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The Wisconsin Supreme Court Crisis – Far More Serious Than Ruling On Walker’s Anti-Collective Bargaining Law

Yesterday, the Wisconsin Supreme Court, in a 4-3 ruling, overturned the lower court decision that had barred implementation of Scott Walker’s anti-collective bargaining law on procedural grounds.

While Walker’s law will now take effect, this is the least of the problems revealed by the high court’s ruling.

After all, the anti-collective bargaining legislation was going to become law, one way or another. Had the Supreme Court affirmed the lower court ban and struck down the law, Walker would have simply included the legislation in his new budget and pushed it through once again. Only this time, there would not have been the procedural snafu that has left the legislation hanging in limbo as it worked its way through the state court system.

However, the decision of the Wisconsin Supreme Court revealed something far more shocking than the ruling which went against the supporters of collective bargaining. It revealed, by way of written opinion, a now ‘out in the open’ battle between the members of the court wherein the minority opinion bluntly and directly accused the majority of fudging the facts to reach the decision they had already determined they wanted to reach. The minority opinion further alleged that the majority was driven by political motives rather than the desire to deliver a fair and judicious opinion.

In the world of the law, this is beyond huge. This is gargantuan.

Of course, it is no secret that high courts will, from time to time, give us reason to believe that politics might be at work. However, members of such a court use extraordinary care and caution to avoid calling out a fellow justice for doing what is considered the unthinkable.

The notion that a minority opinion would level a charge of judicial cheating against brother and sister members of the court, in an opinion that will now become part of the Wisconsin judicial body of legal authority, is positively remarkable. I’ve read more cases in my life than I could possibly count and never-and I mean never- has anything I’ve seen so much as approached what I read in this case.

And the fact that these charges were leveled in an opinion concurring with the minority written by the Chief Justice of the Court just makes this all the more astounding.

In a fiery dissent, Supreme Court Chief Justice Shirley Abrahamson wrote that justices hastily reached the decision and the majority “set forth their own version of facts without evidence. They should not engage in this disinformation.”

Abrahamson also said a concurring opinion written by Justice David Prosser, a former Republican speaker of the Assembly, was “long on rhetoric and long on story-telling that appears to have a partisan slant.”Via Huffington Post

Astounding. Truly ‘jaw dropping’, mouth gaping, astounding.

When the Chief Justice of the highest court in the state feels moved to accuse those in the majority of recreating the facts to meet a desired decision, this is a court that is inextraordinary crisis.

And if Chief Justice Abrahamson is correct in her assessment, Wisconsin now finds itself in a period where their highest court decisions can no longer be relied upon when assessing the law.

Every state in the nation – with the exception of Louisiana who retains its roots in the French Napoleonic system- bases its law in the concept of stare decisis. This means that when the court makes law through their decisions, other courts will strive to remain consistent with that law by following the judicial precedents set so that people will never find themselves confused as to the likely outcome of their actions.

This is why changes in American law – other than those brought about by legislation- happen very, very slowly. Consistency in the law is one of the fundamental goals of our system.

However, when the Chief Justice of the State’s highest court accuses the majority of highly unethical behavior and political motives when making law, and does so in the writings found in a decision of the court, there is no court in the state – nor citizen seeking to follow the laws of the state – who can give credence and credibility to the high court’s rulings. Every ruling of the Wisconsin Supreme Court, so long as it is composed of its current Justices, will result in precedents that are instantly suspect due to the charges that have been levied by members of the court.

While the State of Wisconsin has a lot on its plate in the recall department, I’m afraid they now have little choice but to consider taking a look at some of their Supreme Court Justices for similar action.

Not because the court handed down a ruling that will make people unhappy – but because the people of Wisconsin now have every reason to believe that their Supreme Court has been corrupted and their opinions subject to invalidation.

Make no mistake. This is not about a judicial philosophy with which I might disagree. Reasonable, learned judges can – and often do – apply the law to a fact situation and come up with different opinions and they do so in the utmost of good faith and their best understanding of the law.

However, the minority opinion issued yesterday in the Wisconsin Supreme Court did not charge mistaken application of law. The opinion charged perversion of the facts and the law to meet a desired result.

If this is true, this is court corruption at its absolute worst and the people of Wisconsin cannot permit this to stand.

