapping upwind/downwind 'linkages' among many states, rather than a neater and more limited set of linkages among just a few." . . .
Tomorrow at 1 pm, the Federalist Society will be hosting a courthouse steps teleforum on the Supreme Court case. Speaking will be Mark DeLaquil, a partner at Baker & Hostetler LLP. FedSoc members can join the call here.
CBS News Denver reports:
A baker who refused to make a wedding cake for a same-sex ceremony must serve gay couples despite his religious beliefs or face fines, a judge said Friday.
The order from administrative law judge Robert N. Spencer said Masterpiece Cakeshop in suburban Denver discriminated against a couple “because of their sexual orientation by refusing to sell them a wedding cake for their same-sex marriage.”
The order says the cake-maker must “cease and desist from discriminating” against gay couples. Although the judge did not impose fines in this case, the business will face penalties if it continues to turn away gay couples who want to buy cakes.
The American Civil Liberties Union filed a complaint against shop owner Jack Phillips with the Colorado Civil Rights Commission last year on behalf of Charlie Craig, 33, and David Mullins, 29. The couple was married in Massachusetts and wanted a wedding cake to celebrate in Colorado.
“What the judge decided was that the baker’s religious beliefs don’t give him a right to discriminate and violate Colorado law,” Mark Silverstein with the ACLU told CBS4. . . .
In November 2013, the Federalist Society sponsored a panel discussion at its National Lawyers Convention on "Religious Liberty & Conflicting Moral Visions." Participating were:
- Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
- Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
- Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
- Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
- Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit
You can watch a video of the even here.
BLT: the Blog of Legal Times reports:
The U.S. Supreme Court on Monday granted Senate Republicans argument time on Jan. 13 when the justices hear historic debate over the constitutionality of President Barack Obama's recess appointments to the National Labor Relations Board.
As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama's appointments. He will have 15 minutes, in addition to the 30 minutes allotted to Noel Francisco of Jones Day, who represents the appellee Noel Canning company, a Pepsi bottler from Yakima, Washington. For balance, the court extended the government's argument time from 30 to 45 minutes, for a total of 90.
In seeking the extra time, Estrada told the court that the senators have "incomparable interest in the constitutional issues involved," and an "unmatched stake" in defending the Senate's prerogatives to establish its own procedures, including when to adjourn. The senators should be given the opportunity, Estrada said, to describe the "adverse separation-of-powers consequences of allowing the Executive to seize control of congressional procedure."
Francisco told the court he agreed with giving the senators argument time, so long as it did not cut into his allotted half hour. His side needed 30 minutes, he said, to give "a full and complete presentation of its position." . . .
In November 2013, the Federalist Society sponsored a panel discussion at its National Lawyers Convention on "Recess Appointments: Implications of Noel Canning." Participating were:
- Mr. John Elwood, Partner, Vinson & Elkins LLP
- Mr. Noel J. Francisco, Partner, Jones Day
- Prof. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law; former member, National Labor Relations Board and Staff Attorney, National Right To Work Legal Defense Foundation
- Ms. Elizabeth B. Wydra, Chief Counsel, Constitutional Accountablity Center
- Moderator: Hon. Raymond M. Kethledge, United States Court of Appeals, Sixth Circuit
You can watch a video of the event here.
According to Reuters:
A federal judge this week defended his custom of urging lead law firms in class actions to staff the lawsuits with women and minority lawyers, two weeks after U.S. Supreme Court Justice Samuel Alito took the unusual step of criticizing the practice.
The judicial dustup stems from the Supreme Court's decision on Nov. 18 not to review a challenge to a class action settlement that resolved antitrust claims against Sirius XM Radio Inc.
Though it declined to hear the case, Alito wrote a six-page statement criticizing the practice of Judge Harold Baer, of U.S. District Court for the Southern District of New York, of encouraging firms that represent plaintiffs in class actions to assign lawyers that reflect the gender and racial makeup of the class.
Alito likened the practice to "court-approved discrimination" and said it might warrant further review by the high court.
In an interview with Reuters on Wednesday, Baer, 80, said that Alito lacked "either understanding or interest" in the discrimination faced by blacks, Latinos and women.
"So for him to talk about it as if this is something we shouldn't look at is unfortunate," Baer said.
Alito declined to comment through a Supreme Court spokeswoman.
In court orders, Baer has written that the practice is warranted under a federal rule governing the certification of class action lawsuits. The rule says a judge may, among other things, "consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class."
In the interview, Baer said that he does not require the firms to assign minority and women lawyers to cases. Instead, he said he notes the value of taking race and gender into account, and only in cases where the plaintiffs are mainly minorities and women.
If plaintiffs were "all white Anglo-Saxon Protestants," Baer said, "I would not likely be making these comments."
