Tuesday, December 13, 2011

Kagan Sets Up The Sucker Punch

U.S. Supreme Court Justice Elena Kagan has recused herself from the upcoming appeal of the State of Arizona challenging the ruling of the Ninth Circuit Court of Appeals which struck down the major enforcement provisions of Arizona's tough immigration enforcement law. She has done the right and ethical thing.

Simply put, Arizona's law included among other things a provision that during the course of a lawful stop or arrest, the police officer could inquire into the individual's immigration status if he had a reasonable suspicion that the person was in the country illegally. The police could then hold the suspect pending determination of his immigration status. If the person turned out to be in the United States illegally, the Arizona authorities would then turn the suspect over to the federal immigration authorities. The Obama administration successfully took Arizona to court, claiming that this was unconstitutional interference with the federal government's sole authority over immigration.

Arizona argued unsuccessfully that it had a compelling state interest in protecting its lawful citizens, and that the new law merely provided a means by which the federal authorities could be made aware of an illegal immigrant by use of ordinary and established state and local police procedures. The law did seem to grant power to the state to establish its own rules on immigration, and did provide for certain non-investigatory detention beyond the initial inquiry into the person's immigration status. The law did not allow or require the state to take any further action against the detainee such as deporting him from the United States, but there were some criminal sanctions for being present in Arizona illegally. Arizona argued that its law merely reported illegal immigration, while the Obama administration argued that it regulated immigration, a solely federal prerogative.

The law does make it a crime for an undocumented worker to be present in the state. And the law makes it a crime to fail to register with the federal government or attempt to take work or hold a job without government authorization. Unlike the "reasonable suspicion" provision, these provisions do seem to skate very close to the edge of federal supremacy. In any event, all the provisions mentioned were stricken by the federal judge, and his ruling was upheld by the Ninth Circuit Court of Appeals. It will be up to the Supreme Court to sort these provisions out.

A federal judge and ultimately the Ninth Circuit Court of Appeals found against Arizona. Arizona appealed, and the US Supreme Court has now granted certiorari (agreed to hear the case). Justice Kagan immediately recused herself and made a public statement as to why she was doing so. As a senior attorney at the Justice Department (Solicitor General), she had played a major role in the early litigation against the Arizona law. Good for her. She did the right thing. Why she did the right thing may yet turn out not to be quite so honorable.

Caution: What follows is comprised largely of my opinions about anyone or anything having to do with the Obama administration, combined with a healthy dollop of paranoia and suspicion. I'm not stating anything except the jurisdictional matters as fact, and if this turns out to be a debate over Kagan's intentions versus my wariness, that would be a good thing.

I'm sure that every one of you is sophisticated enough to know that the state challenges to Obamacare will be wending their way to the Supreme Court. Different appellate districts have made diametrically opposite decisions, and it's up to the Supreme Court to resolve them. Mounting evidence shows that Justice Kagan was deeply involved in the preparation and final versions of Obamacare while she was Obama's Solicitor General. In fact, within just a few days before the passage of Obamacare, Kagan wrote to the Justice Department's Office of Legal Counsel that a lawsuit was being prepared to block the House from "deeming" the measure passed by a quirky procedural rule if it didn't get enough votes. She not only alerted them, but made suggestions as to how to defend against the lawsuit.

She even went so far as to alert the Office of Legal Counsel of all the arguments which were being prepared against the procedural trick (by a former Tenth Circuit US Appeals Court judge who is now Director of the Constitutional Law Center at Stanford University). During her confirmation proceedings, Kagan was asked for a written response to the following question posed by the Republicans on the Judiciary Committee:

"Have you ever been asked about your opinion or offered any view or comments on the underlying or constitutional issues related to any proposed health care legislation, including, but not limited to Pub. L No. 111-148 PPACA (the Patient Protection and Affordable Care Act) or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?" Kagan answered "no."

Kagan's early opinions of the efficacy of socialized medicine offered as a professor of law at Harvard (pictured) would not automatically require her to recuse herself from considering the Obamacare cases at the Supreme Court. Every professor of law (except possibly Barack Obama) has legal opinions. They'd be pretty dumb if they didn't. Most prominent law professors have written law review articles (again, except Barack Obama, editor of the Harvard Law Review). Those articles frequently go against current prevailing law. But those opinions are largely political abstract law in nature until they start coming down from the bench. So her early legal career was important to the process, but not necessarily to her ultimate confirmation.

