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

Adam Liptak, gun legislation, the Supreme Court

More on gun legislation and law:

…the bottom line is that Liptak’s spot-on, and that I think that the Supreme Court will use that Illinois case that Liptak discusses to make clear that the Second Amendment is not absolute. The Illinois statute bars carrying any weapons in public, even unconcealed ones.

I think that, 5-4, they’ll say that that is unconstitutional but that laws banning carrying concealed weapons in public are constitutional. I also think that, now, finally, Congress will pass laws against the sale of semi-automatic weapons and against the sale of ammunition clips of more than 10 bullets, and that once a constitutional challenge to those laws gets to the Supreme Court, the Court will uphold the laws.  

Beverly Mann, lifted from an e-mail to me

Gun plans don’t conflict with Justices 08 ruling by Adam Liptak reasons:

Despite the sweeping language of a 2008 Supreme Court decision that struck down parts of the District of Columbia’s strict gun-control law, the decision appears perfectly consistent with many of the policy options being discussed after the shootings in Newtown, Conn.

Legal experts say the decision in the case, District of Columbia v. Heller, has been of mainly symbolic importance so far. There have been more than 500 challenges to gun laws and gun prosecutions since Heller was decided, and vanishingly few of them have succeeded.

“Of the 12 deadliest mass shootings in American history, six have occurred since 2007” also caught my attention.

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Scotusblog roundup…fyi

Beverly Mann makes Scotusblog roundup again:

Monday’s oral arguments in Kiobel v. Royal Dutch Petroleum continued to generate press yesterday. Coverage of the arguments comes from Jess Bravin of the Wall Street Journal, Garrett Epps at The Atlantic, Alison Frankel at Thomson Reuters, Steven D. Schwinn at Constitutional Law Prof Blog, Trey Childress at PrawfsBlawg, Julia Zebley at JURIST, Beverly Mann at Angry Bear, and Jeremy Leaming at ACSblog, while commentary comes from Bruce Ramsey at the Seattle Times. Kali posted pictures taken at the Court after the Kiobel arguments on this blog.

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Scotusblog’s Wednesday roundup links Angry Bear

Another recognition for Angry Bear contributors comes in the form of Scotusblog Wednesday roundup:

You may have heard of Scotusblog because of the coverage of Supreme Court’s decision on court challenges to parts of Obamacare. Beverly Mann, having begun to write for Angry Bear as an added subject which I believed to be an increasingly important impact on policy decisions, again makes it to recommended links to read.

Wed roundup at Scotusblog.

Jess Bravin of the Wall Street Journal reviews the latest book by Justice Antonin Scalia and Bryan Garner. Coinciding with the book’s release, Justice Scalia recently sat for interviews with CNN (which Beverly Mann discusses at the blog Angry Bear) and NPR’s Nina Totenberg.

(bolding mine)

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Supreme Court faces pressure to reconsider Citizens United

Lifted from an e-mail by Beverly Mann in response to an inquiry of mine on a Washington Post article:

Hi Dan. The key paragraphs in a Washington Post article earlier this week, called Supreme Court faces pressure to reconsider Citizens United ruling say:

The Supreme Court has already blocked the Montana decision, and the justices may simply set their counterparts in Helena straight by summarily reversing the finding. But pressure is being applied — by members of Congress and nearly half the states, not to mention Justices Ruth Bader Ginsburg and Stephen G. Breyer — to at least let Montana make its argument.

The Montana Supreme Court acknowledged a conflict when it voted 5 to 2 to uphold the state law, created by voters in 1912 to combat the power of the so-called Copper Kings who controlled state politics. It said the state’s characteristics, including a dependence on agriculture and mining and low campaign costs, made it “especially vulnerable” to corporate control.

Those urging the court to grant a full hearing of the Montana case take aim at the most important finding of Citizens United. That was the declaration in Justice Anthony M. Kennedy’s majority opinion that “we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.”

“That cannot be so,” the new bipartisan team of Sens. John McCain (R-Ariz.) and Sheldon Whitehouse (D-R.I.) told the court. “Whether independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system; it is a factual question, not a legal syllogism.”

The court under Chief Justice John G. Roberts Jr. has incrementally undermined McCain’s landmark campaign finance act by saying it doesn’t meet First Amendment requirements. McCain has in turn been dismissive of a court — without a single member who has ever run for public office — that he says is hopelessly naive about how campaign finance affects the political process.

The most stunning part of the Citizens United opinion was that declaration of fact was made out-of-the-blue and that most people recognize is plainly false. I wrote about this a couple of times on AB, including last January, shortly after the Montana Supreme Court issued its opinion.

I think that, although the rightwing majority would love to just summarily reverse the Montana Supreme Court on the basis of that declaration of purported fact in Citizens United, they’re under enough pressure now to not do that; the dissents from any such opinion would be devastatingly scathing and would get a lot of attention. I think they’ll agree to hear the case, and will schedule the oral argument for after the election. I think that, when they do decide the case, the wingnut majority probably will say that, whether or not “independent expenditures pose dangers of corruption or apparent corruption depends on the actual workings of the electoral system,” the First Amendment interest in “free speech” outweighs it.