Baer, whom President Bill Clinton nominated to the bench in 1994, said Alito's salvo did not surprise him. . . .
A little more than 20 years ago, Congress did something that, today, is hard to imagine. Lawmakers from both parties and across the political spectrum found common ground and passed, by a near-unanimous vote, the Religious Freedom Restoration Act, which firmly commits the federal government to protecting and promoting our "inalienable right" to freely exercise religion. As President Clinton remarked when he signed the legislation into law, "the power of God is such that even in the legislative process, miracles can happen."
Last week, the Supreme Court agreed to hear two cases that are testing the strength of this commitment. The arguments and decisions in the Hobby Lobby and Conestoga Wood lawsuits will say a lot about the health, and the future, of what Clinton called our "first freedom."
These cases involve religious liberty challenges by two family businesses to the rule in the Affordable Care Act requiring employers to provide insurance coverage for contraception and some drugs that many believe can cause abortions.
The Green family has not confined its Christian beliefs to Sunday worship, and has instead expressed them through the operation of its Hobby Lobby stores for nearly 40 years. Similarly, the Hahn family's Mennonite faith has animated and sustained its woodworking business for generations.
Like millions of religious believers and groups, these challengers reject the idea that religious faith and religious freedom are simply about what we believe and how we pray, and not also about how we live, act and work. At the heart of these two cases is the straightforward argument that federal law does not require us to "check our faith at the door" when we pursue vocations in business and commerce.
There should be no question about the sincerity of the religious beliefs at issue. These are not cases where the profit-focused managers of publicly traded mega-companies are cynically trying to save a few bucks or to gain a competitive edge.
As many would-be Sunday shoppers know, the Green family "walks the walk." Signs on Hobby Lobby stores' doors say that they close on Sundays "to allow employees time for worship and to spend time with their families." Their stores do not carry shot glasses, lewd greeting cards or vulgar posters, and the background music is Christian. Hobby Lobby contributes generously to charities and starts full-time employees at nearly double the minimum wage. When the Greens and Hobby Lobby do this, and many other things, they are living out their faith and exercising their religion.
Hobby Lobby also provides excellent health insurance, which includes coverage for most — but not all — contraceptives. However, because of the Greens' firm belief in the dignity of human life and about when and how it begins, Hobby Lobby cannot provide coverage for some of the required drugs because they could cause an abortion.
The government and others argue that the Greens' religious beliefs are irrelevant because they've freely chosen to enter the rough-and-tumble world of commerce and that, in any event, the exercise of religion is for individuals, not corporations. But Hobby Lobby's lawyers at the Becket Fund for Religious Liberty will be on solid ground when they explain to the court that both of these arguments are misguided.
The issue is not whether groups, associations and corporations have religious freedom rights under federal law. Of course they do. After all, religious hospitals, schools, social service agencies and churches are not "individuals," but it would be bizarre to say that they don't exercise religion.
And the question should not be whether legal protections for religious liberty stop at the sanctuary door or evaporate when a person is trying to make a living or a business is aiming to make a profit. At a time when we talk a lot about corporate responsibility and worry about the feeble influence of ethics and values on Wall Street decision-making, it would be strange if the law were to welcome sermonizing from Starbucks on the government shutdown but tell the Greens and Hobby Lobby to focus strictly on the bottom line.
The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America's history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.
What Clinton said when he signed the act into law is worth remembering today: "Let us never believe that the freedom of religion imposes on any of us some responsibility to run from our convictions." He challenged us instead to "bring our values back to the table of American discourse to heal our troubled land." The Greens and Hobby Lobby, by refusing to check their faith at the marketplace door, are doing just that.
According to Forbes:
David Meinert is the owner of the venerable 5 Point Café in Belltown, Seattle, an old-school dive bar that made news earlier this year when it announced that Google Glass smart eyewear would not be allowed in the bar. People locally were amused and the story was tagged as a sign of things to come.
Lost Lake Café is a new-ish 24-hour diner at a busy intersection in the hip mecca that is the Capitol Hill neighborhood in Seattle. It is owned by Meinert and his business partner, Jason Lajeunesse, another local entrepreneur. Last week, a Seattle video teleconference network engineer named Nick Starr went to Lost Lake with some friends. Starr was wearing Google Glass and was asked by a server and manager to either take the headset off or he’d be asked to leave.
Starr and his friends did end up leaving, apparently unhappily, because this morning Starr took to Facebook to air his grievances to Meinert and his Lost Lake crew, saying in part that he informed the server that he was [sic] “well aware of the policy at The 5 Point Cafe but asked to see where it was policy for Glass to be disallowed at Lost Lake. She said she couldn’t provide any and when asked to speak with management she stated she was the night manager. I again inform her that the two venues are different and have different policies. She refuses and I leave.”