So where am I going with this? From everything I've seen and read, Kagan's involvement in Obamacare was at least as deep as her involvement in the Arizona statute controversy and litigation. Her self-recusal from the Arizona case leads me to think that doing the right thing in that case was a red herring, designed to draw attention away from Kagan's personal views and actual involvement in the preparation of the Obamacare legislation.

She, her liberal Democratic friends and their errand boys in the mainstream media can now point out how upright, honest and ethical she is about not hearing cases in which she has been personally and professionally involved. When she refuses to recuse herself from the Obamacare decision, as I expect she will, they can all say "why look, she recused herself in the Arizona case, so if she doesn't recuse herself here, it's because her hands are clean and she is justified in hearing the matter."

Along with her "recusal credentials" she is likely to claim that if she has to recuse herself, the same should be required of Justice Clarence Thomas. Well, hooey. Thomas had no personal or professional involvement in passing or litigating Obamacare. His wife is an ardent anti-socialized medicine advocate. So what? She's not sitting on the bench, he is. And unlike Obama, Thomas does not allow his wife to make his decisions for him. Double red herring.

Maybe I'm just getting old and cynical. But I suspect Kagan's self-recusal in the Arizona case is even more cynical. Sorry, folks, I just don't trust their phony good intentions. So, what do you think?


AndrewPrice said...

Three thoughts.

1. There is no way she should not recuse her. Just being involved in crafting the legislation should be enough for a judge to have to recuse themselves. BUT that doesn't mean she will. I suspect she ultimately will so they can apply pressure to Thomas to delegitimize him, but that's just a guess. Whether she does or doesn't will depend entirely on her because no one can make her.

2. I don't think it matters to the case (though it will matter to her reputation). The court is split 5-4 on political matters. 5-4 is still a win. 5-3 is the same as 5-4. So in the end, I don't think it matters.

3. I was told there would be softball. ;)

Martino said...

Just another politician playing the game. In when its convenient, out when its more convenient. Why are we surprised by this?

I think tracking this type of stuff and publicly posting it will show the trends.

Unknown said...

Andrew: There is always that swing vote that neither side can count on. It's likely you're right on the split, but I'd feel more comfortable with her out. More importantly, as you pointed out, she should recuse herself.

Politically, Democrats count a 5-4 loss as a "near-win" in preparation for their next opportunity to put a liberal on the bench to replace a conservative. It's harder for them to do it with a 5-3. Which once again shows how a Kagan recusal on Obamacare is as much political as legal.

And you know very well that Commentarama only plays hardball. LOL

Unknown said...

Martino: Welcome. Kagan, like Sotomayor, is a doctrinaire liberal who believes that her job is as much political/social as it is legal/constitutional. What would be a surprise would be if she recuses herself without demanding a quid pro quo from Thomas. Of course it's unlikely that she would make that demand directly. But she has plenty of surrogates in the leftist community and among "law professors."

Individualist said...


Please help a poor ignorant plebian like me out here...

"The Obama administration successfully took Arizona to court, claiming that this was unconstitutional interference with the federal government's sole authority over immigration."

OK here are all the secions of the US Constitution and or Bill of rights that I found which apply or did apply until 1808..

Article I Section 9
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

I see nothing granting the US government authority over the states in this matter however the language in Section 9 implies that Congress will have authority after 1808.

So what is my mind not educated in legal matters missing here.

Tennessee Jed said...

Hawk - this ploy goes all the way back to an article you wrote about the left trying a myriad of things to impeach or discredit Justice Thomas. At the time, we both thought it was all a lead up to OBamacare case. As Andrew just pointed out, they are already looking at a possible 5-4 loss. They figured Kagan would have to recuse and desparately need to get Thomas out of the way to even have a chance.

Joel Farnham said...


I suspect you are right. The reason to recuse yourself is a self-discipline decision. You must either have self-respect or want respect from people you like.