But, who knows? Another possibility is that they’ll say that their opinion in Citizens United stated that it was based on the presumption of transparency about who is actually funding these Super PACs, and on the basis that, supposedly, these Super PACs do operate independently of the candidates’ campaigns, and that unless both of these presumptions actually are true, laws like Montana’s are constitutional.
Beverly

And Beverly added later:

In my opinion, the only newsworthy part is the amicus brief from McCain and Whitehouse, because of MCain’s participation and because these two senators are saying that as a matter of fact the Citizens United opinion’s declaration of fact is erroneous, and that they, not the justices, have the actual facts. That’s the argument made by Montana’s attorney general, but having two senators say outright that in their experience, the Supreme Court’s statement of fact is flatly wrong is a big deal. But I don’t have any more insight into what will happen than what I wrote in the email and what’s in the Washington Post article.  

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Corporate Leveraging of Campaign Contributions Under Citizens United

Last week, Dan posted what had been an email message I sent him in response to a link he’d sent me to an article by Thom Hartmann on Truthout about the Supreme Court’s infamous Citizens United opinion.  The key (consecutive) paragraphs of Hartmann’s piece, which I quoted in my email/post, were:

Most Americans don’t realize that the idea that “corporations are people” and “money is speech” are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.

And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.

The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate “under such Regulations as the Congress shall make.”

I said there are two problems with what Hartmann’s arguments—arguments that are being made by many others as well who are appropriately outraged by Citizens Unitedand earlier corporate-free-speech Supreme Court opinions. 

One problem, I wrote, is that there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense.  I said that Hartmann and the others who have adopted this position, including the drafters of the current proposed constitutional amendment to negate Citizens United by declaring corporations non-persons, clearly intend that this apply only to the corporate-free-speech Supreme-Court-created laws.

I said that the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property, and that eventually that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever.  I noted that state statutes, which provide for the creation of corporations, and federal statutes, which recognize corporations as legal entities, do provide for these things.  And although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person,” in order to make clear that the statute or regulation does apply to corporations.

I then made the point that the problem of corporate personhood is not that the law, either statutory or court-created, treats corporations as legal entities that have legal rights and obligations, but instead that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights.  Constitutional rights, I explained, apply only to persons.  In order to accord corporations First Amendment rights, the Court had to declare them persons—not mere legal entities in a statutory sense (as in say, corporations can own property), but persons—in a constitutional sense.  This, I said, is a really important distinction.

And it is.  A really important distinction. 

The distinction gets complicated, though, I said, when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example.  But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).

In other words, to the extent that the corporation—or union, or nonprofit political organization (the iconic example in legal opinions being the NAACP)—has constitutional, rather than mere statutory, rights, those rights are derivatives of the rights of the organization’s human members. 
The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money is hardly a right that logically derives from those shareholders’ own First Amendment speech rights, I said.  “The exercise of those speech rights cannot reasonably be interpreted as intentionally collective among the shareholders; the specific expenditure is not foreseeable to shareholders, and many shareholders, whose politics differ from that of the CEOs, would be horrified by it if the transparency that Justice Kennedy so vaunted in the opinion actually existed and they knew about the corporation’s political role,” I wrote.

My post was posted prematurely.  I’d intended to edit it before it was posted.  And, as I said in a comment I posted to the post, that comment needs clarification, because it implies inaccurately that corporate management normally lacks, or at least should lack, the legal authority to take actions that are unforeseeable to shareholders.  What I meant is that corporate management—and, regarding the use of corporate funds for political purposes of this sort, this presumably would be the CEO—should not be able to leverage the First Amendment speech rights of unwitting shareholders in so unforeseeable a respect. What Citizens United did was authorize corporate top management to leverage shareholders’ First Amendment speech rights and shareholders’ money for political campaign expenditures.  But unlike Goldman Sachs when lending leverage to Bain Capital, these shareholder political donors are captive ones.

Of course, the Fab Five majority in Citizens United did pretend otherwise.  But then, as I said in another earlier post on AB, declaring clearly-false facts in order to arrive at their chosen result in that case is the very hallmark of that opinion. 

In the comments to my earlier post that this post clarifies, there was some discussion about whether the remedy for an objecting shareholder is to simply sell the corporate stock.  But for that to be an option even just for people who own the stock directly rather than through a pension fund or mutual fund, the corporation would have to divulge to its shareholders its intent to make that expenditure.  Suffice it to say that corporations do not divulge the specifics of these expenditures, even after they’re made, much less beforehand.  And the sale on short notice may cause the shareholder to accept a financial less on the sale, all in order to prevent the derivative use of the individual’s First Amendment speech right never foreseeably conferred in the first place. 

This particular constitutional right, by its nature, should not transfer so artificially and unintentionally.

—-

For readers who didn’t see my earlier post, and who are curious, I said that the other problem with what Hartmann and others are arguing is their claim that the courts have no authority to render decisions pronouncing rules of constitutional law.  I said, accurately, that this claim is profoundly dangerous.  I said it mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are fabricating some new rule of constitutional law.  As they did in Citizens United.

I also said I love Thom Hartmann, but that I think his position here needs some refinement.

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Corporations are not people and Thomas Hartmann

by Beverly Mann

Thomas Hartmann writes via Truthout:

Most Americans don’t realize that the idea that ‘corporations are people’ and ‘money is speech’ are concepts that were never, ever considered or promoted or even passed by any legislature in the history of America. Neither were they ever promoted or signed into law by any president – if anything, the opposite, with presidents from Grover Cleveland in 1887 to Barack Obama in 2010 condemning them.

And Congress and the executive branch are the two of the three branches of government that are elected by the people, and thus the only two to which the founders of this country and the framers of the Constitution gave the right to create laws.

The Supreme Court is so much not supposed to create law, that Article 3, Section 2 of the Constitution even says that it must operate ‘under such Regulations as the Congress shall make.

