Supreme Court ObamaCare Wrap-up!

It seems the individual mandate in ObamaCare is doomed. The question now is whether or not all of ObamaCare will be struck down. I originally doubted that it would be, but now I’m thinking it might be. One thing is for sure though, losing will not help the Democrats as many of them are trying to suggest.

● Thought One: Down she goes! The Supreme Court will strike down the individual mandate. Kennedy was considered the weak link for the conservative side but even he observed that ObamaCare “changes the relationship of the Federal government to the individual in a very fundamental way.” That’s lawyer speak for “unprecedented power grab.” This court will not sanction an unprecedented power grab. The mandate is toast.

● Thought Two: Incompetence. The MSM’s legal analysts should be fired for incompetence. When this lawsuit was first filed, they claimed it was “frivolous.” In legal parlance that means the arguments are so ludicrously wrong that no rational attorney could possibly make those arguments in good faith. Even as late as two days ago, these same “experts” predicted ObamaCare would win on a 7-2 vote. Now they’re despondent that ObamaCare will be beaten. To give you a sense of how wrong this is, it’s like an “expert” in aviation claiming that airplanes are too heavy to fly. . . after having flown to the interview on a Boeing. Everyone who claimed this was frivolous should be fired for incompetence.

● Thought Three: Incompetence (redux). Everyone now wants to blame the solicitor general for blowing this case. That’s wrong, and the “experts” know that. The Supreme Court does not base decisions of national significance on which side brought the better lawyer. All Verrilli’s incompetence means is that the court will do its own research into these issues. And don’t forget, “it’s own” in this case also means hundreds of legal briefs filed by friends of both sides (amicus curiae briefs). This case never hinged on the performance of either attorney. So don’t let liberals get away with pretending that the law should have been found valid if only Donald Verrilli weren’t such a moron. That is false and it’s meant to distract from the fact this law was an abuse of power.

● Thought Four: Severability. The hardest part of guessing Supreme Court decisions is guessing how far they will go. Right now, we have no way to know if the Supreme Court will strike down the entire law or just the individual mandate. They essentially have three choices: (1) strike the whole thing, (2) strike the mandate but leave the rest, or (3) strike the mandate and send the case back to the lower court to gather more evidence on what other parts also should be struck. Logic tells me, they will pick number three, but this court has proven to be bold.

Politically and legally speaking, it makes sense for the Supremes to strike the mandate and send the rest back to the lower court to gather evidence on which parts of the law rely on the mandate. Why? Because the court doesn’t like to decide things it doesn’t need to, and with the Republicans likely to control the House, Senate and Presidency after the election, the Supremes have the luxury of waiting to see how things go, i.e. Congress may do their dirty work. BUT. . . should Romney NOT win, then the 5-4 Court could end up a 4-5 Court. That fear may give this court an incentive to firmly decide as many things as possible right now -- hence, they are unexpectedly taking an affirmative action case next year.

Right now, the comments of the justices indicate they are leaning toward striking the entire thing. Scalia took the lead here and said that when you “take the heart out of the statute, the statute is gone.” His reasoning is simple: it distorts the congressional process for the court to pick and choose what survives. He also said it would be unrealistic to comb through the 2,700-page law to decide which parts were independent of the individual mandate. Liberal Justice Breyer actually echoed this when he asked the government, “What do you suggest we do? I mean, should we appoint a special master [to go through the law]?” He then placed the blame on the government for not specifically pointing out each provision which should stand. That’s usually a sign of a justice washing their hands of the case. I don’t believe Breyer will vote to strike the entire law, but this tells me he thinks the conservatives will and he is at peace with it.

Kennedy, who is viewed as the swing vote, also appears inclined to throw out the entire law. When Ginsburg said that the court should perform a “salvage job” rather than “a wrecking operation,” Kennedy retorted that doing surgery on the law would be “a more extreme exercise of judicial power.” And he said that “by reason of the court, we would have a new regime that Congress did not provide for, did not consider.” In other words, this would be court-created legislation and that is unacceptable.

The justice who concerns me a bit is Roberts. When it was argued that leaving the rest of the law in place would leave “a hollowed-out shell,” Roberts responded by saying, “but Congress would have passed part of that hollowed-out shell.” That could indicate a desire to leave the repeal up to Congress or at least get more information about Congress’s intent (i.e. send it back to the lower court for more evidence). That was the thrust of Ginsburg’s argument, that Congress must decide this, so they should leave the rest in place and let Congress fix it. But the thing about Ginsburg’s argument is that you can flip it on its head and make an equally valid argument. In other words, you can just as validly say that if Congress must make the decision, then the court should strike the law to give Congress a clean slate. That makes her argument worthless and if that’s all she’s got, then her side is out of ammo.