I personally think that it is the latter. Remember, she was an academic. She is now a Supreme. Answerable only to her peers.....The other Supremes. If Kagan doesn't recuse herself, she will lose the respect of the only peers she has.

Yes, she is a Marxist, but now she is part of an elite group. I didn't know she even existed until she was appointed to the Supreme Court. Her activism wasn't very active. Also, her writing and opinions aren't highly visible. Not really noted for anything except being an Obama biyotch. Now, she is a Supreme! Appointed for life, not even Obama can touch her.

My problem right now is that there are people who seriously argue that she shouldn't recuse herself.

Unknown said...

Indi: I think you should consider law school. That's an excellent question, and I'll try to be as brief as possible in my answer (it's worth a full day's lecture in Constitutional law). Article I, Section 9 was one of those matters which had to be settled regarding citizenship and migration that was left unsettled during the Articles of Confederation. It was aimed at migration from state to state rather than migration from foreign nations. This section established that once the provision became operative, states could no longer treat other states as foreign nations.

As for the Tenth Amendment, your query has given law instructors (including me) considerable heartburn over the years. I happen to be one of those oddballs who believes that the Constitution expressly provides for absolute prohibition against state citizenship discrimination against the citizens of other states, but not against citizens of foreign nations solely as it relates to immigration.

If the Founders had meant for immigration from outside the United States to be within the sole purview of the federal government, they would have said so. Therefore, the Tenth Amendment applies since that power is not specifically or particularly granted to the federal government.

So how did we get to the point that most people assume the federal government has sole power over immigration? First, the President is given the power to treat with foreign nations, subject to the approval of the Senate and enabling funding legislation from the House of Representatives. The states are not in this formula.

Then there's that third branch. Possibly out of lethargy or commitment to other issues, the states rarely interfered with federal immigration policies vis a vis foreign nations. From the beginning of the Republic, courts have upheld federal immigration policies with few state challenges. So the weight of precedent leans toward exclusive federal jurisdiction.

Historically, up through the end of the 19th century, the states hungered for immigrants to build their populations, provide cheap labor, and support the infrastructure. Unlike today, the states were more worried about the federal government restricting immigration than about the federal government being too lenient or too imperious. By default, almost all cases went in favor of the federal government.

Therefore, history and precedent have been on the side of the feds, but history evolves and precedent can be changed by good lawyering.

DCAlleyKat said...

I've learned with them it's rarely about what appears on the surface and almost always about things yet to come, and they'll do whatever it takes to try to make the public think otherwise. What a shame for our nation to have so many citizens with no ethics, and I mean a shame. Amymore these people make me sick to my stomach, and more determined than ever to get them out or at least expose them and minimize their affect on the nation.

Unknown said...

Tennessee: One thing you have to give them credit for that the Republicans seriously lack and that's long-term planning.

Unknown said...

Joel: Her Harvard politics were very radical, and her views on the living Constitution deplorable. Since these types have no shame, they don't care what others may think of them as long as their fellow progressives love them. "Virtue is its own reward" is Greek to them.

Unknown said...

DCAlleyKat: No ethics and damned few morals for these people. If given the choice between doing what's right and what's expedient, they always choose expedient.

Joel Farnham said...


Yes, you are right. As long as their peers are happy, progressives don't care what others think.

Kagan's personal dynamic has changed. Her peers now number 8 Supreme Court judges, not 20,000 professors. Believe it or not, she cares about what they think.

Still, I think she won't recuse herself... at first, she will say, she will recuse if Thomas does.... When he doesn't, she won't.

Unknown said...

Joel: I think you're being generous. Her "peers" include three other justices, and five she thinks are unqualified. LOL

In actuality, Supreme Court justices on the liberal side really do care deeply what the bigtime law professors think about them. People like Kagan are convinced they are right, but they need the affirmation of their fellow-travelers. If most prominent (meaning "popular") law professors were conservative strict constructionists, Kagan and Sotomayor would suffer from perpetual depression.

I concluded the same thing about Kagan (and Thomas) recusing themselves on the Obamacare case. Both go, or neither goes, even though it's clear Kagan should recuse.

USS Ben USN (Ret) said...