There are two problems with what Hartmann writes. First of all, there needs to be an explicit distinction made between the idea of “corporate personhood” in law, generally, and “corporate personhood” in a constitutional-rights sense. Hartmann, like so many others who are appropriately outraged by Citizens United and earlier corporate-free-speech Supreme Court opinions, clearly intends his comments to apply only to the corporate-free-speech Supreme-Court-created laws, just as the drafters of the proposed constitutional amendment regarding corporate personhood do.


But the “corporate personhood” fiction actually was created, I believe, simply as a practical way to allow corporations to own property. Later, that fiction enabled corporations to sue and be sued, to be subject to criminal laws and civil regulatory law and to be charged with violations of those laws and to be fined for violations and required by court order to comply with (say) a particular environmental or securities regulation or whatever. State statutes, which provide for the creation of corporations, and federal statutes do provide for these things, and although they don’t use the term “corporate person,” these laws (e.g., tax laws, environmental laws, lawsuit procedural laws) do include corporations in the statute’s “definitions” section, in defining the term “person”, in order to make clear that the statute or regulation does apply to corporations.

So the problem of corporate personhood is that the Supreme Court has pronounced corporations “persons” for purposes of First Amendment speech rights. Constitutional rights apply only to persons, so this pronouncement of personhood for corporations in a constitutional sense, rather than just a statutory sense (as in, say, corporations can own property), was a prerequisite to the accordance of First Amendment free-speech rights to corporations. This is a really important distinction.

The distinction gets complicated when you consider that there are some constitutional rights that most people would think do and should pertain to corporations: the Fourth Amendment’s guarantee against warrantless searches and seizures, and the Fifth and Fourteenth Amendments’ due and property “takings” provisions, for example. But that’s because actual people do own direct monetary shares of corporations, and so corporate property does belong to real people, and because the constitutional protections at issue there—against warrantless searches and seizures of documents, for example—would compromise those rights of real persons (the corporation’s employees or customers, for example).

The First Amendment right to advocate for a particular political candidate or party or political position, using shareholders’ money, though, is hardly a right that logically can be said to derive from those shareholders’ First Amendment speech rights, the exercise of which is cannot reasonably be said to be intentionally collective; the specific expenditure is not foreseeable to shareholders, many of whom would be horrified by it. Of course, the Fab Five majority in Citizens United did pretend otherwise. But then, declaring clearly false facts in order to arrive at their result in that case is the very hallmark of that opinion.

But here’s another problem with what Hartmann and others are arguing: This claim of theirs that the courts have no authority to declare render decisions—rules of law—concerning issues of constitutional law is profoundly dangerous. It mirrors what Clarence Thomas and Antonin Scalia regularly claim, except of course when they themselves are simply fabricating some new rule of constitutional law.

I love Thom Hartmann. But I think his position here needs some refinement.

Beverly


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Dahlia Lithwick looks at the judiciary system

Dahlia Lithwick writes about the masterful attention Republicans have given to the judicial system in  The Washington Monthly:

For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right…Kennedy, who is ranked tenth in that study, will be seventy- six next November.

But it’s not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the country. And the one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost completely undetected by the left

 Beverly Mann responds in an e-mail back to me after I sent her the link:

I love this article. My favorite paragraph is:

Why have the Republicans been so much more effective at dragging the judicial branch rightward than Democrats have been in yanking it back? Focus, mainly. Since the Meese revolution of the mid-1980s, the GOP has been better at constitutional messaging, better at mobilizing the electorate, and better at laying out a judicial vision than liberals, who still seem to believe that unless the Supreme Court overturns Roe v. Wade (or perhaps the Affordable Care Act), judges are not really a voting issue.

It’s dismayed and enraged me for years—at this point, decades—that most of the vocal left (the people who gain media attention) act as if the only legal issue of real importance is abortion rights. Okay, now some of them have added torture and Gitmo as issues important enough to mention, but that’s pretty much it. But actually, it would be hard at this point to even explain how deeply, how profoundly, how thoroughly, these judges and justices have changed the very system of law in this country, largely by simply routinely, categorically denying access to federal court, by erecting ever more unattainable, ridiculous, and complex procedural requirements to have a federal court decide a case “on the merits” rather than on a procedural issue—or by quietly denying meaningful court review if access is granted, by pretending to have granted it but by issuing a formulaic ruling making clear that what happened was that the outcome was never really at issue and that the excuses for it were filled in later.

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The Beginning of the End of Citizens United?

 I sent a link to Beverly to this article which stated Citizen United was not so much about corporate personhood. Here is her response, and in addition in a later e-mail Beverly makes this key point (intro amended for readability):

…that no constitutional amendment is necessary in order to nullify Citizens United, because Citizens United actually was decided on the basis of a purported issue of fact that was unsupported by any evidence and that can be refuted by actual clear evidence–and that that’s really the point that the Montana Supreme Court justices were making.

and actually much more….

by Beverly Mann

The Beginning of the End of Citizens United

The article makes the important point that Citizens United and Bellotti, the 1978 opinion that Citizens United uses as its justification, focus mainly on the listeners’ right to hear political speech rather than on the speaker’s right to speak, and so it is not corporate personhood but instead the money-is-speech Supreme Court tenet that is the operative precept in Citizens United. But then the authors claim that, because no listener was a plaintiff challenging the constitutionality of the statute, the Court had no authority to decide the issue on the basis of the supposed interests of listener members of the public. That’s ridiculous, and they themselves effectively refute it. They say:

For their traditional First Amendment balancing, on one side of the scale, courts have categorized the speech as either a kind that communicates an idea, opinion, demand, information relevant to democratic debate, etcetera, or a kind that better fits the category of being merely an instrumentality of transactional conduct. (The speech can also fall in the middle between these two categories). The more communicative and the less transactional, the more weight the courts have recognized on this side of the scale. On the other side of the scale is weighed the amount of harm done by allowing the speech. Speech that merely facilitates the conduct of transactions, such as fraud, conspiracy, insider trading tips, pimping and so forth may properly be criminalized and regulated without much regard for the fact that the means for carrying out the transactions may be entirely speech. Money in politics falls within the category of transactional speech, and it also causes severe harm to the democratic form of government. It may, therefore, be regulated and criminalized.

