Tag: SCOTUS

The latest efforts by state authorities to protect the police who abuse their authority has been dealt a blow by the US Supreme Court. From the Chicago Tribune:

The Supreme Court refused on Monday to revive a controversial Illinois law that prohibited audio recordings of police officers acting in public places, a ban that critics said violated the First Amendment of the U.S. Constitution.

Without comment, the court on Monday let stand a May 8 ruling by the 7th U.S. Circuit Court of Appeals in Chicago that blocked enforcement of the law, which had made it a felony to record audio of conversations unless all parties consented.

In a 2-1 ruling, the 7th Circuit called the law “the broadest of its kind,” and said it likely violated the free speech and free press guarantees in the First Amendment.

MSNBC “The Last Word“ host, Lawrence O’Donnell, commented on the importance of this ruling during his “Rewrite” segment:

“After the Rodney King beating, Chicago police decided to use an old anti-eavesdropping law to protect themselves-a law which basically made it a felony to record a conversation unless all parties agree to be recorded,” said O’Donnell, giving part of the back-story. “That, in effect, meant you couldn’t shoot video of Chicago police because, of course, video recording normally includes sound.” [..]

“The good police officers in this country, which is to say most of the police officers in this country, have no problem with the Supreme Court’s decision this week,” said O’Donnell. “Thanks to federal judges appointed by both Democratic and Republican presidents, some Chicago cops-the bad ones-have something new to fear, tonight: your video camera.”

George Washington University law professor Jonathan Turley also commented about the Court’s decision and had some very harsh criticism of Cook County State’s Attorney Anita Alvarez:

As a native Chicagoan, I remain astonished that citizens have allowed Alvarez to remain in office as she has publicly sought to strip them of their rights and block a tool that has been used repeatedly to show police abuse. For a leading and generally liberal jurisdiction, Chicago has the ignominy and dishonor of leading the effort to fight core civil liberties in this area. [..]

It is otherworldly to see these abuses occurring in two usually progressive jurisdictions of California and Illinois. Alvarez has become the leader of this rogue’s gallery of prosecutors who have strived to jail their own citizens for monitoring police in public. It is, to put it bluntly, a disgrace. While Alvarez failed in her latest bid, she and other prosecutors remain undeterred in their desire to see citizens punished for such videotapes – tapes that have featured prominently in establishing false arrests and police abuse. Before such filming, abuse claims were overwhelmingly rejected with the denials of the officers. Now, there is often undeniable proof – proof that Alvarez and others want barred under the threat of criminal prosecution.

Prof. Turley also points out that the trend to protect bad police is not over:

We have been discussing the continued effort of prosecutors and police to jail citizens who photograph or videotape police in public. For a prior column, click here. Now, in California, another such arrest has been videotaped in California as Daniel J. Saulmon was charged with resisting, delaying and obstructing an officer when the video shows him standing at a distance and not interfering in any way with the arrest.

The officer immediately demanded to know what Saulmon is doing when it is obvious, as Saulmon indicates, that he is filming the scene. Saulmon states that he does not want to speak to the officer when asked for his identification and the officer immediately puts him under arrest. Ironically, the officer then tells him that he doesn’t need any identification since that will be handled at the booking. [..]

Saulmon reportedly spent days in jail. Such jailings serve as a deterrent for abusive police officers since few citizens want to face such incarceration as well as the cost of defending against criminal charges. Even when later thrown out (which often happen to such charges), the message is sent and the officers are rarely disciplined. I have little doubt that this case will be thrown out. The question is whether people in California will demand action to discipline the officer, who swore to charges that are clearly invalid and abusive.

And these cases from Maryland and Massachusetts

In Maryland in July, Anthony Graber got a well-deserved speeding ticket, but his real mistake was posting footage from his motorcycle helmet-cam on YouTube. It showed an irate off-duty, out-of-uniform officer pulling him over with his gun drawn. Prosecutors obtained a grand jury indictment against Graber on felony wiretap charges, which carry a 16-year prison sentence.

In Boston in August, the U.S. 1st Circuit Court of Appeals ruled unambiguously that the Constitution protects citizen videographers filming in public. In that case, attorney Simon Glik was walking past the Boston Common on Oct. 1, 2007, when he came upon three Boston officers arresting a man. Glik turned on his cellphone camera after hearing a witness say the police were being abusive. An officer told Glik to turn off his camera. When Glik refused, he was arrested for violation of the state wiretap statute, disturbing the peace and, for good measure, aiding in the escape of a prisoner.

