Dog Brothers Public Forum
Return To Homepage
Welcome, Guest. Please login or register.
August 01, 2014, 05:36:45 PM

Login with username, password and session length
Search:     Advanced search
Welcome to the Dog Brothers Public Forum.
81428 Posts in 2243 Topics by 1046 Members
Latest Member: MikeT
* Home Help Search Login Register
+  Dog Brothers Public Forum
|-+  Politics, Religion, Science, Culture and Humanities
| |-+  Science, Culture, & Humanities
| | |-+  Issues in the American Creed (Constitutional Law and related matters)
« previous next »
Pages: 1 ... 23 24 [25] Print
Author Topic: Issues in the American Creed (Constitutional Law and related matters)  (Read 97222 times)
ccp
Power User
***
Posts: 3980


« Reply #1200 on: April 16, 2014, 08:02:28 PM »

Constitutional right to flash your head lights gains momentum

National Constitution Center
By Scott Bomboy 14 hours ago
       
Should a driver have the legal ability to flash their head lights as an alert to a police presence on the road? That knotty legal question is gaining momentum after a legal decision in Missouri, an Oregon ruling, and a new effort in New Jersey.

New Jersey Assemblyman Ronald S. Dancer introduced a bill in March that would make the use of flashing high-beams at motorists legal under state law.

Proponents of the measure are citing a legal victory for the pro-high beam crowd in a federal court in Missouri from February, which was reaffirmed last week.

U.S. District Judge Henry E. Autrey had issued a preliminary injunction in February prohibiting the town of Ellisville from prosecuting drivers who allegedly flashed their vehicles’ head lights to warn of radar and speed traps. The city didn’t appeal the decision.

Last week, Judge Autrey expanded that decision to a permanent injunction.

The American Civil Liberties Union championed the case of Elli v. Ellisville. Last April, the ACLU of Missouri sued on behalf of Michael Elli, who was pulled over in 2012 by a police officer and issued a citation for flashing lights to warn of radar use ahead. Elli faced a $1,000 fine for flashing the lights.

“Expressive conduct is protected whenever a particular message is present and the likelihood is great that the message would be understood by those who viewed it,” said Tony Rothert, legal director of the ACLU of Missouri in a statement issued about the case. “Even new drivers understand that an oncoming car with flashing headlights means they should either slow down, turn on their headlights, or otherwise use caution.”

The Asbury Park Press reported on the New Jersey story on Tuesday and it interviewed attorneys familiar with the proposal. They seemed to agree on the constitutional point but were skeptical if a New Jersey motorist would mount a constitutional challenge to protest a $54 fine.

But it did bring up a case from the 1990s where a motorist went to court and won a verdict that threw out a fine for illegal headlight flashing. However, that court’s decision wasn’t binding or applicable to other cases.

And there have been other instances where head light flashers have won in court.

Last week, an Oregon man, Chris Hill, fought a $260 ticket for improperly using his head lights while driving a truck full of logs. Hill won his legal fight, and Hill acted as his own attorney in the proceeding.

“The citation was clearly given to punish the Defendant for that expression,” the judge said in the case. “The government certainly can and should enforce the traffic laws for the safety of all drivers on the road. However, the government cannot enforce the traffic laws, or any other laws, to punish drivers for their expressive conduct.”

In May 2012, Ryan Kintner from Lake Mary, Florida, successfully fought a citation for violating a state traffic law by using head lights as a warning signal. The judge said the flashing was protected under the First Amendment.

“I felt an injustice was being done. … I have nothing against officers … keeping speeding down, but when you cross a line and get into free speech, I feel it’s gone too far,” Kintner told the Orlando Sentinel during the lawsuit.

Back in New Jersey, the Newark Star-Ledger’s editorial board has endorsed Dancer’s measure, in opposition to the New Jersey Police Chiefs Association.

“At its core, this is a free speech issue,” the board said. “Police can’t prevent you from stopping at every gas station to sound the alarm about a speed radar, or starting your own blog about the locations of hidden cruisers. Look — it exists already on Twitter. They shouldn’t be able to prevent an altruistic citizen from flicking headlights, either.”

The importance of the free speech issue isn’t likely to go way, as people facing relatively small fines are willing to take their cases to court.