One reason why speech that communicates political argument, ideas, opinions, information relevant to democratic debate, is more protected under the First Amendment than commercial or transactional speech is that the public has a stronger interest in hearing, and therefore a stronger right to hear, political argument, ideas, information, etc., than it does transactional speech. A big part of the balancing in First Amendment speech cases concerns the interest of the listener.


Also, their statement that “[m]oney in politics falls within the category of transactional speech” is clearly wrong. It seems to me that money in politics isn’t speech at all. But it’s certainly not transactional speech. Transactional speech is the speech intended to induce the payment of money—speech intended to induce the purchase, or whatever. It’s not the payment of the money.

It’s also wrong to conclude that corporate personhood played no role at all in the outcome of Citizens United. The majority talked about the First Amendment right of corporations, unions, nonprofits, to have their message heard through mass media—and that therefore they themselves (the corporations, unions , nonprofits), like listeners of speech, have a First Amendment right to have their message heard only because they are deemed “persons.” The First Amendment gives rights only to persons or “persons”. So in this case, it was both the supposed rights of the human listeners and, separately, the supposed rights of the speaker “persons” that the Court found that the statute violated. But either one alone would have been enough, in the opinion of the Court’s bare majority, in this case.

Then there’s this paragraph, which makes no sense at all:

First, the Roberts 5 stepped outside the court’s constitutional authority by taking up and deciding cases concerning election integrity. Maintaining the integrity of elections was a political question of such importance to the founding fathers who wrote the Constitution that in Article I, Sections 4 and 5, they specifically consigned to the elected Congress both regulation and judging of the manner of holding elections. The founders rightly understood that Congress would be far more subject to popular pressure to maintain election integrity than would the appointed-for-life members of the court. Taking up a case and overturning a law that provides for election integrity infringes a power specifically assigned to Congress, thereby undermining the separation of powers. This also violates the court’s own well-established precedent of refusing jurisdiction concerning political questions. The court followed this traditional rule defining the boundary between judicial and legislative issues from the 1803 decision in Marbury v. Madison until the Buckley decision in 1976.

Huh? Of course the Court has the constitutional authority to take up and decide cases concerning election integrity. Yes, Article I, Sections 4 and 5, specifically consign to the elected Congress both regulation and judging of the manner of holding elections. Other sections of Article I, and other parts of the Constitution, consign to Congress the writing of other types of statutes. And under Marbury v. Madison, the Court has the authority to decide the constitutionality of those statutes.
They are right that the court improperly “overruled a fully supported legislative finding that private money in elections causes sufficient harm to justify its regulation.” In the Montana case discussed in the article, in which the Montana Supreme Court on Dec. 31 issued an opinion upholding the constitutionality of a longtime Montana statute limiting campaign contributions and (I believe) campaign expenditures supposedly independent of specific candidates’ campaigns, despite Citizens United, there was specific, strong evidence both of actual corruption before the enactment of the legislation, and of a strong public belief that unlimited contributions and independent expenditures by corporate interests (or by very wealthy individuals) undermines the integrity of the legislative process.

The Montana Supreme Court opinion details this. In Citizens United, the majority said they concluded that neither of these existed. But in light of the detailed examples of that type of corruption, and the statement of six of the seven Montana Supreme Court justices that they themselves believe that unlimited contributions and independent expenditures directly corrupts the legislative process, it will be a lot of fun to watch the Supreme Court majority reiterate that they “find” that there is no such corruption and no public perception that that kind of money undermines the integrity of the legislative process.

The Citizens United majority’s purported finding was intended as a finding of fact, not a statement of law—a very big difference, and the reason that, as you know, Dan, I disagree with the legal pundits who have said they expect that the Supreme Court will overrule the Montana Supreme Court.
In Citizens United, the Supreme Court simply decided on its own to address this issue and the constitutionality of the part of the McCain-Feingold law that this supposed finding of fact concerned. There was no evidentiary hearing in the trial court concerning either actual corruption or the public perception of it, related to unlimited campaign contributions and unlimited independent campaign expenditures by corporations. The Court’s majority simply pronounced their finding of fact based upon nothing more than their personal views, their own ideology, as if ideology and the personal opinions of five justices is evidence.

In my opinion, under the ruling in Citizens United, which actually is a fact-based ruling rather than a categorical statement of constitutional law, Congress could re-enact a statute similar to that part of McCain-Feingold, and as the law stands now, under Citizens United, defend its constitutionality in court. When the statute’s constitutionality is challenged, the government, in defending in the lawsuit, could parade huge numbers of people—some of them very high-profile. NY Times columnist, Thomas Friedman, for example, has called the system of campaign contributions legalized bribery authorized by the Supreme Court), some of them just ordinary folks from, say, Montana—to refute the unsupported , out-of-the-blue, findings of fact in Citizens United.