The charges were dismissed after a public outcry, but in a later civil rights case, city attorneys fought to deny citizens the right to videotape police. The court rejected Boston’s arguments and found that the police had denied Glik his 1st and 4th Amendment rights.

Score one for the 1st and 4th Amendments.

Like other issues, the issue of money in politics is what will speak to what is or is not done in the next Congress more than the Presidential election of 2012. Unfortunately we didn’t hear about that in any of the debates thus far and it is the most important issue, because it spans to all issues and speaks to what hope legislation has of affecting the lives of real people.

Because of the daunting nature of this problem given how little money in relation to corporations real people have, it can feel rather hopeless. However, there are times when the creativity of certain individuals can make a difference as it has in the past.(PDF) That is where I am trying to make a difference using whatever talents I have because I have no money and very little voice or say in our real political process which is real pernicious hence the issue at hand.

The good people at GOOD Maker have set up a design contest to call attention to this dire and most important issue.

art > MONEY: Design to Define a Movement

You can vote for my piece here featured below, and if you like all my contributions in both writing and artwork over the years I ask that you please do because the competition is fierce and there are a lot of good pieces. You can vote using facebook which is probably the easiest way(don’t worry, I won’t know anything about your personal info and neither will anyone else) but if you don’t want to use facebook to vote, you can sign up to Good Maker which is probably a good idea because this organization uses creativity as an outlet for good things which made me want to get involved in this contest to hopefully do some good.

The 2012 term of the US Supreme Court traditionally begins on the first Monday in October. If the 2011 session is any indication, this term should be even more interesting as the court considers some of the most controversial issues facing this country from affirmative action to civil and voting rights.

When last we saw the chief justice of the United States on the bench, John Roberts was joining with the Supreme Court’s liberals in an unlikely lineup that upheld President Barack Obama’s health care overhaul.

Progressives applauded Roberts’ statesmanship. Conservatives uttered cries of betrayal. [..]

Many people on both the left and right expect Roberts to return to the fold and side with the conservative justices in the new term’s big cases. If they’re right, the spotlight will be back on Justice Anthony Kennedy, whose vote typically is decisive in cases that otherwise split the court’s liberals and conservatives. But Roberts will be watched closely, following his health care vote, for fresh signs that he’s becoming less ideologically predictable. [..]

Cases involving voting rights and marriage equality are expected to eventually land before the court, the former most likely sooner than the latter:

Voting rights: Several challenges to the 1965 Voting Rights Act are moving through district and appellate courts, and the high court is expected to take up one or more.

At issue is Section 5 of the law, a landmark civil rights achievement that prohibits nine states and municipalities in seven others from changing their voting laws without approval from the Justice Department or a special federal court. [..]

Same-sex marriage: The big question as the term begins is whether the justices will accept one or more cases involving the rights of gays and lesbians to marry. If they do, it may offer the best chance for a landmark ruling.

There are two possibilities. The most likely is that the court will accept a challenge to the 1996 Defense of Marriage Act, which has been declared unconstitutional in lower courts and which the Obama administration is refusing to defend. [..]

The other option is for the court to consider challenges to California’s Proposition 8, a 2008 referendum that overturned the state’s support for gay marriage. A broadly worded ruling against the referendum could pave the way for legalized gay marriage elsewhere, rather than just in New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa. More likely is a narrowly worded decision that affects only California.

Even if the court declines to hear the Proposition 8 challenge, that decision would be important, because a lower court has ruled against the referendum. Without high court review, gays and lesbians soon could marry in the nation’s most-populous state.

The SCOTUS calendar begins with Kiobel v. Royal Dutch Petroleum a major case about corporate accountability for extreme violations of human rights. The case was argued last term on narrow grounds but not decided.

At issue in the Kiobel case is the proper interpretation of the Alien Tort Statute (ATS), which provides, in relevant part, that foreign citizens may bring civil suits in U.S. district courts for actions “committed in violation of the law of nations or a treaty of the United States.”  Enacted as part of the Judiciary Act of 1789, the ATS lay almost forgotten

for nearly two hundred years.  But in 1980, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit breathed life into the statute, holding that the ATS conferred jurisdiction over a lawsuit brought by one Paraguayan national against another Paraguayan national (residing in the United States) for torture that occurred in Paraguay.  Since then, victims of human rights violations that occurred overseas have sought to rely on the ATS to press their own claims in U.S. courts.

