Relevant and even prescient commentary on news, politics and the economy.

A Scalia Tea Leaf on the Healthcare Law?

by Beverly Mann
from The Annarborist

A Scalia Tea Leaf on the Healthcare Law?

Judicial decisions, like the Constitution itself, are nothing more than “parchment barriers,” 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges’ policy preferences. Today’s opinion falls far short of living up to that obligation—short on the facts, and short on the law.

—Antonin Scalia, yesterday, dissenting in Michigan v. Bryant

The tea-leaf-reading on how two or three of the justices will vote on the constitutionality of the PPACA has become a bit tiresome, I think, but I’ll engage in it here anyway.

As most people who’ve followed the issue closely know, in 2005 the Supreme Court held (in a case called Gonzales v. Raich) that Congress had the authority under the Commerce Clause to criminalize the production and use of marijuana even when the marijuana is home-grown and used only by the grower, and therefore never enters interstate commerce, because marijuana grown for the personal use can have a substantial effect on the marijuana trade in interstate commerce.

Also as people who’ve followed the PPACA-constitutionality tea leaf-reading debate know, Scalia wrote a separate opinion in that case concurring in the majority’s result. The Commerce Clause alone, he said, does not give Congress that authority, but that Clause coupled with the Necessary and Proper Clause—the clause that gives Congress the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof,” including the power to regulate interstate commerce—do.

A fine distinction that only constitutional law nerds think about, but it is the distinction that is at the heart of the debate about the constitutionality of the PPACA.

Michigan v. Bryant is not a Commerce Clause case. It is a Sixth Amendment Confrontation Clause case. The Sixth Amendment gives criminal defendants certain specific rights, including the right to confront (i.e., cross-examine) the prosecution’s witnesses under oath at trial. And seven years ago, in a case called Crawford v. Washington, the Court reversed a 1980 opinion that had carved out a chasm of an exception to that right by allowing the admission of hearsay statements if the statement bears “adequate ‘indicia of reliability.’ ”

Scalia wrote the Crawford opinion. Since then Scalia has been at the forefront of the Court’s expansion of Crawford to kill prosecutors’ use at trial of various types of hearsay evidence, and apparently had been able to run interference internally within the Court to kill attempts by prosecutors to overturn Crawford at least in part. Until yesterday, when he lost that battle to, of all justices, Sonia Sotomayor.

Scalia, in a dissent eloquent both in its logic and its passion, masterfully deconstructs Sotomayor’s opinion. I recommend it to anyone who’s interested in issues of this sort or who wants to see Scalia in a context beyond the sort of public caricature he has, seemingly deliberately, become. That opinion is very understandable to non-lawyers, I think.

But its importance to the issue of the constitutionality of the PPACA is not just the paragraph I quoted from it but that he wrote it in defending a constitutional right dearer to the political left than to the political right. The paragraph is the second-last one. The very last one says:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

—-

Scalia’s dissent is here. Sotomayor’s opinion is at here.

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Supreme court justice conduct and conflict of interests

I sent this Salon article on the Supreme Court justice Clarence Thomas The bigger Clarence Thomas scandal by Ben Adler to Beverly Mann asking her what she thought of the article. The article discusses the possible conflict of interest regarding Judge Thomas’s ruling on Citizen’s United and his failure to disclose his wife’s earnings:

Experts on legal ethics don’t all agree on whether Thomas should have recused himself in Citizens United and whether he will be honor bound to do so for healthcare reform. But they are unanimous in their condemnation of Thomas’ dishonest filings on his disclosure forms. “Since it went on for six years [2003-2007 and 2009] it’s especially troublesome,” says Stephen Gillers, a prominent expert on legal ethics at NYU law school. “It’s impossible to claim it’s an oversight.”

The article makes clear that the rules such as the Code of Judicial Conduct do not apply to Supreme Court Justices, and suggests we take take a look at the matter.

Beberly Mann responds to my query on what she thought of the article:

What a terrific article. Thanks for pointing it out to me.

One thing that jumped out at me was that the expenses for Thomas’s trip to Palm Springs to attend a conference sponsored by the Koch brothers, and which Thomas reported as being paid by the Federalist Society, might have come from Koch Industries instead. I knew that there was a discrepancy between one of Thomas’s versions of events (that he only popped into the conference for a few minutes) and a more recent version (that he attended all four days of the conference. The latter version was given after there were questions raised about the propriety of Thomas’s accepting airfare and four days’ hotel costs from the Federalist Society if he only popped into the conference for a few minutes.