Unless, of course, the Supreme Court, in, say, the Montana case suddenly changes the stated justification for its Citizens United ruling, from a supposedly fact-based one to a categorical ruling of law that the First Amendment bars any such statutory restrictions irrespective of facts, and therefore overtly removes this area of First Amendment law from the usual balancing-of-interests analysis. Most people think that’s what they did in Citizens United. But it’s not. The Montana Supreme Court justices recognized this, and it was the basis for their ruling.

And once the Montana case gets to the Supreme Court, and gets the national publicity it will get if (almost certainly, when) the Supreme Court agrees to hear it, the public will learn this. I think the Court will be treading quite close to losing the confidence of a vast majority of the public if it reiterates its own claimed finding of fact from Citizens United, in the face of the extensive evidence in that case (again, including the view of six of the seven Montana Supreme Court justices) that vast majorities of the public do, as a matter of fact, perceive that unlimited campaign contributions and veneer-thinly-independent electioneering expenditures compromise the integrity of the legislative system. And I think the justices will recognize that.

Which will leave them with the choice between categorically rewriting a significant part of First Amendment law, which they superficially nodded to in Citizens United and circumvented there via their spontaneous finding of fact, or instead once again overtly supersede clear fact with their own Mad Hatter view of it. Sit tight.

Beverly

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Comments on Journalist Chris Hedges’ article “Why I’m Suing Barack Obama”

by Beverly Mann

Comments on Journalist Chris Hedges’ article, “Why I’m Suing Barack Obama”
(reformatted for easier reading)

Dan asked me if I could comment on an article published yesterday on Truthdig, republished on Truthout, by veteran foreign correspondent and current Truthdig columnist Chris Hedges. The article is titled, “Why I’m Suing Barack Obama.” Hedges’ Truthdig bio says he’s reported from combat zones in the far corners of the earth for, among other news organizations, the NY Times, the Christian Science Monitor, and NPR. He won a Pulitzer in 2002 as part of a team of reporters for their reportage of global terrorism.

His article says that during the course of his journalism career he met with a slew of leaders of groups that the U.S. government considered terrorist outfits, and spent time with fighters in military operations of rebel armies such as armed units of the Sandinistas in Nicaragua. His lawsuit, filed last week in federal district court in New York City, challenges the constitutionality of two sections of the National Defense Authorization Act, which Obama signed on Dec. 31.
Hedges explains:

The act authorizes the military in Title X, Subtitle D, entitled “Counter-Terrorism,” for the first time in more than 200 years, to carry out domestic policing. With this bill, which will take effect March 3, the military can indefinitely detain without trial any U.S. citizen deemed to be a terrorist or an accessory to terrorism. And suspects can be shipped by the military to our offshore penal colony in Guantanamo Bay and kept there until “the end of hostilities.” It is a catastrophic blow to civil liberties.


In the article, Hedges excoriates cowardly Democratic members of Congress who supported (or at least voted for) the insertion of those provisions into the Defense Department’s budget bill, and Obama for signing the legislation. He also speculates that the real reason that Republicans proposed those sections, and that some Democrats voted for it and Obama signed it has little to do with threats from al-Qaeda and its likes. The real purpose of the bill, he suspects, given the current crippled state of the fading al Qaeda, and the breathtakingly imprecise definitions of key words in the legislation, and therefore the law’s potential for elastic use, is to thwart internal domestic movements that threaten the corporate state. Like Occupy Wall Street.

Turns out I could, and did, comment on Hedges’ lawsuit and his article. Here’s what I wrote to Dan:

Wow. There’s so much to say about this—the statute, why it became law, this particular lawsuit, and Hedges’ comments in the article—that I almost don’t know where to begin. But here goes: First of all, the part of the statute that all allows U.S. citizens to be arrested and detained (imprisoned) indefinitely at the behest of the president, including arrest here in this county or while in a foreign country on a short visit, is not only clearly unconstitutional but is unconstitutional in a manner that both Antonin Scalia and Anthony Kennedy made clear, in a “war on terror” case several years ago, that they believe is unconstitutional. Eventually the Supreme Court will decide the constitutionality of this statute, and will hold the statute unconstitutional. The question is whether this will be the case in which it does.

There is a “procedural” reason why the lower-level federal courts—the district court (the trial-level court) court in which the lawsuit was filed, and then the circuit court (the several-state regional appellate court)—may dismiss the lawsuit, claiming that in this particular case, the courts have no jurisdiction (legal authority) to consider the consider the constitutionality issue. I place the word “procedural” in quotation marks because in this instance, the jurisdictional question, while clearly a threshold procedural question, actually is also a constitutional question: whether or not Hedges has legal “standing” to ask the courts to decide the issue—that is, whether he is claiming a “particularized” injury from the statute sufficiently concrete to meet the Constitution’s requirement that there be a “case or controversy” at issue before a court has “jurisdiction” (legal authority) to consider the issue on its merits—here, the constitutionality of the statute. The case-or-controversy requirement comes from Art. III, which is the Article that creates the judicial branch and specifies its authority. The case-or-controversy part says:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;–between a State and Citizens of another State;–between Citizens of different States;–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Normally, a party has to already suffered injury before he/she/it can sue, so if you’re challenging the constitutionality of a law, you usually have to, say, already have been arrested for violating that law/required to pay the tax required by the statute/prohibited from doing something that you otherwise would do for violating that law. (This is an issue in the “Obamacare” litigation challenging the constitutionality of the “individual mandate” provision; that part of the ACA hasn’t kicked in yet, and no one has been forced to pay the penalty for failing to buy medical insurance.) But there are exceptions, mainly in First Amendment cases—free speech, free assembly, free exercise of religion—and in certain other types of cases in which you’d be risking serious criminal penalty by violating the statute (challenges to a particular section of the Selective Service Act, for example).