An affirmative action case that wound its way from Texas will be heard. Under consideration is the court’s previous decisions interpreting the Equal Protection Clause of the Fourteenth Amendment

In Fisher v. University of Texas at Austin, the court will address how and perhaps whether the university can take race into account as a factor in student admissions. In a way, the case is a rehearing of a 2003 case (pdf) in which it ruled that the University of Michigan Law School could do so as part of assessing the whole of a candidate’s application. That decision seemed to reflect a national consensus that race, narrowly applied, could be used to ensure a diverse student body.

Two cases involving the Fourth Amendment involving unreasonable search ans seizure will also be heard:

In Florida v. Jardines, the issue is whether the police violated the Constitution by using a dog trained to smell for drugs to sniff at the door of a house where they suspected marijuana was being grown. Was the sniff test unreasonably intrusive because there was no hard information that illegal activity was probably occurring, as the Florida Supreme Court properly found, or was it not a search because it occurred outside the house?

Similarly, in Missouri v. McNeely, the issue is whether the police could order a blood test on a man suspected of drunken driving without obtaining a warrant because the delay in doing so would result in loss of evidence. The Missouri Supreme Court sensibly ruled otherwise: that the test constituted an unreasonable search because there was no accident to investigate and because there was plenty of time to get a warrant and test the driver’s blood before the alcohol in it dissipated.

Also, two cases that will rule on the right of the defendant to council

Ryan v. Gonzales raises the question of whether the defendant himself needs to be mentally capable of assisting his own attorney in challenging a death penalty conviction. [..]

Chaidez v. United States asks whether a 2010 ruling (pdf) of the court – that criminal defense lawyers must advise their noncitizen clients that a guilty plea carries the risk of deportation – applies to someone whose conviction became final before that ruling was announced.

Cross posted in Orange and Voices on the Square

I don’t know what to do. This is pretty daunting and I think half of the Democratic electorate still thinks that most of the dissenting 4 Liberal SCOTUS Justices voted against Citizen’s United because they reject corporate person-hood. They didn’t yet somehow we’re all pretending they did using it as a rallying cry in this election. I have to wonder why.

After all, Corporate person-hood is the basis as to why our so called Representative Democracy is bought and a sham, really. It started with how the 14th amendment to free African American slaves passed after the Civil War was used for this pernicious purpose as documented in The Corporation.

Our fake Representative democracy has been bought for quite some time even before Citizen’s United made things worse. In Glenn Greenwald’s piece about the Chick Fil-A controversy he gave us an important reminder too often overlooked in this campaign and overall talk of swinging the Roberts Court back.

Free speech and donations

Leave aside the fact that all 9 justices of the Supreme Court – from the most liberal to the most conservative – believe, and in Citizens United said, that corporations have free speech rights under the First Amendment, and that restrictions on how they spend their money for political advocacy can violate the First Amendment’s free speech clause.

The infamous line that was uttered by Clint Eastwood ‘s character, Harry Callahan from the 1983 film Sudden Impact.

This morning Associate Justice Antonin Scalia made the day of every  weapons of mass destruction lover’s day. During an interview with Fox News Sunday host Chris Wallace, Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. In Scalia’s opinion, under his principle of “originalism”, if the weapon can be “hand held” it probably still falls under the right to “bear arms”:

Referring to the recent shooting in Aurora, CO, host Chris Wallace asked the Supreme Court Justice about gun control, and whether the Second Amendment allows for any limitations to gun rights. Scalia admitted there could be, such as “frighting” (carrying a big ax just to scare people), but they would still have to be determined with an 18th-Century perspective in mind. According to his originalism, if a weapon can be hand-held, though, it probably still falls under the right o “bear arms”:

   WALLACE: What about… a weapon that can fire a hundred shots in a minute?

   SCALIA: We’ll see. Obviously the Amendment does not apply to arms that cannot be hand-carried – it’s to keep and “bear,” so it doesn’t apply to cannons – but I suppose here are hand-held rocket launchers that can bring down airplanes, that will have to be decided.

   WALLACE: How do you decide that if you’re a textualist?