As we profiled last month, a Pennsylvania man spent thousands of dollars in legal costs to protest a $150 fine for evading questions asked to him by a game warden. He won a legal victory over his Fifth Amendment rights, which apparently conflicted with a Pennsylvania deer hunting statute.

Scott Bomboy is the editor in chief of the National Constitution Center.
Logged
G M
Power User
***
Posts: 11852


« Reply #1201 on: April 16, 2014, 09:16:15 PM »

Out in my neck of the woods, people commonly flash headlights to warn of deer in the roadway.
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1202 on: April 19, 2014, 10:10:56 AM »

Guro, I think you will appreciate this:

http://www.washingtonpost.com/opinions/george-will-progressives-are-wrong-about-the-essence-of-the-constitution/2014/04/16/7c05aa00-c4ac-11e3-bcec-b71ee10e9bc3_story.html
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1203 on: April 19, 2014, 02:34:18 PM »

You are right, excellent read!-- Though I would quibble about the point at the end about judicial activism/imperialism-- which properly defined is when judges substitute their personal politics (usually progressive) for the law.
Logged
ccp
Power User
***
Posts: 3980


« Reply #1204 on: April 22, 2014, 09:12:01 AM »

Didn't he vote against OBAMA CARE.  How come THAT is not mentioned.  Only the darn liberal issues are even mentioned:

*****Justice Stevens: Make 6 changes to Constitution

Associated Press
By MARK SHERMAN 10 hours ago

FILE - In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)

In this May 30, 2012, file photo, former U.S. Supreme Court Justice John Paul Stevens speaks at a lecture presented by the Clinton School of Public Service in Little Rock, Ark. In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat. The result is Stevens' new book, his second since retiring from the court at age 90, in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. (AP Photo/Danny Johnston, File)

WASHINGTON (AP) — In the aftermath of the Connecticut school shootings that left 20 first-graders and six educators dead, retired Supreme Court Justice John Paul Stevens began thinking about ways to prevent a repeat.

The result is Stevens' new book — his second since retiring from the court at age 90 — in which he calls for no fewer than six changes to the Constitution, of which two are directly related to guns. Others would abolish the death penalty, make it easier to limit spending on elections and rein in partisan drawing of electoral districts.

His proposed amendments generally would overrule major Supreme Court decisions with which he disagrees, including ones on guns and campaign finance in which he dissented.

The book, "Six Amendments: How and Why We Should Change the Constitution," is being published Tuesday by Little, Brown and Co., two days after Stevens' 94th birthday.

Stevens said in an interview with The Associated Press that the Newtown, Conn., shootings in December 2012 made him think about doing "whatever we could to prevent such a thing from happening again."

He said he was bothered by press reports about gaps in the federal government database for checking the background of prospective gun buyers. Those gaps exist because the Supreme Court ruled in 1997 that states could not be forced to participate in the background check system. Stevens dissented from the court's 5-4 ruling in Printz v. United States.

One amendment would allow Congress to force state participation in gun checks, while a second would change the Second Amendment to permit gun control. Stevens was on the losing end of another 5-4 decision in 2008 in District of Columbia v. Heller, in which the court declared for the first time that Americans have a right to own a gun for self-defense.

He acknowledged that his proposed change would allow Congress to do something unthinkable in today's environment: ban gun ownership altogether.

"I'd think the chance of changing the Second Amendment is pretty remote," Stevens said. "The purpose is to cause further reflection over a period of time because it seems to me with ample time and ample reflection, people in the United States would come to the same conclusion that people in other countries have."

Justices often say that their dissenting opinions are written with the hope that today's dissent might attract a majority on some future court.

But Stevens has gone a step beyond by proposing the constitutional changes. Asked whether the book could in part be seen as "sour grapes," he readily agreed.

"To a certain extent, it's no doubt true, because I do think the court made some serious mistakes, as I did point out in my dissents," he said. "But I've been criticized for making speeches since I retired. Writing the book is not much different from continuing to speak about things I find interesting."

A recent example is the court's decision, again by a 5-4 vote, to strike down limits in federal law on the total contributions wealthy individuals can make to candidates for Congress and president, political parties and political action committees. Stevens said the decision follows from the 2010 ruling in Citizens United that lifted limits on political spending by corporations and labor unions. Again, he was in the dissent in another 5-4 ruling.