So while I really can’t tell you what will happen, it looks like it’s 4-4 with Roberts at bat, and I suspect he will strike the entire law because I’m not hearing a good reason not to.

As an aside, let me clarify the severability clause issue. People are claiming the absence of the severability clause means the whole law should be automatically struck down. That’s not accurate. That was the law 200 years ago -- if any portion of the law is bad, the whole thing gets struck down. That’s why people invented the severability clause, because it told courts that the legislature’s intent was to leave the rest of the law in place. Over time, the law morphed to the point that courts no longer automatically strike down whole laws. And the severability clause now is interpreted like this: if the clause is present, then the court must automatically uphold the rest of the law. But if the clause is absent, then the court MAY strike the entire law, IF the court finds that the unconstitutional piece is so vital to the intent of the legislation that the rest of the law could not continue without it -- there is no automatic striking. And we know the Supreme Court has accepted this interpretation of this missing severability clause here, because the arguments outlined above are the court working its way through the legal test of how integral this mandate is to the rest.

● Thought Five: Can’t win by losing. The Democrats are trying to put a brave face on this. They claim that losing would wipe the slate clean for the Democrats and would remove the toxic stain of ObamaCare which cost them the 2010 election. Wrong. Their ObamaCare abuse was so bad it spawned a new political party -- the Tea Party, and it led to an historic thrashing at the polls. Having the Supreme Court declare ObamaCare unconstitutional does NOT wipe away that stain anymore than being convicted of murder makes people forgive you for killing your wife. To the contrary, this will confirm to the public that the Democrats massively abused their power.

James Carville also claims a loss will help because once ObamaCare goes down, “health care costs are gonna escalate unbelievably.” Hardly. ObamaCare does nothing to restrain costs, so why would its death cause costs to rise? To the contrary, with the elimination of the taxes, requirements and restrictions imposed by ObamaCare, one would expect costs to go back down -- or more likely stay flat. Moreover, health rates are generally fixed for the year at the end of the year and won’t go up until after the election, so even if Carville is right, it won’t happen before the election. Nice try, idiot.

● Thought Six: Who are the ideologues? Finally, it’s fascinating that the left can simultaneously call the conservative justices “ideologues” as they admit that they don’t know which way three of the five justices will vote. At the same time, they ignore the fact the liberals made up their mind before they arrived and all spouted lockstep opinions. Who are the real ideologues?

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Justice Actually Can Prevail

The monster that is the Environmental Protection Agency has just received a big slapdown from the United States Supreme Court. The EPA, using its huge resources, entrenched bureaucratic mentality, seemingly endless ability to spend the taxpayers money and determination that it is a law unto itself lost a true David versus Goliath battle. A family which refused to be intimidated by Leviathan won.

I’ve written on this topic twice before, each time with the hope that this brave couple, Mike and Chantell Sackett would be able to fight on until they won their battle to re-establish the very American proposition that your land belongs to you, not to the federal government and a gaggle of environmental fascists. You can review the underlying facts of the case here: Sacketts vs EPA. So this post is actually more celebratory than the previous two.

In a nutshell, the case involves a small parcel of land which the Sacketts had purchased so they could build their dream home in the Priest Lake region of Idaho. After pulling all the proper permits and complying with all environmental regulations imposed by the local, regional and state authorities, the Sacketts began to build. After the Sacketts had graded the land, laid the foundation for the house and erected some of the walls and support structures, the EPA came in, ordered the construction to halt forthwith, and ordered the Sacketts to dismantle what construction had been done and return the land to its natural state as a protected wetland.

The idea that the land was a protected wetland came as a total surprise to the Sacketts and every agency involved except the EPA. The “wetland” amounted to a small portion of the property, not much more than a puddle, which had only come to exist as the result of an unusually wet winter and spring. It hadn’t been there before or during the permit process, and left alone, would dry up on its own eventually. No wetland flora or fauna had yet discovered the puddle. It takes the sharp eye of an EPA bureaucrat to locate such obscure ecological marvels.

This was another example of ecoweenies and federal bureaucrats finding a “problem” to act on in order to make sure that their power intimidates both the objects of the protection orders and anyone else who might dare to think of building on or near the same location. Why is it suddenly a protected wetland? The EPA’s response was “because we say it is.”