Excellent post, LawHawk!

Can Congress impeach Kagan for lying to them so blatantly?

Unknown said...

USSBen: As Jerry Ford said when he was still in Congress, "we can impeach someone if we don't like the color of his tie (if we have the will and the votes)." The chances of impeachment for lying about involvement at some point in pending legislation or litigation are slim, but not nonexistent. It has to be a material fact, and it had better be one that there can be no confusion about. Congress critters have to be practical, and they're all afraid someone will dig up some dirt on them and retaliate.

I think in this case, Republicans have learned a lesson in practicality from the Clinton impeachment. Clinton clearly and unequivocally lied under oath, yet there weren't enough Senators who would vote to convict him and remove him from office. I think it would take a lot more hard evidence combined with a House willing to impeach and a Senate willing to convict. We're just not there quite yet.

Individualist said...

We can't even impeach a President wnho sexually harasses and intern and lies about it under oath to congress so I think Kagan will get a pass.

Lawhawk thanks for the explanation. I find it really intriguing that we can take a document like the constitution and through a series of case law find things that are not within it and to my mind anyway find rulings that contradict it completely.

For me the separation of church and state rulings starting with MArshall fall under this.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"

Somehow we got from this statement that the government had a right to ban prayer anywhere even on government property.

The case that gets me is that schools were stopped from allowing a benediction at a graduation even if it was nondemoninational. This to my mind is a one in a lifetime event and a benediction is a call for grace at a specific time and has meaning. It really can't be replaced. Bhy not allowing it in any form you truly interfere with someone practicing their religion.

Yet in the name of tolerance we state it must be banned because we are supposed to understand that peopleshould be offended by someone's religion. Even if we work diligently to make the prayer nuetral invoking the Lord instead of Jesus it still must be banned. To my mind the ruling of the courts stating that the ban should be upheld is a violation of the first ammendment. You can't ban someone's practice of religion simply because you are offended by it.

I can understand a set time, allowing the worshippers to go off the side and other reasonable restrictions to keep an event from being a religious service others must attend. That being said, a short time allotted in a graduation so that a few words of praise can be made for the benefit of the religious in the crowd does not meet this standard.

The problem I see is that when people talk of the first ammendment they state "Separation of Church and State" which is not mentioned in the Constitution and are ignorant to the words "or prohibiting the free exercise thereof". Thus we accept things like banning benidictions at graduations and the arguments that are to my mind an attempt ban or attack religious exercise.

Sorry for the long post but there is a question that I am getting too. I realize I'd be clearer if
I had more brevity. What if anything can be done to correct precedent that is leading us down a path that conflicts with the constitution especially with the Marshall "Separation of Church and State" doctrine but there are many other instances I am sure. I see this as a problem and I am not sure how you counteract it.

Unknown said...

Indi: A lot could be done if we get rid of Obama and elect a substantial Senate while holding onto our margin in the House. The next Supreme Court appointment could also be crucial. This all started with the Warren and Burger courts and has been going on for five decades. It's time to reverse it. The leftists and anti-religionists believe that any religious display on public property is "promoting" religion. It isn't. The arguments in favor of banning religion entirely from the pubic forum are specious and vicious, but until Congress passes pro-religious freedom statutes and the Supreme Court undoes the Warren Court decisions, we're stuck. But it can be done.

tryanmax said...

Arizona argued that its law merely reported illegal immigration, while the Obama administration argued that it regulated immigration, a solely federal prerogative.

Thank you for this succinct overview. I am a talk-radio junkie and yet in countless hours of listening, I have never heard such a brief and cogent description of the matter at hand.

Of course, the talkers either want to downplay the fed's case or the state's case, depending on their bias, to make the whole thing seem more cut-and-dried. This is why I always listen with a web browser open.

Unknown said...

tryanmax: Thanks. It really boils down to that. What's interesting is that there will be five separate provisions of the law that the high court will review (which were also mentioned in the article), but big (landmark) decisions are based on the overriding legal philosophy of the case taken as a whole. And the reporting vs. regulation argument is that philosophy.

rlaWTX said...

I knew it! @#$%&

Unknown said...

rlaWTX: My sentiments exactly.

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