Those cases, he said, talk about the importance of public participation in the electoral process. But this month's decision on the overall limits is "not about electing your representative," Stevens said. "It's about financing the election of representatives of other people. It's about the influence of out-of-state voters on the election in your district. It sort of exposes a basic flaw in the recent cases."

Stevens marked his 94th birthday Sunday, still in excellent health, but lately feeling his age. Speaking to AP a few days before his birthday, he said, "It's going to come and pass. I'm not sure it's something to celebrate."*****
« Last Edit: April 22, 2014, 11:25:30 AM by Crafty_Dog » Logged
DougMacG
Power User
***
Posts: 5828


« Reply #1205 on: April 23, 2014, 10:55:01 PM »

http://www.nationalreview.com/article/376340/half-win-racial-discrimination-editors

equal protection under the law violates equal protection under the law

non-discrimination is discrimination
Logged
G M
Power User
***
Posts: 11852


« Reply #1206 on: April 24, 2014, 12:32:42 AM »

http://www.nationalreview.com/article/376340/half-win-racial-discrimination-editors

equal protection under the law violates equal protection under the law

non-discrimination is discrimination

It's not racial discrimination as long as the correct group to be discriminated against is being discriminated against.
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1207 on: April 28, 2014, 08:47:50 AM »

http://thehill.com/blogs/blog-briefing-room/news/204497-tipping-the-scales

From the article:

"... while the first and second branches of the federal government have fallen into quiescence, it’s springtime at the third branch and its justices are delivering decisions on big, controversial issues such as campaign finance and affirmative action. By the end of June, the justices will rule on the constitutionality of Obama- Care’s birth-control mandate."
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1208 on: May 03, 2014, 10:23:28 AM »



http://online.wsj.com/news/articles/SB10001424052702303678404579536072435307790?mod=WSJ_hp_EditorsPicks&mg=reno64-wsj
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1209 on: May 06, 2014, 11:25:25 AM »

http://talkingpointsmemo.com/dc/antonin-scalia-blunder-unprecedented-epa
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1210 on: May 06, 2014, 02:46:12 PM »

Probably written by a clerk.
Logged
DougMacG
Power User
***
Posts: 5828


« Reply #1211 on: May 06, 2014, 04:50:11 PM »


Luckily none of us have ever mis-remembered anything - or posted without fact checking.   wink
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1212 on: May 08, 2014, 12:19:19 PM »

http://schultzstake.blogspot.com/2014/05/the-lessons-of-town-of-greece-v.html

Logged
bigdog
Power User
***
Posts: 2144


« Reply #1213 on: May 19, 2014, 03:41:29 PM »

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/05/19/waiting-for-ruth-bader-ginsburg-to-retire-keep-waiting/

From the article:

The U.S. Supreme Court provides one of the more ironic dynamics in politics: people calling for the retirement of justices with whom they agree. Pressure to retire has been directed at Ruth Bader Ginsburg and Stephen Breyer by some who fear that the 81- and 75-year-old justices will not survive a potential Republican presidency that begins in 2017. Some want Ginsburg and Breyer to retire before the end of Barack Obama’s second term, or possibly even sooner, in case Democrats lose control of the Senate in the midterm election. But the behavior of past justices indicates that this pressure may be for naught.  Justices rarely hasten their retirement.
Logged
DougMacG
Power User
***
Posts: 5828


« Reply #1214 on: May 19, 2014, 04:31:22 PM »

The New Republic article recently suggested it is already to late to confirm a Ginsburg replacement.  http://www.newrepublic.com/article/117677/ruth-bader-ginsburg-retirement-could-dems-confirm-replacement

I think the Wash Post author has it right; I doubt any Justice will hasten retirement unless their are personal considerations that we don't know.

When Democrats had 60 Senators, the talk was that this majority would be permanent and increasing.  Now they wonder how to use their remaining power before it ends - this year.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1215 on: May 21, 2014, 07:19:23 AM »



The Barron Fight
Rand Paul is opposing the judicial nominee for the wrong reasons.
May 20, 2014 7:20 p.m. ET

Senator Rand Paul plans a filibuster Wednesday against judicial nominee David Barron for writing secret memos supporting the legality of using a drone to kill terrorist Anwar al-Awlaki. That's a reason to support Mr. Barron in our view, though there are other reasons to defeat his nomination.