What was determined in the Supreme Court decision is that the EPA (and by inference, other federal alphabet agencies) may not prevent injured plaintiffs from challenging the power of the agency early in the proceedings. In order to win by intimidation, the EPA had issued what is called a “compliance order.” Such an order requires that the victims of that order must first comply with all the terms of the order before attaining standing to sue the agency for a reversal of the order. For a family of moderate means, that is a near impossibility.

The Sacketts would have had to pull down all the construction done so far, including re-grading the land to put it back into its “natural state.” Then, and only then, they would have been allowed to challenge the EPA’s determination that their land was a protected wetland. Assuming they won the subsequent suit (no sure thing), they would then be able to start construction all over.

As an additional bullet in the head of the Sackett’s dreams, refusal to obey the compliance order would mean they could spend their limited funds on reversing the construction, then hiring counsel to sue just to get back where they started or pay daily fines of $37,500 until they did comply. The Sacketts chose not to comply, and after unsuccessful appeals, their fines had reached nearly $1 million by the time the case got to the Supreme Court.

The argument in court revolved around the nature of the compliance order, with the issue of the questionable wetlands determination a secondary issue. The EPA contended that a compliance order is only one step in ongoing litigation to make that determination. The Sacketts argued the opposite. And the high court agreed with the Sacketts. Speaking for the unanimous court, Justice Antonin Scalia wrote that the Sacketts had the right to sue to overturn the compliance order rather than obey it at their own expense and litigate further later.

Scalia reviewed the Administrative Procedures Act on which the EPA relied, and found that a compliance order such as the one in this case is so onerous that it comprises a final order, complete with monetary fines. The order requiring the Sacketts to restore the property to its original condition was therefore subject to immediate judicial review, both under the Administrative Procedures Act and the Clean Water Act.

No need for a private citizen to bankrupt himself complying with the order before suing to overturn the agency decision only to get back to where he was in the first place before the arbitrary and crippling order was entered. Scalia added: “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review—even judicial review of the question whether the regulated party is within the EPA’s jurisdiction.”

Justice Samuel Alito also suggested that Congress amend the Clean Water Act, the Administrative Procedures Act, and similar bureaucratic legislation in a way that would clearly and affirmatively define the limitations of compliance orders while at the same time preventing more arbitrary and capricious actions by federal agencies effectively quashing the right of private citizens to seek redress in the courts at the earliest possible time. Said Alito: “The Court’s opinion is better than nothing, but only clarification of the reach of the Clean Water Act can rectify the underlying problem.”

The attorney for the Sacketts argued before the Justices that the EPA (and by inference, any other federal agency) is not above the law, nor does any such agency have the right to prevent private citizens from seeking legal redress against the agency when those citizens reasonably believe they are being treated unfairly. He further argued that private citizens should not be required to suffer crippling sanctions without being able to petition the courts to grant redress and protect private property rights pending further litigation. The Supreme Court unanimously agreed.

Although this was an important and unanimous decision, caution must be advised before determining that this battle won a war. The EPA doesn’t like being told it has limited powers, and under this administration at least, it’s likely that it ain’t over ‘til it’s over. Justice Ruth Bader Ginsburg wrote a concurring opinion which pointed out that the underlying issue of whether the Sackett’s property is or is not a protected wetland is not being determined by this Supreme Court decision.

The decision is limited to the right of a private citizen to challenge a compliance order without first having to comply with it. In other words, big government-friendly Ginsburg wanted the EPA to know that she, Justice Sotomayor and perhaps one other Justice might very well be amenable to accepting their determination that the Sackett’s property is in fact a protected wetland if the case should make its way back to the Supreme Court on that issue alone.

I’ll take my victories where I can find them. This was a major limitation placed on the power of irresponsible poorly-monitored federal agencies to harass, intimidate and threaten private citizens into surrendering to unjust federal authority. In order to win the final battle and ultimately the war, Congress must act to severely restrict the now nearly-unlimited powers of the EPA to declare private property off-limits to the citizens who own it. Now you have another reason to elect a conservative Republican majority to Congress in the upcoming general election, as well as kicking The One out of the White House.
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Through The Legal Looking Glass--The Nine Gray Eminences

Associate Justice Antonin Gregory Scalia: He was born on March 11, 1936 in Trenton, New Jersey. He is an only child. His father was an Italian immigrant and a professor of Romance languages who comes from Sicily. His mother was an American born lady of Italian heritage. When he was five, the family moved to the Elmhurst section of Queens, New York where his father taught at Brooklyn College.