Starr goes on to say that “I would love an explanation, apology, clarification, and if the staff member was in the wrong and lost the owner money last night and also future income as well, that this income be deducted from her pay or her termination.” Starr is clearly miffed.
“I think the crazy part is that this guy comes into a diner,” Meinert tells me, “and is asked to change his behavior in a way that’s our right to ask of him. He doesn’t like it, so he tries to get the server fired. It’s a total [expletive] move.” Meinert also tells me that there had been a staff meeting just a few days prior to the incident where Glass was specifically addressed as being a forbidden item.
Lajeunesse points out that Glass isn’t like a cellphone or other camera, where people can easily tell when they’re being filmed. “It’s about privacy,” he says. “It’s one thing to take out a camera and capture a moment, people see you doing it, they have a chance to step out if the want to. With glass people don’t have a chance to do that. We want our customers to feel comfortable, not like they’re being watched.” . . .
5th Circuit Upholds Arbitration Agreement Prohibiting Employee Class Action, Overturns NLRB Decision
The US Court of Appeals for the Fifth Circuit on Wednesday ruled that employers can require their employees to sign an arbitration agreement prohibiting them to pursue claims in courts or in a class action. The ruling overturned a prior decision by the National Labor Relations Board which held that requiring employees to sign an arbitration agreement violated the National Labor Relations Act. The case involved a Texas-based home builder that required its employees to sign an arbitration agreement as a condition of employment. The three-judge panel, in a 2-1 decision, stated that pursuant to case law addressing the Federal Arbitration Act the use of class action procedure is not a substantive right. It further noted that the general language of the NLRA is insufficient to override the application of the FAA which favors arbitration. Thus, the court held that the employer's arbitration agreement containing class-action waivers are enforceable under the FAA. However, the court noted that the agreement must clarify that the employee does not waive his right to file a claim with the NLRB. Under the current version the employee would reasonably interpret the agreement as prohibiting such a right. . . .
On June 10, 2013, The Supreme Court announced its decision in Oxford Health Plans LLC v. Sutter. The question in the case was whether an arbitrator exceeds his powers under the Federal Arbitration Act in determining, by consent of the parties, whether the parties’ contract authorized class arbitration. In a unanimous decision, the Court held that the arbitrator did not exceed his powers under the Federal Arbitration Act and affirmed the judgment of the lower courts, which had refused to vacate that arbitrator’s decision. Justice Kagan delivered the opinion of the Court. Justice Alito filed a concurring opinion, which Justice Thomas joined. To discuss the case, the Federalist Society produced a post-decision podcast with Peter “Bo” Rutledge, the Herman E. Talmadge Chair of Law at the University of Georgia School of Law. You can listen to it here.
The Washington Post reports:
John Dennis Apel, an antiwar protester arrested on a California military base for demonstrating in a spot set aside for public protests, thought he had a pretty good free-speech case for the Supreme Court on Wednesday.
Most of the justices think otherwise — at least for now.
Members of the court repeatedly shut down Apel attorney Erwin Chemerinsky when he tried to raise Apel’s constitutional rights as part of the court’s consideration of a federal law that allows commanders to bar a person from a military base.
“You keep sliding into the First Amendment issue, which is not the issue” on which the court accepted the case, Justice Antonin Scalia said. “We’re only interested in whether the statute applies.”
Chemerinsky said the statute must be considered in tandem with Apel’s free-speech rights.
“You can raise it, but we don’t have to listen to it,” Scalia replied.
Apel, 63, is a longtime peace activist who has protested at Vandenberg Air Force Base for more than a decade. But he was barred from the base after throwing blood on the Vandenberg entrance sign in a protest in advance of the Iraq war.
He and like-minded activists have continued to protest on the first Wednesday of every month at a site along the Pacific Coast Highway, which runs through the base, that has been set aside for protesters since 1989.
But Apel was arrested several times in 2010 and received misdemeanor convictions for violating a federal law that forbids a person from entering a military base after being ordered not to do so by the commanding officer.
The U.S. Court of Appeals for the 9th Circuit in San Francisco overturned the convictions. It said that commanders have such authority only on property exclusively controlled by the U.S. government and that the base shared control of the highway with the state of California and the county of Santa Barbara.
The court did not address Apel’s First Amendment arguments. . . .