   SCALIA: Very carefully.

Law Professor Geoffrey Stone of the University of Chicago observed in a guest opinion at Jonathan Turly’s blog:

Maybe Justice Scalia needs to see the photos of the carnage a semi-automatic weapon or a shoulder fired rocket launcher can create. Under this thinking, RPG’s might be legal for all citizens to own and carry.  Grenades can be hand-held and therefore under Justice Scalia’s warped sense of thinking, they too might be legal for citizens to carry.  Do we draw the limit at briefcase nukes that can be carried in one’s hand?

Obviously the theory that Justice Scalia is promoting can be carried to extreme and hilarious lengths.  The real scary part is that Justice Scalia doesn’t understand how hilarious and dangerous his concepts are in the real world. [..]

Since Justice Scalia thinks that these kind of weapons may be legal, is it too far-fetched to wonder if the current crop of right-wing Militia’s are free to purchase these kind of weapons, even if they hope to use them against the government?

Justice Scalia was nominated to the Supreme Court in 1986 by President Ronald Reagan with a Republican held Senate and the unanimous blessings of the Democrats. Al Qaeda must be thrilled.

N.B.: For more about Justice Scalia and his concept of “orginaliasm” read this article at Huffington Post written in 2011 by Prof. Stone: Justice Scalia, Originalism and the First Amendment

I haven’t paid too much attention to this uproar since I feel it is a distraction to the issue of real health care reform. But since everyone seems to think it’s significant, I will let our readers decide.

CBS News’ reporter Jan Crawford reported that Chief Justice John Roberts had switched his vote on the individual mandate, supporting it under the right of Congress to levy taxes, allowing the Health Care Law to stand.

After the historic oral arguments in March, the two knowledgeable sources said, Roberts and the four conservatives were poised to strike down at least the individual mandate. There were other issues being argued – severability and the Medicaid extension – but the mandate was the ballgame. [..]

On this point – Congress’ commerce power – Roberts agreed. In the court’s private conference immediately after the arguments, he was aligned with the four conservatives to strike down the mandate.

Roberts was less clear on whether that also meant the rest of the law must fall, the source said. The other four conservatives believed that the mandate could not be lopped off from the rest of the law and that, since one key part was unconstitutional, the entire law must be struck down.

Because Roberts was the most senior justice in the majority to strike down the mandate, he got to choose which justice would write the court’s historic decision. He kept it for himself.

Over the next six weeks, as Roberts began to craft the decision striking down the mandate, the external pressure began to grow. Roberts almost certainly was aware of it. [..]

It is not known why Roberts changed his view on the mandate and decided to uphold the law. At least one conservative justice tried to get him to explain it, but was unsatisfied with the response, according to a source with knowledge of the conversation. [..]

Never mind the ramifications on the limits the ruling puts on Congress’ ability to regulate interstate commerce, it completely ignored precedent (Wickard v Filburn). Roberts’ siding with the conservatives drew the ire of Senator Charles Schumer (D-NY):

Although he upheld the health care law on another basis, Roberts sided with the court’s four conservatives in declaring that Congress may not, under the Commerce Clause, force people to engage in a market transaction. The five-member majority view effectively rewrites existing law. It’s the first time since before the 1942 case Wickard v. Filburn, a precedent that was affirmed in the 2005 case Gonzales v. Raich, that the Supreme Court has placed a limit on Congress’s authority make national economic regulation that substantially affects interstate commerce.

In 2005, during Roberts’ confirmation hearing, Schumer grilled the soon-to-be chief justice on whether he would support the legal framework established by Wickard.

“Now it was reaffirmed in the Raich case and that is a precedent of the court, just like Wickard, that I would apply like any other precedent,” Roberts said at the time. “I have no agenda to overturn it. I have no agenda to revisit it. It’s a precedent of the court.”

TPM asked Schumer whether Roberts went back on his word in the ‘Obamacare’ decision.

“Yes he did,” the senator said. “If you read his testimony about Wickard, about some of the other, more recent Commerce Clause cases at the hearing, and looked at what he said here, it’s quite different.”

But the news media and some pundits are far more interested in who leaked the story

But who are those two sources?

GWU Law professor Orin Kerr, the one who got the ball rolling on this discussion, notes that Crawford’s story has details “only the justices and their clerks would likely know.”