As head of the Justice Department's Office of Legal Counsel, Mr. Barron wrote at least two memos that provided the legal basis for the 2011 killing of Awlaki, who was a U.S. citizen. Mr. Paul first demanded to see the classified memos, which he now has, but he and Democrat Mark Udall still want to filibuster until those memos are released publicly.

It's tempting to hoist Mr. Barron and President Obama on their own spears here. In a 2006 interview on National Public Radio, Mr. Barron roundly denounced the secret memos written by Bush Administration lawyer John Yoo in support of aggressive interrogation of terrorists. He said lawyers like Mr. Yoo would "have to expect that they're going to be raising questions about whether they are authorizing war crimes." Now Mr. Paul is giving him the same business.

But it's a bad business. Using drones in wartime against enemy combatants who have declared war against America, no matter their citizenship, is legal under the Constitution's executive war powers. Congress has reinforced that power by passing the Authorization for Use of Military Force and other national defense acts after 9/11 that expressly sanction the use of deadly force against al Qaeda and "associated forces."

As for releasing the memos, we think the executive has a right to keep them confidential. But Attorney General Eric Holder was only too happy in 2009 to declassify the Yoo memos when he could score political points against his predecessors. Now Mr. Holder favors secrecy, though a news report late Tuesday said he may release a redacted version.

The real problem with Mr. Barron is his liberal judicial philosophy. In 2001 Mr. Barron wrote an article for the Duke Law Journal criticizing the "new federalism" because central authority can make better decisions for localities than the locals can. The revival of federalism is dangerous, he wrote, because it prevents us from "thinking creatively about ways central governments can promote local power."

In 2006 Mr. Barron wrote "What's Wrong With Conservative Constitutionalism" for the Harvard Law and Policy Review, laying out a theory of "progressive constitutionalism" and judicial activism that would make Sonia Sotomayor blush.

He called on liberal jurists to use the courts to achieve progressive political goals. He cited the example of gay civil unions, which he said "have generally held up against political efforts to overturn them," and that "there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference." Ah, the judicial vanguard leading the benighted public.

As Mr. Barron sees it, the courts are a political battleground that requires cunning and long-term strategy. To defeat conservative constitutionalism, he writes, the judicial left must be wary of "becoming overly invested in judicial deference as a progressive constitutional position."

Sounds to us like Mr. Barron ought to run for Congress because as a judge he's going to be one more liberal politician. Mr. Paul is opposing Mr. Barron for the wrong reasons, but it would be a service to the country and the Constitution if Mr. Barron never makes it to the First Circuit Court of Appeals.
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1216 on: May 25, 2014, 11:53:05 AM »

http://www.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?_r=1

From the article:

Unannounced changes have not reversed decisions outright, but they have withdrawn conclusions on significant points of law. They have also retreated from descriptions of common ground with other justices, as Justice Sandra Day O’Connor did in a major gay rights case.
Logged
bigdog
Power User
***
Posts: 2144


« Reply #1217 on: June 08, 2014, 07:01:55 AM »

http://www.montpelier.org/james-and-dolley-madison/james-madison/james-madison-reading-list  cool cool cool cool
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1218 on: June 27, 2014, 12:45:01 PM »

Senate 9, President 0
Obama pitches a shutout at the Supreme Court on recess appointments.
June 26, 2014 7:27 p.m. ET

The Supreme Court handed President Obama his 13th unanimous loss in two years on Thursday, and this one may be the most consequential. All nine Justices voted to overturn Mr. Obama's non-recess recess appointments as an unconstitutional abuse of power.

Over nearly 238 years of American history, the Supreme Court has never had to review the President's authority to temporarily fill vacant executive offices when Congress is adjourned. Mr. Obama's 2012 maneuver to void the Senate's advice and consent role triggered a judicial intercession, and defeats at the High Court are seldom as total as this one.

Two years ago Mr. Obama packed the National Labor Relations Board with three new members and made Richard Cordray the chief of the new Consumer Financial Protection Bureau. Other Presidents have made such appointments and we've long supported that authority—as long as they are made when Congress is genuinely in recess.