 

By: Rick Ungar, The Policy Page, Forbes, June 15, 2011

June 15, 2011 Posted by | Class Warfare, Collective Bargaining, Conservatives, Democracy, Elections, GOP, Gov Scott Walker, Government, Ideologues, Ideology, Politics, Public Employees, Republicans, Right Wing, States, Union Busting, Unions, Voters, Wisconsin, Wisconsin Republicans | , , , , , , , , | Leave a comment

Are There No Standards For Punditry?

Last Sunday, ABC’S “This Week” turned to none other than Donald Rumsfeld, the former Bush administration defense secretary, to get his informed judgment of the mission in Libya. Last month, the journal International Finance featured former Federal Reserve chairman Alan Greenspan commenting on what is “hampering” the economic recovery.

Fox News trumped even that, trotting out retired Marine Col. Oliver North, the former Reagan security staffer who orchestrated the secret war in Nicaragua, to indict President Obama for — you can’t make this stuff up — failing to get a congressional resolution in support of the mission in Libya.

Next we’ll see a cable talk show inviting the former head of BP to tell us what it takes to do offshore drilling safely.

Are there no standards whatsoever for punditry? Do high government or corporate officials suffer no consequence for leading us into calamity? Public officials who have failed spectacularly in office should have the common decency to retire in disgrace. But even if modern-day officials know no shame, why in the world would opinion pages, network talk shows and reputable journals give them a forum to offer their opinions, when they have shown that their advice isn’t worth the air it disturbs?

On ABC, Rumsfeld criticized Obama for “confusion” in the Libyan mission, noting that the coalition “is the smallest in modern history.”

As Bush’s defense secretary, Rumsfeld played a lead role in perhaps the worst foreign policy calamity since the British burned down the White House in the War of 1812. He helped cook the books that justified the war of choice in Iraq, costing thousands of Americans their lives and limbs and the government a projected $3 trillion. His war squandered the global goodwill in the wake of Sept. 11, 2001, left millions of Iraqis dead or displaced, and strengthened our adversaries in Iraq and the terrorists of al-Qaeda.

Rumsfeld personally approved the torture techniques that despoiled the nation’s reputation when they were revealed at Abu Ghraib prison. He is now hawking his unrepentant and disingenuous memoir, which concludes that the Bush administration “got it right” on the big things in Iraq and elsewhere. Why would any rational news show invite his opinion on anything except maybe how to live with yourself after screwing up big-time?

Greenspan, the ex-Maestro Chairman of the Federal Reserve, argues that “the current government activism is hampering what should be a broad-based, robust economic recovery, driven in significant part by the positive wealth effect of a buoyant U.S. and global stock market.”

But Greenspan hasn’t got a clue. His ruinous policies at the Federal Reserve helped drive the economy into the worst downturn since the Great Depression. He cheered on the housing bubble while denying its existence; touted the benefits of subprime mortgages; turned a blind eye to reports of pervasive fraud and abuse in mortgage markets; and opposed the regulation of derivatives that, he claimed, were making the system more stable.

Greenspan admitted he was “shocked” that his worldview had a “flaw.” An apology, penance, self-reflection and even a memoir describing what he did wrong are in order. Surely we can be spared Mr Greenspan’s opinion of what impedes recovery from the Great Recession that his own blind market fundamentalism did so much to produce.

And do we really need Oliver North’s views on the Constitution and the law? “[I]t’s unparalleled in my entire experience in the military going all the way back to the 1960s,” North said. “Every president has gone to the Congress to get a resolution to support whatever it is he wanted to do.”

This from the White House operative who ran a secret war not only without congressional authorization, but also despite a congressional prohibition — a folly that ended in his indictment and nearly in the impeachment of his president.

There is a striking double standard operating in America. We hear much about enforcing “accountability” from the powers that be. Teachers, students and schools are judged in high-stakes tests. Minority students particularly are subjected to “no excuses” school punishments. Punitive “three strikes and you’re out” prison sentencing disproportionately snares those caught for drug possession or other nonviolent offenses.

At the top of society, bankers, CEOs and hedge funders enjoy increased license, prestige and lavish rewards. Yet when their excesses, lawlessness, ideological blindness or simple incompetence result in calamity, there seems to be no consequence. When Charles Ferguson received an Oscar for his riveting documentary “Inside Job,” he reminded the audience that “not a single financial executive has gone to jail, and that’s wrong.” Wall Street bankers haven’t been prosecuted.