The National Security Agency is down in the dumps. It’s used to being heralded for brilliance. It can’t understand how millions of Americans, not to mention foreigners, think it’s engaged in voracious, useless, and unlawful eavesdropping around the world, and dangerous to liberty at home. Past intelligence scandals have always involved the failure to collect or understand critical information – the attack on Pearl Harbor in 1941, for example – or unlawful spying on Americans for political reasons, like in 1976. This one is different. NSA is being criticized for collecting too muchintelligence, or the wrong foreign intelligence, and for collecting of U.S. telephony metadata that it does under an act of Congress and repeated orders of the Foreign Intelligence Surveillance Court. Congress knew when it amended the Foreign Intelligence Surveillance Act law how it was being used, and more than a dozen judges have approved the specific uses of this authority. Nor has there been a whiff of intelligence abuse for political purposes. We’re in the midst of the only intelligence scandal in history involving practices approved by Congress and the federal courts and subject to heavy and effective oversight. How did this happen, and what should be done? . . .
In November 2013, at the the Federalist Society's National Lawyers Convention, Brenner took part in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were Stephen G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice; Michelle Richardson, Legislative Counsel, American Civil Liberties Union; Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal; Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law; Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society.
You can watch a video of the discussion here.
Stephen Koff writes in the Cleveland Plain Dealer:
If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.
Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.
Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.
Adler, a Case law professor since 2001, pored over the ACA after it passed in 2010 and found this: Congress created a system for providing tax subsidies and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.
But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.
Congress did provide for the creation of a federal exchange, but as a backup, Adler says.
Things haven't worked out that way. When the law was put into practice, 27 states, including Ohio, said they did not want to start their own exchanges or partner with the federal government for a jointly run exchange. They are using the federal system instead, forgoing federal grants that would have helped them establish their own marketplaces. According to the Pew Research Center, that means nearly 60 percent of Americans who lack insurance live in states that refused to have their own exchanges.
Based on the law, Adler says, the Internal Revenue Service has no legal authority to give tax subsidies to people enrolling in the federal exchange. The IRS wrote a regulation as if it has that right, but Adler says the ACA never empowered it to do so.
Although this particular issue involves the signature law of President Barack Obama's White House, there have been legal parallels with the desires of other administrations, including President George W. Bush's, on environmental and other matters, Adler says.
"In none of these areas does that authorize the administrative agencies to rewrite the laws altogether," Adler said in a telephone interview this morning with The Plain Dealer. "They've got to go back to Congress."
This may sound like a novel theory for the policy and law blogs, some of which Adler participates in. He initially used his research for a paper that he presented at a legal conference at the University of Kansas in February of 2011.
But then a friend and influential health-policy analyst, Michael Cannon at the libertarian-leaning Cato Institute, a Washington think tank, told Adler that he was onto something big -- something that could profoundly affect Obamacare.
Without the tax subsidies, the ACA cannot work. . . .
In June 2013, Professor Adler participated in a panel on the "Implementation of the Affordable Care Act" the Federalist Society's First Annual Executive Branch Review Conference. Also participating were James C. Capretta, Visiting Fellow at the American Enterprise Institute; Ian Millhiser, Senior Constitutional Policy Analyst at the Center for American Progress, and Terry Eastland, Publisher of The Weekly Standard. You can watch a video of the event here.
BLT: The Blog of Legal Times reports:
Several constitutional law experts criticized some of President Obama's executive actions today, telling lawmakers on Capitol Hill that the administration crossed a line by delaying the new health care law and changing immigration enforcement.
At a House Judiciary Committee hearing, Jonathan Turley, a professor of public interest law at George Washington University Law School, testified that there has been a radical expansion of presidential powers in recent years, beginning with President George W. Bush and continuing under Obama.
The Obama administration has "an undeniable pattern of circumventing Congress in the creation of new major standards, exceptions, or outright nullifications," Turley said.
That has caused a continued rise of a fourth branch—large agencies that can determine their own jurisdictions—and created a dangerous and unstable system for future presidents who will claim the same authority, Turley said.
"He's become the very danger the Constitution was designed to avoid, the concentration of power in any one of the branches," Turley said of Obama. "If a president can unilaterally change the meaning of laws in substantial ways, or refuse to enforce them, it takes offline that very thing that stabilizes our system.”
Nicholas Rosenkranz, a constitutional law professor at Georgetown University Law Center, testified that Obama has stretched the concept of prosecutorial discretion, particularly in a decision to stop enforcement against certain types of illegal immigrants. "This is a scale of decision making that is not within the traditional conception of prosecutorial discretion," Rosenkranz said.
Rosenkranz, when answering questions from lawmakers, said the remedy for the overreach is elections. But he also suggested Congress would have grounds for impeachment if a president took unilateral action on something like declaring war.
Michael Cannon, the director of health policy studies at the Cato Institute, said that delays in the Affordable Care Act and the administration actions changing that law have "more in common with monarchy than democracy or a constitutional republic."
"Today, with respect to health care, the law of the land is whatever one man says it is—or whatever this divided Congress will let that one man get away with saying," Cannon said. "What this one man says may flatly contradict federal statute." . . .