But in this case the Senate was conducting pro forma proceedings (gavel in, gavel out, every three days) because neither chamber can adjourn without the other's permission under Article I, Section 5. The House refused to consent to prevent Mr. Obama from making recess appointments, so he simply assumed the power to define on his own when a coequal branch of government is at work.

On this invention, the President could presumably make recess appointments overnight or during a lunch break, but Mr. Obama's provocation was deliberate. "I refuse to take no for an answer," he justified his behavior at a campaign event the day after the appointments. Democrats ran the Senate then and run it now. Mr. Obama merely thought the normal confirmation checks and balances too frustrating and preferred to install his union appointees without a debate.

He should have read the Recess Appointments Clause before Justice Stephen Breyer did it for him. In Noel Canning v. NLRB, a Washington state soda bottler challenged a board decision on grounds that the recess appointments were null and thus the board lacked the three-member quorum to do business. Because the Constitution delegates power to each branch to independently make their own rules, writes Justice Breyer, "the Senate is in session when it says it is."
Enlarge Image

AFP/Getty Images

Justice Breyer surveys the legal theories and evolution over time of recesses and recess appointments since the Federalist Papers. This exception to advice and consent was necessary because Members of the early Congresses were out of town for months at a time, while the executive branch was so small that a few job openings could shut down the government. In the 20th century, recess appointments became more common even as their original purpose disappeared.

Deferring to this historical practice, Justice Breyer arrives at a pragmatic test: The President may fill vacancies when the Senate has not transacted business for 10 days or more, whether within or between Congress's two year-long formal sessions.

The Constitution lacks any such 10-day clause, and it is troubling that Justice Breyer seems to have invented it on his own. But still his invention narrows the recess power. And had Justice Anthony Kennedy flipped and joined the four conservatives, recess appointments would have been diminished even more.

In a concurrence with the judgment only, Justice Antonin Scalia makes a stricter reading of the Constitution's language about "vacancies that may happen during the recess." His interpretation would limit recess appointments to only the break between formal sessions and only for positions that open during that window. Justice Breyer "casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best," he writes.

We admire Justice Scalia's originalism, but the clause is ambiguous; Thomas Jefferson puzzled over its meaning as early as 1802. But Justice Scalia's reasoning shows why Mr. Obama's gambit was so reckless. "Friction between the branches is an inevitable consequence of our constitutional structure," Justice Breyer instructs, and the legislature and executive are supposed to work things out along the way. By violating these norms, Mr. Obama invited the judiciary to mediate and jeopardized the recess power for all future Presidents.

The Framers did not vest the executive with the unilateral appointment authority that Mr. Obama thinks he is entitled to. They wanted to diffuse power across the federal government to protect individual liberty. Wilfully bypassing advice and consent also subverts political accountability, which a former constitutional law professor ought to know.

Mr. Obama has thus strengthened the Senate, now armed with a judicial guide to preventing recess appointments: Presidents must take no for an answer. The ruling also opens to challenge some 436 decisions that the NRLB issued while the imposter members were seated.

But the true import of Noel Canning is that even liberal Justices are alarmed that Mr. Obama's executive law-making is visiting real damage on the Constitution. This will not be the last legal torpedo aimed at the hull of his increasingly willful Presidency.
Logged
DougMacG
Power User
***
Posts: 5828


« Reply #1219 on: June 30, 2014, 05:11:15 PM »

Supreme Court sides with employers over birth control mandate
http://www.washingtonpost.com/blogs/wonkblog/wp/2014/06/30/supreme-court-sides-with-employers-over-birth-control-mandate/

The 5-4 ruling, in one of its most contentious cases of the year, recognizes for the first time the religious rights of (closely held) corporations.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1220 on: June 30, 2014, 07:24:02 PM »

If I am not mistaken, the actual question presented was an ACA regulation vs. the Religious Freedom law.
Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1221 on: July 01, 2014, 02:03:07 PM »

Technically it is not a C'l law case, but because so many people think it is, I post this WSJ piece here:

For-profit corporations, at least if they are "closely held," can raise conscientious objections to government policies under the Religious Freedom Restoration Act of 1993. So the Supreme Court held today, by a vote of 5-2, in the much-anticipated case now styled Burwell v. Hobby Lobby.