“The leaks go into what the justices were thinking and what signal they meant to send with their actions,” he argues (and provides evidence – but you should read the story because there’s plenty). “Further, I doubt Crawford would run with a story with that kind of detail that was sourced less directly. So my best guess would be that the two sources she relies on are from the among the justices and their clerks.”

But Kerr rules out the clerks, simply because a clerk would be “crazy” to leak. “A clerk who leaked this and is identified has likely made a career-ending move. … Even assuming a clerk or two was so extraordinarily dismissive of the confidentiality rules to leak this, it would be nuts to leak over the weekend when you have to show up at the court for work tomorrow.”

Then law professor Paul Campos wrote this piece for Salon.com suggesting that there us strong evidence that Roberts penned both decisions:

It’s notable that Crawford’s sources insist on the claim that the joint dissent was authored specifically in response to Roberts’ majority opinion, without any participation from him at any point in the drafting process that created it. It would, after all, be fairly preposterous for the four dissenters to jointly “author” an opinion that was in large part written originally by the author of the majority opinion to which the joint dissenters were now so flamboyantly objecting.

Yet that, I am told by a source within the court with direct knowledge of the drafting process, is exactly what happened. My source insists that “most of the material in the first three quarters of the joint dissent was drafted in Chief Justice Roberts’ chambers in April and May.” Only the last portion of what eventually became the joint dissent was drafted without any participation by the chief justice.

This source insists that the claim that the joint dissent was drafted from scratch in June is flatly untrue. Furthermore, the source characterizes claims by Crawford’s sources that “the fact that the joint dissent doesn’t mention [sic] Roberts’ majority …  was a signal the conservatives no longer wished to engage in debate with him” as “pure propagandistic spin,” meant to explain away the awkward fact that while the first 46 pages of the joint dissent never even mention Roberts’ opinion for the court (this is surely the first time in the court’s history that a dissent has gone on for 13,000 words before getting around to mentioning that it is, in fact, dissenting), the last 19 pages do so repeatedly.

University of Colorado law professor Paul Campos broke the news on the Last Word that, according to his sources inside the Supreme Court, Chief Justice John Roberts wrote both opinions in the case involving President Obama’s health care reform law. MSNBC host Lawrence O’Donnell is rejoined by Prof. Campos and author Glenn Greenwald to take about the leaks, Roberts’ vote and what it say about the institution of the Supreme Court.

So the right is flipping out because Roberts voted with the “liberal” justices to uphold the law based on a twisted view that the penalty for not buying health care insurance is a tax. The so-called “left” is cheering but totally misses the long term problems this ruling has created. I still say the “leaks and who did the leaking” is a tempest in a tea pot that is distracting from the main issue that this country needs universal health care.

First, this morning House Majority Leader Eric Cantor (R-VA) made the rounds of talk shows spouting how the Affordable Health Care bill can be repealed with a simple majority in the House and Senate since the bill was passed under reconciliation. Without a filibuster proof majority in the Senate, Ryan Lizza at The New Yorker points out the obstacles for that to happen:

Many Republicans, especially in the blog and talk-radio swamps, would cry, “Use reconciliation!” Readers familiar with the congressional debates of 2009-2010 will remember that this procedure allows certain budgetary measures to pass through the Senate with a simple majority. [..]

But reconciliation wouldn’t work here-the process can only be used for policies that have budgetary effects and a C.B.O. score. Much of the A.C.A., such as the insurance exchanges and subsidies, would fall under these categories. But a lot of it, including the hated individual mandate, does not. Repealing the exchanges and subsides without repealing the mandate and the other regulations and cost controls in the law would create a health-care Frankenstein that a President Romney would be rather nuts to support.

That said, the SCOTUS ruling has some rather complex ramifications and Chief Justice Robert’s ruling was rather sly. First was there are the three bit from SCOTUSblog that Lambert Strether pointed out at Corrente:

First, here’s the reasoning:

   Essentially, a majority of the Court has accepted the Administration’s backup argument that, as Roberts put it, “the mandate can be regarded as establishing a condition — not owning health insurance — that triggers a tax — the required payment to IRS.” Actually, this was the Administration’s second backup argument: first argument was Commerce Clause, second was Necessary and Proper Clause, and third was as a tax. The third argument won.

Second, here are the implications for the role of the State as we have understood it from the New Deal onward; what Phillip Bobbitt would call a change a Constitutional Order:

   The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws.