So for Hedges, the question of whether or not he has standing to challenge the constitutionality of the statute depends on whether he wants to do something particular that would place him in danger of being detained under the statute. I haven’t read the complaint he filed in court, so I don’t know whether he’s claiming that he does, or not. As for the article itself, it’s spot-on in its assessment that the time is past for any strategic-defense arguments in support of draconian laws of this sort. Vigilance continues to be (in my opinion) in order, lest there be a successful attack of some sort. But this statute has nothing to do with vigilance. As Hedges points out, the FBI, the CIA, the director of national intelligence, the Pentagon and the attorney general didn’t support it.
“FBI Director Robert Mueller said he feared the bill would actually impede the bureau’s ability to investigate terrorism because it would be harder to win cooperation from suspects held by the military.” This statute is nutty.

And, as the old saw goes, it’s also too cute by half. And then some. Which brings me to Hedges’ speculation that the real reason Congress enacted it, and the reason Obama signed it, is to thwart internal domestic movements that threaten the corporate state. On these, Hedges misses the obvious point and, I think, runs off the rails. A reason that the Republicans inserted that poison pill into the Defense Department spending bill is to thwart any threat to the corporate state, however slight. But only indirectly. They inserted it into the bill because they wanted to try to fabricate a Dems-are-soft-on-terrorism issue for the November elections. And some Dems, their backs against what they thought erroneously was a wall, voted for it. And Obama, ever unwilling to take a stand and actually go to the public with specifics to support it and to refute the Repubs, signed the legislation because it was, well, y’know, just too much trouble, or just too risky, or just too whatever, to point this out.

But here’s a point they missed: Republican pols think it’s still 2002. Or at least 2004. Or maybe even 1980. Or 1968. And the Dems-are-soft-on-national-defense prescription for electoral success, and 21st century incarnation, Dems-are-soft-on-terrorism, are the gusher well they once were. They don’t realize that that well’s finally run dry. The public is paying no more attention to that then it is to the other now-decades-old Republican-playbook standards: culture-wars issues, welfare queens, tax “relief” for the wealthy; environmental deregulation, and—last but not least, liberal judicial activists (as any exist now).

Those wells have dried up, except in Tea Party circles. Republican pols keep trying to dance with the one what brung ‘em. The problem for them is that the dance is over. The problem for us is that, thanks to the comically long lag time before pols, Repub and Dem alike, realize this, we get statutes like this one.

Beverly

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Judge Brett Kavanaugh’s Strange Political Prediction—And Other Recent ACA-Litigation Events

by Beverly Mann

Judge Brett Kavanaugh’s Strange Political Prediction—And Other Recent ACA-Litigation Events

Well, as you all probably know by now, there have been two major developments in the courts within the last two weeks on the litigation challenging the constitutionality of the Patient Protection and Affordable Care Act (the ACA, a.k.a., “Obamacare). On November 8, a three-judge panel of the federal appeals court for Washington, D.C. issued its ruling in a case challenging the constitutionality of the so-called individual mandate requiring everyone who can afford healthcare insurance to purchase it, upon penalty of payment of a regulatory fee. That, of course, is the issue that has gotten almost all of the news media attention, thanks to loud Tea Party/Republican-pol/rightwing-talk-show-personalities cries that the mandate unconstitutionally violates individual liberty and therefore is beyond Congress’s authority under the Constitution’s Commerce Clause.

The Commerce Clause gives Congress the power to regulate interstate commerce and, under Supreme Court precedent, pretty much anything that affects interstate commerce. It is the “enumerated power” under which the ACA was enacted. As opposed to, say, the taxing “enumerated” power.

In several earlier AB posts, including one about the oral argument in late September in the appeal that was decided by last week’s ruling, I said that the right-wing’s conflation of the limits of Congress’s authority under the Commerce Clause and the separate issue of the Constitution’s various limitations on government power to infringe upon individual liberty, including in the Fifth Amendment’s Due Process Clause limiting the federal government’s powers to infringe upon individuals’ rights, is a sophism, as a matter of law and as a matter of logic. I also said that the Due Process argument is fatuous; the federal government clearly has the authority under the taxing power to compel the purchase of medical insurance or retirement savings, and does so for Medicare and Social Security, and a mandate under the Commerce power infringes no more on individual liberty than a mandate under the taxing power.

I made these points originally in an AB post in late June, a few days before Sixth Circuit Court of Appeals Judge Jeffrey Sutton, a highly-regarded conservative Reagan appointee prominent Federalist Society member who early in his career served for a year as a law clerk to Justice Scalia, eloquently deconstructed that conflation in his 2-1 majority opinion upholding the constitutionality of individual mandate. I reiterated the points in an AB post about the Sutton opinion (which I sillily titled “Judge Sutton Channels … Me??”). And I summarized them in a post in early October in which I discussed the oral argument in the appeal that was decided on November 8.

The Sixth Circuit opinion was the first appellate ruling on an ACA case. The dissenter in that opinion is not an appellate judge but instead a trial-level judge sitting on that appellate panel “by designation ” of that court’s chief judge via a statute that allows this, and whose dissenting opinion was breathtakingly lightweight.