The vote in Hobby Lobby's favor was actually 5-4, along familiar lines, but as we shall explain, two dissenting justices declined to address the question whether RFRA's protections can apply to for-profit companies. The majority, in a decision by Justice Samuel Alito held that Hobby Lobby and two other companies need not comply with the ObamaCare birth-control mandate, to which their owners object on religious grounds.

The plaintiffs in these cases did not claim their First Amendment rights had been violated; such a claim, as we noted in March, would almost certainly have been precluded by the 1990 case of Employment Division v. Smith. But Congress responded to that case by enacting RFRA, which mandates the courts apply "strict scrutiny" to government policies as enforced against litigants who object on religious grounds.

In order to meet strict scrutiny, the government must show both that the policy is justified by a "compelling" interest and that it is the "least restrictive means" of furthering that interest. At least five justices seemed to agree that the interest in assuring cost-free access to the abortifacient contraceptives in question is "compelling": the four dissenters and Justice Anthony Kennedy, who in a concurring opinion wrote: "It is important to confirm that a premise of the Court's opinion is its assumption that the HHS regulation at issue here furthers a legitimate and compelling interest in the health of female employees."

That's true, but the premise was stipulated--"we assume," wrote Justice Alito--not decided. For the plaintiffs to prevail, it would be sufficient for the government to fail either test, and as Justice Alito argues, it clearly failed the least-restrictive-means test:

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty.

Some religious nonprofits have argued that the HHS accommodation is too restrictive and violates their First Amendment rights; this case does not address that question--or, indeed, whether "an approach of this type complies with RFRA," in Alito's words. The majority cite another less-restrictive alternative: a government program providing contraceptives directly.

Justice Ruth Bader Ginsburg filed a hyperbolic dissent (citation omitted):

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a "less restrictive alternative."

As Kennedy gently observes in response, "the Court's opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Ginsburg suggests the decision would open up the possibility of religious exemptions from statutes prohibiting race discrimination, a claim Alito and the majority flatly reject: "The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal."

Ginsburg's claim that "the court decides" religious opt-outs should be available when a "less restrictive alternative" is available is misleading. Here the court did not, as it frequently does by necessity, apply a standard of its own invention in interpreting broadly written constitutional language. The "less restrictive alternative" language is in the RFRA statute; it was Congress, not the court, that made that decision.

The dissent's response is to argue that no less restrictive means is in fact available, because the court left for another day the question of whether the opt-out HHS has made available to nonprofits is RFRA-compliant, and because Congress has not in fact enacted a free-contraceptive program that would cover Hobby Lobby's employees. But RFRA's protections would be meaningless if they permitted government to use any means but the least restrictive under current law.

Ginsburg also argues that for-profit corporations have no rights under RFRA, but that portion of her dissent is joined only by Justice Sonia Sotomayor. Justices Stephen Breyer and Elena Kagan, dissenting separately, write: "We need not and do not decide whether either for-profit corporations or their owners may bring claims under the Religious Freedom Restoration Act of 1993." Hence the 5-2 vote noted above.

The majority opinion, meanwhile, is limited in its application to "closely held" corporations. But Justice Alito observes for the majority: "No known understanding of the term 'person' includes some but not all corporations." He's rebutting the argument that nonprofits can be distinguished from for-profits, but the principle would seem to apply equally to a distinction between closely held and publicly traded ones. On the other hand, the more diffuse the ownership, the less likely this type of claim—a conscientious religious objection—is to come up.

The decision, and the left's predictably overwrought response to it, underscore a contradiction in the contemporary liberal worldview. "Corporate power is too big," fumed Sally Kohn on CNN this morning. "The Supreme Court is doing the bidding of big business."

But Hobby Lobby brought this lawsuit in the name of conscience, not profit. And isn't it usually liberals who fault corporations for being insufficiently conscientious?
Logged
DougMacG
Power User
***
Posts: 5828


« Reply #1222 on: July 05, 2014, 05:21:41 PM »

...“The idea,” Rivkin tells me, “is to create the perfect combination of all relevant factors to create the perfectly configured legislative-standing case.”

The first plus-factor criterion is to demonstrate the lack of a private plaintiff. In Foley’s and Rivkin’s characterization, the president’s actions are “benevolent” suspensions of law — that is, they are specially intended to assist particular groups (young immigrants or small businesses, for example). Because assisting certain people was the president’s aim, no individuals have suffered sufficient injury to have standing to sue. “No one can challenge benevolent suspensions in court except Congress, because they constitute an institutional injury to Congress qua Congress,” Foley explains. The offense is not against private citizens; it is against the powers that the Constitution guarantees to Congress as a body.