Third, here is the new Constitutional Order:

   Using the tax code — especially in the current political environment — to promote social welfare is going to be a very chancy proposition.

Chancy or not — and it will be the precariat that suffers mischance, and not the elite, in any case — that’s what they’re going to do.

Next from Scarecrow at FDL News Desk who argues that Chief Justice Robert’s “incoherent decision” will “shackle congress” and “screw millions of uninsured:

In the process, he did violence to constitutional law and logic.  Consider, for example, Robert’s logic on the “mandate.”  In saving the “mandate,” Roberts essentially defined it as not a mandate.  You are not really required to purchase insurance, he noted; instead, you may choose not to purchase insurance and instead pay a minor tax.  As we know, taxing is just a way to collect revenues, a contribution to the common, aggregate costs of public programs.  In this case, the program is paying for many people’s health care through a system of risk/cost sharing.

But if the so-called mandate is not really a mandate but rather an option that can be avoided by paying a tax, and if a legitimate purpose of this tax, as government and amicus briefs argued, is to help cover aggregate costs across a pool of many insured and uninsured people, then what does that do to Robert’s argument about the Commerce Clause?  When arguing about the Commerce Clause, Roberts insists it’s a requirement to purchase a “product,” which forces you to take an action, and thus to engage in commerce when you would not otherwise have done that.  Regulating “inaction” is not permissible, Roberts argues.

But if, as Roberts concludes, the “mandate” is not a mandate, and the tax’s purpose is to help cover pooled costs, and not to buy a “product,” then there is no “mandate” to purchase a “product.”  So no one is forced to engage in commerce as Roberts framed it.  Indeed the “commerce” is already there in the risk sharing system across millions of people, all engaged in commerce by paying premiums into a pooled risk scheme.  Robert’s entire premise for striking down the Commerce Clause rationale is thus contradicted by his argument about how it’s permissible for Congress to enact a tax to support funding of collective health care costs.  That’s what the tax does; but it’s also what paying insurance premiums does.

Roberts’ reasoning on Medicaid is equally illogical. His premise is that Congress cannot expand an existing program administered by states that depends on shared state/federal funding by conditioning funding for the whole program on the states actually implementing the expansion.  As Brad DeLong observes, if Congress were just now creating a fully expanded Medicaid, to be implemented by states but mostly paid for by the feds, there would be no question that Congress could condition federal funding on the states actually carrying out the programs.  But if the program already exists for half the needy population, Congress cannot complete the program for the other half and use the same leverage to achieve the same degree of state cooperation.

As per the CBO, if the states actually implement the expansion and make an effort to get those eligible to sign up, 16 to 17 million more people will have health care coverage. But without that leverage to get the states to accept Medicaid expansion it leaves the poor between around 50% and 133% of the poverty line in a real no man’s land, because they would both be ineligible for Medicaid AND the coverage subsidies in the exchanges.

As for the states voluntarily opting in for the Medicaid expansion, David Dayen doesn’t think that will happen either, even though the cost for the states would only be responsible for less than 10% of the costs.

And being on the hook for even a small amount of funds isn’t going to make any of these governors happy. Heck, here’s a Democrat, former West Virginia Governor and current Senator Joe Manchin, making the argument for them:

   We should all recognize that the health care challenges that many West Virginians and Americans face are not going to go away unless Congress takes additional action to repair this bill. Now that the Court has ruled, we can move forward with fixing what is wrong with this bill and saving what is right. I have always been determined to reduce the burden on states from the Medicaid expansion, and this ruling affirms my position – and makes clear that states must have the flexibility to live within their means by determining Medicaid eligibility as each state sees fit. I have always said one size doesn’t fit all.

That’s going to be a compelling set of logic for a non-trivial number of governors. They’ll also distort how much the expansion would put their states “on the hook.” 26 states sued to eliminate the Affordable Care Act entirely, and they almost got there. Why wouldn’t they jump at the chance to eliminate the portion that creates half of the coverage benefits?

This isn’t going to be universal. New Mexico’s Republican Governor Susanna Martinez, for example, certainly sounds like she’ll take the money. But Southern states in particular, who paradoxically house the citizens most in need of the Medicaid expansion coverage, will be likely resisters at the outset. And it’s not like a lot of success in modern America comes from rallying at the grassroots level for poor and disenfranchised people.