In August, an Eleventh Circuit panel consisting of a Clinton appointee to the Court of Appeals who had been appointed as a trial-level judge by Reagan, another Clinton appointee, and a George H. W. Bush appointee, issued a 2-1 opinion ruling the individual-mandate provision unconstitutional but upholding the remainder of the ACA, saying that the remainder was “severable” from the individual-mandate provision—that is, that the remainder of the Act could stand on its own and that therefore the loss of the mandate provision did not dissolve the remainder of the statute. The opinion was written by the Reagan appointee, Joel Dubina and joined by Clinton appointee Frank Hull. Neither judge is considered a star legal analyst, and the opinion didn’t disappoint. It was a rote adoption of the the-individual-mandate-unconstitutionally-infringes-on-liberty-because-it-penalizes-inaction-and-therefore-Congress-exceded-its-Commerce-Clause-authority. The opinion doesn’t explain how a supposed unconstitutional infringement of liberty amounts to a per se exceeding of Congress’s Commerce power, the opinion doesn’t explain. Alchemy? The dissent by Judge Stanley Marcus is scathing. (More about this case below.)

The panel in the Washington, D.C. case, the one decided on November 8, like the panel in the Sixth Circuit case, was comprised of two conservative Republican appointees and a Democratic appointee. Both Republican appointees, Lawrence Silberman and Brett Kavanaugh, the latter a former law clerk for Judge Kennedy, are high-profile stalwart conservatives and both are intellectual leaders of the “movement” right, albeit from slightly different conservative-legal-movement eras. Silberman is a Reagan appointee, Kavanaugh a George W. Bush appointee. In any event, they are not just rightwing but also considered intelligent, if not necessarily by me.

In my post last month about the oral argument in that case, I wrote:

Sutton’s analysis exposes the constitutional challenges to the individual mandate for what they are: a series of ideological clichés masquerading as legal argument.  As I wrote in AB shortly after the Sutton opinion was released, his analysis is so fine, so precise, that ultimately the Supreme Court’s opinion will echo it.  So I was not among those who were surprised that the administration is pushing for a Supreme Court ruling on the constitutionality or the statute before the 2012 election.  But all the judges thus far who have voted to invalidate the individual-mandate provision as unconstitutional are, in my opinion, intellectual lightweights, and so I’d wondered whether the Sutton analysis itself could be persuasively deconstructed by a judge or justice who is not.

The answer appears to be no.  Last week, a panel of yet federal appellate court, this one the one for Washington, D.C., heard arguments in yet another case challenging the constitutionality of the mandate as beyond Congress’s Commerce-regulation authority because it infringes upon the liberty of individuals to remain self-insured, it requires the purchase of a “product” from a private party, and, well, um, the scope of the statute is really sweeping.  I mean, what’s next, asked one of the two stalwart rightwing-intellectual-heavyweight members of the panel?  Congress mandating the purchase of GM cars by the wealthy in order to prevent the collapse of that company during the next economic downturn, upon pain of payment of a penalty for failure to do so?  (I hope so. Then, when David Koch has a heart attack in his Maserati and the ambulance attendants verify through the Secretary of State’s offices in his various home states that there is no GM car registered in his name, the attendants dump his gasping-for-breath body in the road, where he’s run over by a Cadillac SUV

I followed those paragraphs with this one:

A sigh of relief was in order—although I had to wait until I stopped smiling like a Cheshire cat.  That judge, Brett Kavanaugh (a former law clerk to Justice Kennedy, circa 1993), reportedly commented earlier to the plaintiffs’ lawyer that maybe the courts shouldn’t interfere with what could be the beginning of the mass privatization of the social safety net.  More likely, I think, it will prompt, finally, a single-payer healthcare-insurance system—Medicare for all—in order to cut out the spiraling costs of a private, multi-carrier, for-profit system whose premiums reflect, in part the investment losses of those private companies.  But don’t tell Judge Kavanaugh until after that appeal is over.

Um, oops. Actually, it was Silberman, not Kavanaugh, who suggested that if the individual mandate in the ACA is constitutional, then a mandate requiring the purchase of a GM car might be, too. It was, however, Kavanaugh who predicted, mouth watering, that if the ACA’s mandate is upheld, it might usher in a mass privatization of the social safety net.

When the panel decided the case, it was Silberman who wrote the opinion—for himself and the Democratic appointee, liberal Clinton appointee Harry Edwards, upholding the individual mandate and echoing the basics of Judge Sutton’s opinion: that the Commerce Clause gives Congress the authority to regulate that which affects an interstate market, as the healthcare market clearly is; that the decision to not purchase healthcare insurance is not inactivity but instead clearly market activity because (unlike the proverbial decisions whether to purchase broccoli, or a GM vehicle) virtually everyone will need healthcare at some point, and will receive it whether or not the person is insured or can afford to pay the medical bills out-of-pocket; that the infringement-of-individual-liberty objection is not a Commerce Clause issue but instead a Due Process issue; and that the individual-mandate provision does not unconstitutionally infringe upon individual liberty.

Silberman’s opinion adopts Sutton’s reasoning in all respects. Most interesting, I think—partly, I guess, because by now I feel like I have a proprietary interest in it—is his conclusion that:

Appellants’ view that an individual cannot be subject to Commerce Clause regulation absent voluntary, affirmative acts that enter him or her into, or affect, the interstate market expresses a concern for individual liberty that seems more redolent of Due Process Clause arguments. But it has no foundation in the Commerce Clause.

Kavanaugh dissented. But not on “liberty” grounds. And not even on Commerce Clause grounds. Instead, he said a court ruling now is premature, for two reasons., one (he said) compelled by statute, the other (he said) in deference to “the bedrock principle of judicial restraint that courts avoid prematurely or unnecessarily deciding constitutional questions.”