Along with demonstrating the impossibility of a private plaintiff, the House should explicitly authorize the lawsuit, they say, through either a formal resolution or the use of the Bipartisan Legal Advisory Group (BLAG), a standing group of House members that is authorized by House rules to represent that chamber in the courts. This would count as a plus factor because institutional-standing cases do not require formal authorization from the institution. The House members could therefore file on behalf of the House without getting the body’s formal approval, but such approval would probably help the case.

The House should also show that no political remedy (“self-help”) for the situation is available. This third element is a point of contention among legal theorists on the right. Opponents of the House lawsuit contend that the Constitution provides the House with two obvious remedies, neither of which it has exercised: the power of the purse and the power of impeachment. Foley and Rivkin counter that these are not “proportionate remedies” to the problem at hand. With regard to impeachment, Foley asks: “What do you do when the president’s own party controls one of the chambers of Congress?” Moreover, “impeachment is overkill for this particular transgression,” she says. “All Congress wants is for the president to faithfully execute the law. This does not mean that they think he should be kicked out of office.” The second option, cutting funds, “creates major distortions in political accountability, which is the genesis, the heart, of the notion of the separation of powers.” Congress, says Foley, should not be blamed for the president’s misdeeds — but that is just what will happen if the House has no recourse but to penalize innocent organizations as a means of punishing the president. Political self-help is important, Foley observes, “but only when proportionate and related to the transgression.”

If the House can establish standing by fulfilling these four criteria — the establishment of injury-in-fact, as required by the Constitution, and the three “plus” factors — they will have the opportunity to make their case to the courts that the president has flouted his constitutional mandate. While they believe there are a number of transgressions to choose from, Foley and Rivkin plan to present only the strongest infraction in court. ...

more at link:
http://www.nationalreview.com/article/382021/lawyers-behind-lawsuit-against-obama-ian-tuttle
« Last Edit: July 06, 2014, 12:05:23 AM by Crafty_Dog » Logged
Crafty_Dog
Administrator
Power User
*****
Posts: 30677


« Reply #1223 on: July 30, 2014, 08:07:37 PM »

The Case for Suing the President
Rewriting ObamaCare laws on the fly is a violation of the constitutionally mandated separation of powers.
by David B. Rivkin Jr. and Elizabeth Price Foley
July 30, 2014 7:06 p.m. ET

'So sue me" is President Obama's message to Congress. And on Wednesday the House of Representatives took up his taunt, authorizing a lawsuit to challenge the president's failure to faithfully execute provisions of the Affordable Care Act as passed by Congress. The House lawsuit is no "stunt," as Mr. Obama has characterized it. The lawsuit is necessary to protect the Constitution's separation of powers, a core means of protecting individual liberty. Without a judicial check on unbounded executive power to suspend the law, this president and all who follow him will have a powerful new weapon to destroy political accountability and democracy itself.

Article I of the Constitution vests all legislative power in Congress. Article II imposes a duty on the president to "take care that the laws be faithfully executed." When a law is unambiguous, the president cannot rewrite it to suit his own preferences. "The power of executing the laws," as the Supreme Court emphasized in June in Utility Air Regulatory Group v. EPA, "does not include a power to revise clear statutory terms that turn out not to work in practice." If a law has defects, fixing them is Congress's business.

These barriers between the branches are not formalities—they were designed to prevent the accumulation of excessive power in one branch. As the Supreme Court explained in New York v. United States (1992), the "Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day."

The barriers also reflect the Framers' belief that some powers are better suited for a particular branch of government because of its institutional characteristics.


Congress has the exclusive authority to make law because lawmaking requires pluralism, debate and compromise, the essence of representative government. If Congress cannot achieve consensus, that doesn't mean Congress is "broken." A divided Congress reflects a divided people. Until there is a compromise acceptable to the majority, the status quo is the only correct path. An impasse emphatically does not warrant a president's bypassing Congress with a pen and phone, as Mr. Obama claimed the power to do early this year.

The separation of powers also guarantees political accountability. When Congress makes a law and the president executes it as written, citizens will know whom to reward or punish at the next election.