Rumsfeld and the neo-cons still enjoy plush chairs in think tanks as well as high visibility and high speaking fees. Greenspan is allowed to pose as the Maestro, even after his reputation has been completely shredded.

In Japan, high officials who failed so spectacularly would be contemplating seppuku. In Britain, they’d resign, repair to drink and end up in the House of Lords. In America, they become pundits and are offered a stage to argue the same ideas that earlier brought the nation to near-ruin, rewriting history to fit their theory.

As Talleyrand said of the restored French monarchy under Louis XVIII, they have “learned nothing and forgotten nothing.” It is a pity that these discredited pundits are offered a stage to project their inanity on the rest of us.

By: Katrina vanden Heuvel, Opinion Writer, The Washington Post, March 29, 2011

March 31, 2011 Posted by | Banks, Constitution, Economic Recovery, Journalist, Journalists, Pundits | , , , , , , , , , , | Leave a comment

The Fight Over The Individual Mandate Is Not About Liberty

Whatever the legal argument about the individual mandate is about, it’s not, as some of its detractors would have it, a question of liberty. Charles Fried, Ronald Reagan’s former solicitor general, put this well at Wednesday’s Senate Judiciary Committee hearing.

“As I recall,” he said, “the great debate was between this device and the government option. And the government option was described as being akin to socialism, and there was a point to that. But what’s striking is that nobody in the world could’ve argued that the government option or single-payer could’ve been unconstitutional. It could’ve been deplorable. It could’ve been regrettable. It could’ve been Eastern rather than Western European. But it would’ve been constitutional.”

I’d disagree slightly with Fried’s characterization of the policy debate — the individual mandate and the public option do very different things, and a bill with a public option would still have had an individual mandate — but on the law, even the panel’s anti-mandate witnesses agreed with his characterization of the single payer’s legality. So, too, does Daniel Foster, a conservative at the National Review, who wrote, “All conservatives, I’d imagine, think single-payer is unwise, but I’m sure plenty of them think it’s also constitutional (I’m probably one of them, as well).”

There is little doubt that the individual mandate, which preserves a private insurance market and the right to opt out of purchasing coverage, accords more closely with most conservative definitions of liberty than a single-payer system, which wipes out private insurers and coerces every American to pay for the government’s coverage. That doesn’t make it more constitutional, of course. But it does suggest that the dividing point isn’t liberty.

When it comes to the legislation itself, the key question actually comes down to semantics. It’s broadly agreed that tax breaks are constitutional. The individual mandate could’ve been called the “personal responsibility tax.” If you can show the IRS proof of insurance coverage, you then get a “personal responsibility tax credit” for exactly the same amount. This implies that what makes the mandate unconstitutional in the eyes of some conservatives is its wording: It’s called a “penalty” rather than a “tax.” As Judge Henry Hudson put it in his ruling, “In the final version of the [Affordable Care Act] enacted by the Senate on December 24th, 2009, the term ‘penalty’ was substituted for the term ‘tax’ in Section 1501(b)(1). A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress.” And it was: Taxes are more politically toxic than penalties, or so the authors of the bill thought. But they’re not more damaging to liberty than taxes.

Despite the overheated rhetoric that’s been tossed around in this debate, I don’t believe our forefathers risked their lives to make sure the word “penalty” was eschewed in favor of the word “tax.” This is not a country built upon semantics. And I don’t think semantics underly the principle conservatives are fighting for here, either. After all, before Barack Obama adopted the individual mandate — and I mean mere months before — Sen. Chuck Grassley (R-Iowa) said there was “bipartisan consensus” around the need for an individual mandate. Sen. Olympia Snowe (R-Maine) voted for the individual mandate in the Senate Finance Committee. Sen. Bob Bennett (R-Utah) had his name on a bill that included an individual mandate. Sen. Bob Dole (Kan.), back when he led the Senate’s Republicans, co-sponsored a bill that included an individual mandate. None of these legislators takes the Constitution lightly. They didn’t see the individual mandate as a threat to liberty, and they weren’t constantly emphasizing that it was a tax rather than a penalty.