As was noted by Ezra Klein of the Washington Post, opponents of the ACA see this as a win:

“We won,” said Georgetown law professor Randy Barnett, who was perhaps the most influential legal opponent of the Affordable Care Act. “All the arguments that the law professors said were frivolous were affirmed by a majority of the court today. A majority of the court endorsed our constitutional argument about the Commerce Clause and the Necessary and Proper Clause. Yet we end up with the opposite outcome. It’s just weird.”

Yes, it’s weird but so was the whole ACA bill from the very start.

Up Date: SCOTUS has ruled the individual mandate unconstitutional constitutional but redefined as a tax.

Up Date: As per MSNBC, the mandate was upheld but redefined as a tax. There is some confusion as to whether that means it is unconstitutional or not.

Up Date: Roberts votes with the four “liberal” justices.

Quotes from SCOTUS Blog:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

On the Medicaid issue, a majority of the Court holds that the Medicaid expansion is constitutional but that it w/b unconstitutional for the federal government to withhold Medicaid funds for non-compliance with the expansion provisions.

Another way to think about Medicaid: the Constitution requires that states have a choice about whether to participate in the expansion of eligibility; if they decide not to, they can continue to receive funds for the rest of the program.

In other words, states can opt out of ACA without losing federal funding for Medicaid.

Rejection of mandatory Medicaid expansion –at time of slashing of safety nets–could be devastating to most vulnerable.

— Katrina vandenHeuvel (@KatrinaNation) June 28, 2012

Up Date: More from SCOTUSBlog:

In Plain English: The Affordable Care Act, including its individual mandate that virtually all Americans buy health insurance, is constitutional. There were not five votes to uphold it on the ground that Congress could use its power to regulate commerce between the states to require everyone to buy health insurance. However, five Justices agreed that the penalty that someone must pay if he refuses to buy insurance is a kind of tax that Congress can impose using its taxing power. That is all that matters. Because the mandate survives, the Court did not need to decide what other parts of the statute were constitutional, except for a provision that required states to comply with new eligibility requirements for Medicaid or risk losing their funding. On that question, the Court held that the provision is constitutional as long as states would only lose new funds if they didn’t comply with the new requirements, rather than all of their funding.

Essentially, the individual mandate of the ACA was upheld under the right of the government to tax individuals. Chief Justice Roberts agreed with that and voted with Ginzburg, Breyer, Kagan, Sotomayor.

The court also ruled if individual states opt out of the ACA, they cannot lose current Medicaid funding. They will only lose new funding.

Up Date: From Lyle Denniston at SCOTUSBlog:

The rejection of the Commerce Clause and Nec. and Proper Clause should be understood as a major blow to Congress’s authority to pass social welfare laws. Using the tax code – especially in the current political environment – to promote social welfare is going to be a very chancy proposition.” This is a big deal. Congress in the future may have to use far more of the taxing power than they are comfortable with. This is still a conservative ruling in many respects.

National Federation of Independent Business v. Sebelius (pdf)

In his dissenting opinion on the Arizona v. United States, Supreme Court Justice Antonin Scalia went on a politically motivated rant that was directed at President Obama’s directive that would allow 800,000 undocumented immigrants who are under 30 came here as children to legally remain in the US. Not only was Scalia’s partisan political rant an embarrassment for the Court, it was factually wrong and racist.

First the facts that Scalia misrepresented and skewed. The Justice made this statement (pdf):

After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30. If an individual unlawfully present in the United States

   “• came to the United States under the age of sixteen;

   “• has continuously resided in the United States for at least five years . . . ,

   “• is currently in school, has graduated from high school, has obtained a general education develop­ment certificate, or is an honorably discharged veteran . . . ,

   “• has not been convicted of a [serious crime]; and

   “• is not above the age of thirty,” . . . .

   The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conduct­ing as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonen­forcement program envisions, will necessarily be deducted from immigration enforcement.

Part of the President’s reasoning for this order is the fact that congress has failed to provide the the $285 billion cost of deporting every illegal immigrant currently in the US and decided to use the limited resources available by focusing on undocumented immigrants who commit serious offenses and shifting resources away from college students and veterans. Scalia’s math is a bit off by some 600,000 more immigrants than is estimated to be affected by the President’s new policy.