A president who unilaterally rewrites a bad or unworkable law, however, prevents the American people from knowing whether Congress should be praised or condemned for passing it. Such unconstitutional actions can be used to avert electoral pain for the president and his allies.

If Mr. Obama can get away with this, his successors will be tempted to follow suit. A Republican president, for example, might unilaterally get the Internal Revenue Service to waive collection of the capital-gains tax. Congress will be bypassed, rendering it increasingly irrelevant, and disfranchising the American people.

Over time, the Supreme Court has come to recognize that preserving the constitutional separation of powers between the branches of government at the federal level, and between the states and the federal government, is among the judiciary's highest duties.

In Garcia v. San Antonio Metropolitan Transit Authority(1985), the court was asked whether the wage and hour provisions of federal labor law could be imposed on states as employers. The justices refused to examine the substance of the states' claim, declaring that the so-called vertical separation of powers—federalism—was "more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power." Because members of Congress are elected on a state-by-state basis, the court thought the national political process itself was the more proper way to protect states' rights against federal encroachment. It was a mistake the court would quickly regret.

Seven years later, in New York v. United States (1992), the Supreme Court did an about-face, acknowledging that the political-remedies process alone could not safeguard the separation of powers, and invalidated a federal law that forced states to "take title" to low-levelradioactive waste. The court abandoned the "hands off" position of Garcia because if it did not do so, the federal government could coerce states to do the federal government's bidding—a power that could have severely undermined the federalist structure of the Constitution, and hence, political accountability.

Litigation in federal court is an indispensable way to protect all branches of government against encroachment on their authority. States have successfully sued to stop federal intrusions into their constitutionally reserved powers. State legislators have also successfully sued to protect their institutional authority when state executives nullified their legislative power.

The executive branch is no different. President Obama has repeatedly resorted to litigation to vindicate the executive branch's constitutional prerogatives. His administration has routinely sued states for violating federal laws, in cases such as Arizona v. United States (2012), involving the constitutionality of a state law dealing with illegal immigration.

And the Supreme Court has declared unconstitutional portions of congressional statutes that encroached on the federal judiciary's power. In Northern Pipeline Construction Company v. Marathon Pipe Line Company (1982), the court invalidated a transfer of judicial power to "judges" in bankruptcy cases who were not part of the regular federal judiciary and were exercising powers conferred by Congress, rather than by the Constitution.

Congress is not an institutional orphan. Like the president and the states, it can rightfully expect courts to enforce its institutional authority. Any other result would establish an anomalous loophole preventing Congress, and Congress alone, from vindicating its constitutional prerogatives. Courts would not countenance such a lapse in the constitutional architecture, with the potential to inflict enormous damage to the separation of powers, political accountability and individual liberty.

The problem will be cured once the judiciary declares unconstitutional the president's unilateral suspension of Affordable Care Act provisions and vacates the executive branch measures through which these suspensions were effected.

Mr. Rivkin, a partner at the firm Baker Hostetler LLP, served in the Justice Department and the White House Counsel's Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law.
Logged
ccp
Power User
***
Posts: 3980


« Reply #1224 on: July 31, 2014, 07:55:49 AM »

This makes the legal argument for the case.

I am not sure about the practical or political wisdom of this. 

To me it seems more a ploy to try to appease Conservatives (aka Boehner using this to show case that he IS standing up to the self Chosen one).   Would this not take more than a year or longer.  By then we will have several million more illegals in the US (actually now that I think of it immigration is not even in the law suit - oh my God - what a mea culpa!).

Levin doesn't think it will work.  Not that he is always right and many would argue not politically strategically helpful but he understands these things a ton more than me.

Logged
bigdog
Power User
***
Posts: 2144


« Reply #1225 on: Today at 05:21:18 PM »

From ccp:

"Do you have any thoughts as to the merits legally, politically, strategically, or practically on the GOP lawsuit against Obama?

Thanks in advance."

Yes sir:

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/07/03/looking-to-a-lawsuit-signing-statements-and-the-supreme-court/

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/08/01/chadhas-lessons-for-the-house-lawsuit/
Logged
Pages: 1 ... 23 24 [25] Print 
« previous next »
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.19 | SMF © 2013, Simple Machines Valid XHTML 1.0! Valid CSS!