Supreme Court

Loss of Scalia Spares Unions Another Damaging Blow

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It is difficult to quantify the impact on the nation of the recent death of Supreme Court Justice Antonin Scalia. Adored by conservatives/originalists, and reviled by progressives and the “living Constitution” crowd, Scalia was not only arguably the greatest legal mind of his generation, but one of the most brilliant and articulate legal scholars in all of America history. Combining rapier wit with a towering intellect, he shaped the legal thinking of conservatives and liberals alike in the judiciary.

In recent years many of the most controversial rulings handed down by the Supreme Court have come in the form of 5-4 rulings, typically with Justice Anthony Kennedy being the swing vote. The loss of Scalia leaves the Court with eight justices, increasing the likelihood of 4-4 decisions that, rather than establish constitutional law precedent, leave issues unsettled and keep in place lower court rulings.

On Scalia Vacancy, GOP Should Follow Democrats’ Example

“The Constitution is not a living organism…It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.” ~ Supreme Court Justice Antonin Scalia

At about 8:45PM last Saturday night, I grabbed my favorite blanket and the remote and sat on the couch to watch the fireworks that were sure to be on display in the rancorous GOP presidential debate. I’d had a wonderful, news-free day out with my wife, and was not really in the mood to watch the debate, but I felt it was my obligation as a citizen, preparing to exercise my constitutional privilege to vote, to listen to each man make the case for their candidacy. I was gratified to watch as, unbidden, my 17, 15, 12, 11, and 6-year old children joined me.

Moments after the candidates had been introduced, the moderator asked his first question, and that was when I first learned of Scalia’s death. It was like a kick to the gut. My eyes opened wide in shock and I let out an audible gasp of dismay, and my eyes watered. Though Clarence Thomas edged out Justice Antonin Scalia as my favorite Supreme Court justice, it is inarguable that Scalia has been the anchor of the conservative wing of the court. His loss is devastating and cannot be overstated. His jurisprudential brilliance and his sharp wit were legendary, and even though he spent most of his career on the Court in the minority, he had more influence in the minority than his lesser colleagues had in the majority. Such was the high quality of his legal reasoning.

How Might the Supreme Court Rule on Obama’s Executive Amnesty?

The Supreme Court agreed this morning to take the case of Texas and 25 other states who sued the federal government over the Obama administration’s unilateral executive action to limit deportations of certain illegal immigrants. The program was halted by the Fifth Circuit Court of Appeals in November over the costs to the states resulting from the program, not its inherent (un)constitutionality.

Obama authorized the DAPA program after Congress rejected a similar legislative proposal to defer deportations for children brought here by their parents…and those parents themselves. That separation of powers argument is the main problem with the program, as I’ve argued before.

Although it’s not explicit in the Constitution, the intent of the separation of powers was for Congress to write federal policy and the President to enact it. The President doesn’t get to write his own policy if Congress refuses to do as he wishes. This Supreme Court decision may end up ruling on that very broad issue, or it could rule on the merits of the DAPA program.

Fifth Amendment Challenge Against USDA’s “Raisin Taking” Makes It To The Supreme Court

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California raisin farmer, Martin Horne, has been battling a Depression era U.S. Department of Agriculture regulation for over a decade. Horne says that the 1937 revision of the Agricultural Marketing Agreement Act amounts to a violation of his Fifth Amendment protections, and is nothing short of government theft.

The Act gave birth to the Raisin Administrative Committee and the National Raisin Reserve ( yes, these are real things), and allowed them to confiscate a portion of raisin crops each year in an effort to stabilize raisin prices. The regulations are (surprise!) convoluted in that they don’t permit taking of crops from growers (producers) of grapes, but from handlers who dry and package raisins.  Horne is both.

In 2001, Horne claimed he was not subject to the USDA’s raisin taking, but they demanded 47% of his crop. When he refused, they slapped him with a $700,000 fine.  Horne has been navigating the court system since.

In 2013, the Supreme Court booted the challenge back to the Ninth Circuit, which ruled that the Fifth Amendment’s “Taking Clause” was not applicable in the case of raisins, and if it were ( ?) handlers were compensated by the controlled pricing on the raisins allowed to be sold by the Raisin Administrative Committee.

Ted Cruz releases report on the 20 times the Supreme Court unanimously slapped down an Obama power grab

President Obama’s frequent referrals to executive orders may not materialize as often as they have in other stances in history, but his thirst for presidential overreach has caused enough concern amongst defenders of the Constitution.

What puts President Obama at the top of the list of statesmen who happen to have shown disposition in seeking more power than what is given to them is not only related to executive orders. Obama’s appointed officials, who are hand-picked by the president to run powerful cabinet offices and often bypass Senate confirmation, are also great examples of how Obama can use his presidency to stretch the power of the executive, creating thus menacing precedents.

According to Sen. Ted Cruz (R-TX), the Supreme Court has rejected at least 20 cases involving personal freedom. In order to ensure the public is aware of the many instances President Obama’s opinion was reportedly struck down, Cruz released reports on the administration’s efforts to expand federal government.

His latest, and fifth, report covers most of everything.

According to Cruz, the consequences that would have taken place in case President Obama’s arguments had passed could result in substantial changes to the U.S. law system. Cruz’s team has released a report on the matter, and it carries a list of power overreach stories.