Now to the really egregious racist spew that relied on racist Post Civil War laws that prohibited freed slaves from moving into Southern States:

Notwithstanding “[t]he myth of an era of unrestricted immigration” in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted crimi­nals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration

This is comes on the heels of Scalia’s defense of tortute, his dismissal of the execution of innocent people at the hands of the states and his homophobia and his inability to distinguish legal arguments from political talking points

Scalia doesn’t seem to care that in his dotage he is sounding increasingly unhinged and more and more like a right wing talk radio host. Even Chief Justice Roberts should be embarrassed by this racist bile. If Scalia can’t control himself, he should be removed from the Court, if he doesn’t have the good sense to remove himself into retirement.  

The latest session of the US Supreme Court is coming to a close with several decisions handed down since last Thursday, that peaked today with several rulings handed down. The “grand finale” will be this Thursday when the court announces its decision on the constitutionality of the Affordable Care Act. The media has been focused mostly on today’s ruling that gutted three quarters of Arizona’s controversial immigration law, S.B. 1070. The overturn of a 100-year-old Montana state law that banned corporations in that state from spending any of their corporate cash to support or oppose a candidate or a political party and the ruling that struck out any requirement that life without parole be the mandatory penalty for murder by a minor got second and third billing.

What the media chose to ignore was last Thursday’s 5 -4 decision in Knox v. Service Employees International Union (SEIU) that dealt a blow against public sector labor unions and in favor of employees who are represented by a union but are not members:

The case has three holdings: (1) When a public-sector union imposes a special assessment or dues increase, the union must provide a fresh Hudson notice (the Court’s vote on this issue was seven to two); (2) the union cannot require nonmembers to pay the increased amount unless they opt in by affirmatively consenting (vote of five to four); and (3) the case was not rendered moot by the union’s post-certiorari offer of a full refund (unanimous).

So what you say? Why is this an important ruling? It’s important because it requires Unions to do something that corporations aren’t. It requires unions to get permission from their non-members, who pay fees so they are covered by SEIU-negotiated contracts, before that money can be used for political spending. Instead of the traditional “opt-out”, the now have to “opt-in.” Corporations are not required to get share holders permission to spend millions on a political campaign. This could significantly impact on labor’s ability to fight back against corporations in the political arena. It restricts the union’s First Amendment rights to spend unlimited amounts under the 2010 Citizens United ruling:

“The court’s opinion makes clear its displeasure with 60 years of precedent on the dues issue, which have placed the burden on employees who object (to political spending) to opt out,” said William Gould, who from 1994 to 1998 chaired the National Labor Relations Board, the federal agency that governs labor relations in the private sector. “This decision is an invitation to litigate this issue.”

Although the Knox case involved special assessments on non-union members, Gould said, the Supreme Court’s reasoning suggests that it could be applied to all union dues that fund political spending paid by non-members. The next time that a union goes through the standard process of notifying non-members they have the ability to opt out, the union may well be met with a legal challenge, warned Gould. “(This decision) indicates that if these five (justices) are there when these cases come back to the Court, that the Court will decide these cases adversely to unions,” he said.

That thought has the National Right to Work Legal Defense Foundation, which represented the plaintiffs in the case, and similar groups celebrating — and labor advocates fearing the worst.

Patrick Semmens, vice president of the foundation, said via email that while some justices have used similar language in the past, the Knox decision confirms that now a majority believe “compulsory unionism” is a violation of First Amendment rights.

SEIU Secretary-Treasurer Eliseo Medina pointed out that while this complicates matters for unions it is “doable”. But he also noted that this decision was one sided in that “There is nothing in this [Knox] decision that even speaks to the question of shareholders, or corporations having to tell shareholders about any of the contributions they make, [..] “The language, to me, signals what has been the rightward drift of the Supreme Court … Now they’ve come up with a decision to make it more difficult for workers to be able to effectively participate in the [political] process.”

MSNBC host Rachel Maddow and her guest, legal correspondent and senior editor for Slate Dahlia Litwick discussed all of these rulings with emphasis on the Knox ruling.

As was expressed in it opinion on June 23, the New York Times rightly noted:

The conservative majority strode into the center of the bitter debate about right-to-work laws preventing unions in 23 states from requiring nonmembers to pay any union expenses, including those supporting collective bargaining that benefits nonmembers. It used this narrow case to insert itself into that political controversy when there was no reason to do so.