He began his education at PS 13 in Queens, and his parents wanted him to have a parochial education, so he attended high school at Jesuit Xavier High School in Manhattan. Scalia then went on to Georgetown, where he graduated summa cum laude with a bachelor's degree in history in 1957. He also spent a year studying in an exchange program with the University of Fridbourg, Switzerland. From there, it was on to Harvard Law, where he was an editor of the Law Review. He graduated magna cum laude from Harvard Law in 1960, and was honored as a Sheldon Fellow of Harvard University, allowing him to travel in Europe for studies.

Scalia married Maureen McCarthy, who was a Radcliffe graduate. Each was an only child and didn't want their family to be as small. They have had nine children, four girls and five boys. All went on to college and professional careers, except for son Paul David who became a Catholic priest and Matthew who joined the U.S. Army officer corps after graduating from West Point. He is now a major in the 82nd Airborne Division.

Upon return to the United States in 1961, Scalia began his legal career with the civil litigation firm of Jones, Day, Cockley and Reavis in Cleveland, Ohio. In 1967, he took a position as a professor of law at the University of Virginia, where he remained until 1971. He then took a position as general counsel for the Office of Telecommunications Policy under President Nixon. Much of his work set the course of cable television that remains essentially unaltered today. He also helped set policy giving more oversight of the Corporation for Public Broadcasting to branches other than the FCC to stop the rapid growth of a government-funded organization which was completely unregulated by any elected body. He also assisted in giving more power to local CPB boards and reducing the influence of the national organization.

In 1972, he was appointed by President Gerald Ford to the position of Assistant Attorney General for the Office of Legal Counsel. In 1977, in the wake of the election of Jimmy Carter, Scalia re-started his academic career, taking a position as a professor of law at the University of Chicago, and then as visiting professor of law at Georgetown and Stanford law schools. During the summer recesses, he was a law professor at the Tulane Law School summer abroad program. From 1981 to 1983, he served on the American Bar Association's Section of Administrative Law, first as assistant chairman, and then as chairman. At each stage of his judicial career, the ABA ranked him "highly qualified."

President Ronald Reagan took notice of him early in his administration, and in July of 1982 nominated Scalis as a Judge of the U. S. Court of Appeals for the District of Columbia Circuit. His decisions were so well-reasoned that when Reagan nominated Scalia in 1986 to replace Supreme Court Justice William Rehnquist (whom Reagan was naming as Chief Justice) he received support even from famous liberals such as Governor Mario Cuomo of New York. He was confirmed by the Senate on a 98 to 0 vote (two Senators absent). Yes, you did read that right. We'll never see that kind of vote again.

Scalia is a "formalist" on the Supreme Court. That is a variation of the broader term of strict constructionist, and is also occasionally called "textualist." Scalia describes a "bright line" of rules over abstract balancing tests, which leads him to conclude that the Constitution is a bedrock document, not an ever-evolving "living" document. He looks first and foremost to the actual wording of the Constitution, and only secondarily at the tradition and history of law when the wording of the Constitution is unclear or doesn't specifically address the issue at bar. When one opponent at a debate at Yale said that if the Constitution wasn't a living document, then it was a dead document, Scalia shot back with "no, it's an enduring Constitution."

He diverges slightly from the other conservative Justices on the issue of interpreting statutory language utilizing the "legislative history" approach. He considers legislative history to be far too malleable and essentially a fraud. He goes so far as to say that judges should never even consider legislative history, as distinguished from legislative intent. If the intent is not spelled out in the statute, then it must be viewed strictly by the words of the statute as they relate to the Constitution. This puts him frequently in direct conflict with Justice Breyer, who loves to go into extensive detail about the legislative history of a statute being questioned before the Court.

His "bright line" approach means that he gives considerable deference to the acts of the legislature over judicial hijacking by the use of abstract balancing tests. On this subject, he wrote a treatise, famous to lawyers and law students, entitled The Rule of Law as a Law of Rules. Thus, he believes that moderation may be a great thing for legislatures and executives, but it has no place in the judicial arena. He asked: "What is a 'moderate' interpretation of the Constitution--halfway between what it says and what you want it to say?" He is widely considered a conservative justice, but his deep belief in strict interpretation has put him occasionally at odds with political conservatives, along with his colleague Justice Thomas.

It has also been argued that Scalia's jurisprudence is Hamiltonian in nature. That is to say, he does not see the federal government as inherently evil, and is not averse to that government exercising its constitutional functions. When he slaps down the government in an opinion, he does so on the basis that the federal power has not been used wisely. And for that reason, he occasionally finds himself at odds with his fellow conservatives on the issue of stare decisis. He is completely willing to overturn a precedent which has no constitutional authority, but he has voted to uphold certain exercises of power that date back to the Roosevelt New Deal on the basis of stare decisis. This is because he is not inherently opposed to new legislative exercises of government power like some of his fellow conservatives. His preference for rules over abstract interpretation leads him to use stare decisis as a rule to support decisions he doesn't like, but in which he can't find constitutional flaws in the earlier decision's reasoning. When charged with inconsistency on stare decisis versus originalism, he responds that stare decisis is a pragmatic exception to, not a part of, originalism. In his view, better a bad rule than no rule at all.