The principle conservatives are fighting for is that they don’t like the Affordable Care Act. And having failed to win that fight in Congress, they’ve moved it to the courts in the hopes that their allies on the bench will accomplish what their members in the Senate couldn’t. That’s fair enough, of course. But they didn’t see the individual mandate as a question of liberty or constitutionality until Democrats passed it into law in a bill Republicans opposed, and they have no interest in changing its name to the “personal responsibility tax,” nor would they be mollified if it was called the “personal responsibility tax.” The hope here is that they’ll get the bill overturned on a technicality. And perhaps they will. But no one should be confused by what’s going on.

By: Ezra Klein, The Washington Post, Posted February 2, 2011

February 8, 2011 Posted by | Affordable Care Act, Individual Mandate | , , , , , , , , , , , , , , | Leave a comment

Gaming the System: At The Supreme Court, Could Legal Precedent Be Less Important Than Popular Opinion?

Articles of faith, as a rule, don’t change every few months. And yet, just nine months ago, it was an article of faith among court watchers that President Obama’s health care reform plan would be upheld at the Supreme Court by a margin of 7-2 or 8-1. Today it is an equally powerful article of faith that everything rests in the hands of Justice Anthony Kennedy in what will surely be a 5-4 decision. What changed between last March and last Monday?

To review: When the first lawsuits were filed challenging the law in March 2010, the conventional wisdom was that they were little more than a Tea Party stunt. “Several constitutional law experts said this week that it is somewhere between unlikely and hard-to-imagine that the Supreme Court would strike down the new healthcare law,” wrote David Savage at the Los Angeles Times. He quoted George Washington University law professor Orin Kerr, a former Kennedy clerk, saying that “there is a less than 1 percent chance that the courts will invalidate the individual mandate.” In Newsweek in September 2010, Stuart Taylor quoted Walter Dellinger, acting solicitor general under President Clinton, predicting an 8-1 vote at the high court, and Tom Goldstein, another prominent court watcher and litigator, calling for a vote of 7-2.

Fast forward to this week. As my colleague David Weigel put it Monday: “The fate of health care reform is where it was yesterday—in the hands of Supreme Court Justice Anthony Kennedy.” The Wall Street Journal agreed, sighing, “As with so many contentious issues in American life, destiny appears to have appointed [Kennedy] the ultimate arbiter of the constitutionality of the linchpin of this new law: the individual mandate.” Now, the composition of the court has not changed since last year. Nor has the meaning of the Commerce Clause, or the decades of precedents interpreting that doctrine, or the words of the Affordable Care Act itself. The only thing that has shifted between the filing of the Obama health care suits and Judge Roger Vinson’s decision finding the entire bill unconstitutional is the odds. We went from “a less than 1 percent chance” of the suits succeeding to their success being determined by a coin flip in Anthony Kennedy’s chambers.

Putting aside the question of whether it matters what court watchers think—or whether the new odds should make any difference—it’s astounding to witness the conventional wisdom shift so dramatically and so rapidly. It took years for court watchers to take challenges to the collective-rights theory of the Second Amendment seriously. It’s taken just weeks for them to come to believe that the fate of the health care law may be decided by a single vote.

To those in the business of making predictions about the Supreme Court justices, one thing that did change was a smoke signal sent up by Justices Clarence Thomas and Antonin Scalia last month in a passionate dissent from the court’s refusal to hear a case from the 9th Circuit Court of Appeals. Alderman v. United States involved the right of the federal government to criminalize a violent felon’s purchase of body armor. And as Andrew Cohen explained it, the two justices weren’t obligated to publish a lengthy dissent, spelling out—complete with references to Hershey’s Kisses (the new broccoli?)—their view that the Commerce Clause does not allow the federal government to make such a regulation. Their small treatise on the limits of the Commerce Clause’s power, Cohen wrote, “confirms to the world that no more than seven votes on the Supreme Court are still in play over the constitutionality of the federal health care measure.”

Court watchers have long argued that Scalia cannot possibly square his vote (indeed his own words) in the 2005 case of Gonzales v. Raich with a vote to strike down health care reform. Once they read the Thomas/Scalia dissent in Alderman, they had to swallow hard. In Raich, Scalia agreed that Congress could regulate marijuana that was neither purchased nor sold in any market but grown for medicinal reasons at home. “The authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce,” Scalia wrote. “Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.” He added that “Congress may regulate even noneconomic local activity if that regulation is a necessary part of a more general regulation of interstate commerce.”