“Unnecessarily” being the interesting part of this.

The statutory reason is his interpretation of a federal court-jurisdiction statute called the Anti-Injunction Act and of the legal nature of the mandate provision. The Anti-Injunction Act removes the “jurisdiction,” i.e., legal authority, of the courts to even consider the challenge to the individual-mandate provision and its penalty for failure to purchase insurance until after the effective date of that provision in 2014 and the penalty is assessed against someone who then sues for reimbursement, contesting the provision’s constitutionality. The issue depends on whether the penalty is a tax, since the Anti-Injunction Act applies only to taxes. In August, a panel of the Fourth Circuit Court of Appeals ruled, 2-1, that the mandate is a tax and that the Act therefore removed the courts’ jurisdiction to consider the constitutionality of the mandate provision until 2015, when the first penalties would be assessed by the I.R.S. Kavanaugh bought the argument; Silberman and Edwards didn’t.

The “unnecessarily” reason has subparts, but the main ones are that Congress may repeal the ACA, or parts of it, before the individual-mandate provision becomes effective, and, more to the point (or at least more to my point), that Congress may instead simply change the wording of the mandate provision slightly so that the penalty is clearly a tax. Which, he says, clearly would be constitutional.

He doesn’t say that it would be clearly within Congress’s taxing power. He says, flatly, that it would be clearly constitutional. He says, in other words, that the infringement on liberty does not itself violate the Constitution—whether the mandate is an exercise of Congress’s power to regulate interstate commerce or instead an exercise of Congress’s power to tax.

That Kavanaugh has an ideological ulterior motive which advertised at oral argument and reiterates with more elaboration in his dissenting opinion— his expectation that if the ACA’s mandate is upheld, it could herald an era of mass privatization of the social safety net, happily marrying tea party types and rightwing interests in having government create a market serving private business interests—does not matter. Nor does it matter that Kavanaugh is delusional—unless, of course, it really is likely that there is, say, a private-food-assistance lobby similar in number to the insurance-industry lobby that, like the insurance-industry lobby did in fighting single-payer healthcare insurance proposals (and even the so-called public option in a version of Obamacare) , will emerge like locusts to have Congress enact a law mandating that everyone who can afford to do so must purchase food stamps each year, redeemable when and if necessary. Or that the AARP will agitate for privatization of Social Security, maybe in order to prevent the government from funding massive otherwise-unfunded wars and massive tax cuts for the wealthy largely by tapping the ostensible Social Security trust fund.

No, what matters is that Kavanaugh said what he said, irrespective of his motive. Kavanaugh got it right. The individual-mandate provision does not violate the Constitution’s limitations on government infringement of individual liberty. And Sutton and Silberman, neither of whom appears to share Kavanaugh’s peculiar delusion and ulterior motive, but also neither of whom voted for Obama or any member of Congress who voted for his “care,” have enunciated so finely why this is so and why, also, the mandate provision is within Congress’s Commerce Clause authority, that a 5-4 Supreme Court ruling to the contrary would be a transparent act of ideology. It’s not, of course, that the majority doesn’t do this, regularly; they do. It’s that this time they would be eating not only Obama and Care, but also Kavanaugh, Sutton and Silberman.

The fat lady hasn’t sung yet on the constitutionality of the individual mandate, but I think it’s over nonetheless. When the Court decides that issue—and despite the out-of-right-field potential inherent in certain sort-of-breathtaking parts of the Court’s order last Monday agreeing to hear the Eleventh Circuit case—I think the Court will decide that issue, eventually, if not in that case.

For the specifics of that order, and a comprehensive discussion of the five parts to it and the possible implications of one of them, see Simon Lazarus and Dahlia Lithwick’s article in Slate, “The Medicaid Ambush: The Supreme Court’s unexpected and astounding reasons for wanting to hear a challenge to Obamacare,” here.

If the Court rules the ACA unconstitutional because the majority thinks the ACA’s expansion-of-Medicaid provision violates the states’, um, constitutional right to the current federal statutory entitlement (Medicaid in its current form) in order to protect the popularity of the states’ legislators who would vote to forego Medicaid in order to avoid the requirements of Obamacare (see the Slate article), then of course the Court will never have to decide the constitutionality of the individual mandate. I don’t think it will buy the states’ hubristic claim; I think the Court simply wants to hear all challenges from all governments that are suing. This is a court with at least a few members who apparently think that any time a state or local government asks it to hear a case, it should hear the case. But it also is a court whose majority, in deciding cases, regularly privileges the states’ interests over the interests of the federal government and of individuals. Their ideology largely rejects the Fourteenth Amendment and the original Constitution’s Supremacy Clause. So, who knows?

As for what caused Silberman’s change of heart about whether the individual mandate unconstitutionally infringes upon the liberty of individuals to remain uninsured, I have two theories. One is that Kavanaugh read my AB post attributing to him Silberman’s oral argument comment equating the mandate with a theoretical mandate to purchase a GM car, and after explaining to Silberman the difference between the two and insisting that Silberman publicly clarify the distinction or make clear that he, not Kavanaugh, drew the analogy, lest a gasping-for-air David Koch be dumped by an ambulance attendant onto the street and run over by a Cadillac Escalade and that Kavanaugh be blamed, he persuaded Silberman to change his mind about the whole analogy. The other is that Silberman himself gave more thought to whether it would be such a bad thing after all for the government to mandate a GM car in every driveway. After all, that new Chevy Cruze is awfully cute and gets pretty good gas mileage.

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