On separation of powers, Scalia is a near-absolutist. The best example of this was his dissent in a case in 1989 which upheld the federal sentencing guidelines. His problem with the guidelines is that the guidelines were handed to the Court for approval by the U. S. Sentencing Commission, a non-judicial authority set up by the executive branch. He saw that as an unconstitutional mixing of power between two separate branches of government. But this also means that when the legislature sticks to legislating and the executive sticks to administrating, he will support their separate authority. He therefore strongly opposes Congressional interference with the President's charge "to take care that the Laws be faithfully executed."

His strict constructionist views make him quite predictable on the issue of rights granted by the Constitution. He will never be convinced that the Constitution ever intended there to be a right of privacy which has wrought so much misery and so much conflict. He abhors abortion, but he sees no constitutional authority for the federal government to act on the issue, either affirmatively or prohibitively. He is not a proponent of the incorporation doctrine imposing the federal rules contained in the 14th Amendment to the states. Thus, he sees no authority for the federal courts to get involved in legal issues such as assisted suicide, sodomy, or punitive damages in state courts, let alone address them as issues for Supreme Court review as matters addressed by the federal Constitution. He also opposes federal intervention in death penalty matters where the state rules differ from the federal rules. For instance, he sees no problem with states imposing their own rules on executing minors or defendants with mental deficiency.

He is a strong proponent of procedural due process, which he sees as the only due process meant by the Founders. This fits with his idea of rules as being the foundation of good and consistent law. It also caused him to surprise conservatives (though it shouldn't have) when he voted in Hamdan v. Rumsfeld that detention of a U.S. citizen as an enemy combatant without being charged is a violation of due process. He doesn't oppose the idea of the detention, but believes instead that habeas corpus should be available to every American citizen until Congress legislates an exception, which it has never done.

On the bench, Scalia varies rather rarely from his basic views, but has both a collegial temperament, and is known for injecting humor into his questioning at oral argument before the Court. His nickname is "Nino," and the justices are said to look forward to brief memos from him that have been tagged "Ninograms." Strange as it may seem, he is closer to the very liberal Justice Ruth Bader Ginsburg personally than with any of the other justices. Yet he almost never votes with her, and his closest ideological ally on the Court is Justice Thomas. Where he diverges from Thomas, which is not often, it is over the very small difference in "strict construction" that forms their basic respective views.

When the exact words of the Constitution are not clear, or don't directly address the issue before the Court, Thomas looks to natural law and the works of the Founding Fathers including the Declaration of Independence and the Federalist Papers. Roberts and Alito look to "original intent" as interpreted by the times contemporary with the Founding Documents, a broader standard. The liberal members of the Court look to "evolving standards" (in other words, the "living Constitution"). Scalia specifically looks to the "original words." If they are not clear, he will search contemporary dictionaries and legal treatises from the time to see what the words actually meant at the time the Constitution was written. This formed his firm philosophy that due process means only procedural due process, and that substantive due process was a judicial fiat conducted by the Warren Court liberals to change the entire basis of due process from what the Founders wrote.

Scalia joined with Justice Souter in his strong opinion of televising Supreme Court sessions. He praised Souter for saying "the day you see a camera come into our courtroom, it's going to roll over my dead body." The only way he would consider yielding would be anathema to "news" services. He would agree to television and audio in the Supreme Court during oral argument only if a rule were imposed that required that the whole session, start to finish, be broadcast unedited and uncommented on until the complete session had been broadcast, gavel to gavel. He has said that his objection to anything less than gavel to gavel coverage relates to the likelihood of sensationalism, excerptation, out-of-context quotes, and the fostering of an inaccurate picture of the operations of the Supreme Court.

Unlike Ginbsurg, whom he considers his intellectual equal and his judicial opponent, it is unlikely that Scalia will form a friendship with new Justice Sotomayor. He has been highly critical of her appellate court decisions, attacking not just the conclusions, but the highly-flawed reasoning and poor workmanship that went into them. He was particularly critical of her recent Ricci v New Haven discrimination decision, which he considered to have absolutely no constitutional or legal authority whatsoever, and which he considered to have violated every rule of due process possible.
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