While the Supreme Court has rejected Obama’s arguments, which could have been easily used against you and me if he had had his way, the release offers a look into what the U.S. could like in the future if the rulings had been different.

One paragraph from the Hobby Lobby ruling destroys the entire liberal “anti-women” narrative

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The instant the Supreme Court ruled on Burwell v. Hobby Lobby, the War on Women™ was back on. Liberals from sea to shining sea had talking points, Facebook memes, and … narratives ready to go and deployed them in a cascade of messaging discipline. It was truly a sight to behold. You may have seen this particularly nonsensical but effective image shared hundreds of times within 24 hours:

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I mean really. But apart from saying “nuh uh!”, conservatives had little effective response to this narrative. But then Julian Sanchez from the Cato Institute’s blog discovered a little-noticed passage in the Supreme Court opinion written by Justice Samuel Alito:

The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing.

This refers to an exception created by the Department of Health and Human Services that forces insurers to pick up the tab for coverage objected to by religious non-profit organizations and churches. Women employed by these organizations receive the same coverage, medications, and cost-free contraceptives as everyone else as mandated by HHS, even though the organizations themselves refuse to pay for that coverage.

Hobby Lobby reaffirms religious liberty, one of the bedrock principles of the Constitution

For all the things the Hobby Lobby decision does — and you can read Jason Pye’s piece on the relevant parts of Alito’s decision here — there are few things it does that will have reverberating ramifications for the future of everything from defining contraceptives as preventative or abortifacient, to whether or not our Constitution is a flawed document full of “negative liberties” as our President once declared.

But for now, the most important thing to remember is that this image being thrown around social media is a lie:

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It’s a lie on so many levels and it’s tremendously disturbing that the kids are sharing it as truth. First, the opinion is narrow. It applies only to “closely-held” corporations who can prove they have a religious objection. Is your boss the owner of a closely held corporation?

Second, no one is denying you access to anything. You are free at any time to buy any of the four types of products the decision says Hobby Lobby does not have to supply. (Hobby Lobby, by the way, offers 16 other types in their health coverage. Those crazy fascist religious righties.)

Supreme Court rejects Obama’s power grab: Justices unanimously invalidate NLRB recess appointments

The White House got a big reality check from the Supreme Court this morning. In a unanimous decision, the High Court invalidated recess appointments President Barack Obama made to the National Labor Relations Board in January 2012 because the Senate was technically in session.

The Constitution, in Article II, Section 2, allows a president to make appointments to fill vacancies when the Senate is not in session. These nominations are reviewed by the Senate when it reconvenes and must be approved by two-thirds of that chamber.

The issue at hand is that the Senate was in pro forma session — meaning that it had not formally adjourned — when President Obama made the appointments. The opinion in National Labor Relations Board v. Noel Canning, written by Justice Stephen Breyer, makes very clear that President Obama exceeded his constitutional authority by trying to sneak in bureaucrats who would rubber-stamp his and big labor’s agenda.

“In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for pur­poses of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business,” Breyer wrote. “The Senate met that standard here.”

“The standard we apply,” he continued, “is consistent with the Constitu­tion’s broad delegation of authority to the Senate to determine how and when to conduct its business.”

Will the FCC Force Television Online Even If Aereo Loses in Court?

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The Supreme Court hears oral arguments yesterday in a case that will decide whether Aereo, an over-the-top video distributor, can retransmit broadcast television signals online without obtaining a copyright license.

If the court rules in Aereo’s favor, national programming networks might stop distributing their programming for free over the air, and without prime time programming, local TV stations might go out of business across the country. It’s a make or break case for Aereo, but for broadcasters, it represents only one piece of a broader regulatory puzzle regarding the future of over-the-air television.

If the court rules in favor of the broadcasters, they could still lose at the Federal Communications Commission (FCC). At a National Association of Broadcasters (NAB) event earlier this month, FCC Chairman Tom Wheeler focused on “the opportunity for broadcast licensees in the 21st century … to provide over-the-top services.”

According to Chairman Wheeler, TV stations shouldn’t limit themselves to being in the “television” business, because their “business horizons are greater than [their] current product.” Wheeler wants TV stations to become over-the-top “information providers”, and he sees the FCC’s role as helping them redefine themselves as a “growing source of competition” in that market segment.

Liberals Frothing at the Mouth over McCutcheon Ruling

“Liberals claim to want to give a hearing to other views but then are shocked and offended to discover that there are other views.” — William F. Buckley Jr.

For the second time in four years, liberals all over America are once again in the throes of apoplectic rage at the Supreme Court over a decision expanding free speech rights.

On January 21, 2010, in a 5-4 decision, the U.S. Supreme Court ruled in Citizens United v. Federal Election Commission that the First Amendment protections of free speech prohibit the government from restricting political donations by corporations (and labor unions, but you never hear the left complaining about that).

This ruling became a rallying cry for the left, who decry the corrupting influence of money on our political process. Eight days after the decision, Barack Obama stood before the assembled members of the House and Senate, as well as the justices of the Supreme Court, and railed against the immorality and danger of the decision.

Quoth Emperor Barack, “With all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections…I don’t think American elections should be bankrolled by America’s most powerful interests or, worse, by foreign entities. They should be decided by the American people. And I urge Democrats and Republicans to pass a bill that helps correct some of these problems.”


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