But I didn’t know that there’s some suspicion that it actually was Koch Industries rather than the Federalist Society that paid his expenses. That would be breathtaking, in my opinion, especially if he lied about the source of the money on his disclosure statement.

As for Thomas’s having filed false disclosure statements for at least six years (somewhere, I read that the number of years is greater than six) concerning his wife’s income, a friend of mine has suggested that it violates a particular criminal statute, 18 U.S.C. § 1001, titled “Statements or entries generally. My friend also says, “The DoJ said that the statute was aimed at willful failure to make proper EIGA disclosure.” The EIGA is the Ethics In Government Act of 1978, which is the statute that requires disclosure statements.

This is not my area of expertise, so I can’t (or at least shouldn’t) comment more on this. It is the Department of Justice’s Public Integrity Section’s area of expertise, though, and if the filing of knowingly false disclosure statements does violate that or another criminal statute, then I would hope the DoJ will investigate. I also hope that if it is, the lawyers who work on the matter include Republicans, maybe even a Federalist Society member or two, as well as non-Republicans. This should be entirely apolitical. It really, really bothers me that this justice apparently simply decided to not comply with that law, and that he just presumed that because of his position as a controversial justice he was untouchable because it would cause too much political controversy to actually investigate him under the criminal law (I’m assuming here that this does violate a criminal statute, although, as I said, I don’t really know.)

If the Doj does investigate, it would be done secretly, at least initially.

Another thing mentioned in the article that I didn’t know—but am absolutely ecstatic to hear—is that Grassley had reintroduced a bill to establish an office of inspector general for the federal courts. I know that that was something that was proposed by House and Senate Republican Judiciary Committee members back before the Republicans lost control of both houses in the 2006 election—and it was the single thing on which I agreed with the Republicans rather than the Dems. It was, of course, very controversial. High-profile members of the judiciary, present and retired, complained publicly that this was an assault on the independence of the judiciary.

I absolutely disagree, if it’s set up properly and with meaningful safeguards. To avoid separation-of-powers problems, it would have to be part of the judicial branch, just as the various executive-branch offices of inspector generals, such as the one Justice Department’s Office of Inspector General, are part of the executive branch. But an obviously key part of the setup is that they operative independent of the executive branch hierarchy.

Beverly

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Michelle Malkin Will Get the Vapors When She Sees This

As a direct result of the six-Republican, one Democrat California Supreme Court’s decision last week, people who have shared everything for 21 years now get to marry. Pull quote:

As a Japanese American, I am keenly mindful of the subtle and not so subtle discrimination that the law can impose. During World War II, I grew up imprisoned behind the barbed wire fences of U.S. internment camps. Pearl Harbor had been bombed and Japanese Americans were rounded up and incarcerated simply because we happened to look like the people who bombed Pearl Harbor. Fear and war hysteria swept the nation. A Presidential Executive Order directed the internment of Japanese Americans as a matter of national security. Now, with the passage of time, we look back and see it as a shameful chapter of American history. President Gerald Ford rescinded the Executive Order that imprisoned us. President Ronald Reagan formally apologized for the unjust imprisonment. President George H.W. Bush signed the redress payment checks to the survivors. It was a tragic and dark taint on American history. [Updated to note: Three Republicans, including an alleged totemic icon. The Ancestral Party used to know how to Do the Right Thing.]

With time, I know the opposition to same sex marriage, too, will be seen as an antique and discreditable part of our history. As U.S. Supreme Court Justice Anthony Kennedy remarked on same sex marriage, “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper, in fact, serve only to oppress.”

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Psycological Kevlar


Psychological Kevlar Act of 2007
introduced by Patrick Kennedy was to help PTSD and brain trauma research expand.

It has come to my attention that the DoD is thinking about using propranolol as a prophylactic to help reduce ptsd symptoms during conflict and after. I had found this articlefrom a wife of a soldier who had killed himself, and who had testified in a Dec. 12, 2007 congressional hearing on suicide among veterans that is apparently on the rise. She has a strong and passionate viewpoint, but that is not for the post.

Propranolol (brand name Inde by Wyeth) is used for a number of diagnosis not related to ptsd. In addition it is used in the psychological Anxiety area as a beta blocker among other uses, for example for rape victims ptsd to help defuse the intensity of the experience in order to work in therapy. Its efficacy is still experimental and not encouraging.

Failing to locate such information, I am wondering if readers may have leads. While an econ blog, many here are also veterans. Thanks. Further information is coming if warranted. I have e-mailed relevant experts that I know.

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