These words matter a lot to supporters of health care reform. But it’s no longer clear how much they matter to Justice Scalia.

Simon Lazarus has a thoughtful post about all the ways in which the court’s more conservative justices—not just Scalia but also Kennedy and Chief Justice Roberts—”will have to twist their prior decisions and statements into pretzels in order to rule the individual mandate or other ACA provisions unconstitutional.” Reading Raich against the Alderman dissent, I am not sure all the justices are terribly bothered at the prospect of performing such gymnastics. Supreme Court reporters like to believe that the justices are invariably hemmed in and pinned down by their prior decisions, and in a perfect world they might be. But if we learned anything at all from Bush v. Gore, it’s that in landmark cases with huge symbolic stakes, justices on both sides of the aisle can get all kinds of creative.

If that is the case, then in the coming months we should pay less attention to the words of Raich and more to the political scientists and judicial behavior theorists who have a lot to say about how justices decide cases. What really changed between last March and this week is that in making predictions about what happens to health care reform, we have almost entirely stopped talking about the law or the Constitution and begun to think solely in terms of strategic judicial behavior.

Court watchers on both sides of the debate seem to agree that Vinson’s opinion was rooted more in his convictions about the need to restrain federal overreaching than in the court’s modern Commerce Clause precedents. The question now seems to be less about whether the justices can find a way to strike down the law if they so choose—they can—than whether they have the political stomach to do it.

I am not an expert on judicial stomachs. But it seems to me that once you start thinking strategically about how health care reform will fare at the Supreme Court, pretty soon you arrive at some serious questions about the continued legitimacy of the court, judicial responses to public sentiment, and other matters that have far more to do with social psychology than Wickard v. Filburn.

Everyone would like to believe that the kind of constitutional issues presented in these health care suits are clear and specific. But they are precisely the sort of wide-open normative inquiries that may tempt even great and fair jurists to have a little extra-textual fun. “American constitutional lawyers, whether practitioners, academics or judges, seem to feel relatively few genuine constraints in the kinds of arguments they are willing to make or endorse,” professor Sanford Levinson has written. “It is, I am convinced, harder to recognize a frivolous argument in constitutional law than in any other area of legal analysis.”

If the odds of success for the health care challenges have tilted in recent months, it’s not because the suits themselves have somehow gained more merit. It’s because the public mood and the tone of the political discourse have shifted dramatically—emboldening some federal judges willing to support a constitutional idea whose time, in their view, has finally come. Whether this sea change will affect the Supreme Court remains to be seen. At least on paper, the Supreme Court is immune to whatever the odds makers are saying about the law’s chances. If recent weeks have shown us anything, however, it’s that what’s on paper doesn’t matter as much as we think it does in the nation’s courts.

By: Dahlia Lithwick, Slate, February 2, 2011

February 7, 2011 Posted by | Affordable Care Act, Constitution, Health Reform | , , , , , , , , , , | Leave a comment

Judge Vinson’s Tea Party Manifesto

Mark Hall, Fred and Elizabeth Turnage Professor of Law, Wake Forest University School of Law

On first read, the most striking aspect of Judge Vinson’s ruling today is not its remedy — striking the Affordable Care Act in its entirety — but the impression one gets that the opinion was written in part as a Tea Party Manifesto.  At least half of the relevant part of the opinion is devoted to discussing what Hamilton, Madison, Jefferson and other Founding Fathers would have thought about the individual mandate, including the following remarkably telling passage (p. 42):

It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.

As I’ve written elsewhere, the same Founders wrote a Constitution that allowed the federal government to take property from unwilling sellers and passive owners, when needed to construct highways, bridges and canals.  But Judge Vinson dismissed those and other examples with the briefest of parenthetical asides:  “(all of [these] are obviously distinguishable)” (p. 39).    Instead, he twice cites and quotes the lower court opinion in Schechter Poultry (pp. 53, 55), which struck down the National Industrial Recovery Act, at the height of the Great Depression and the pinnacle of Lochner jurisprudence.

Still, it’s fair enough to conclude, absent controlling precedent, that being uninsured might not constitute interstate commerce.   What’s harder to swallow is the judge’s rejection of the Necessary and Proper Clause.  In refusing to sever the individual mandate, he not only concedes the mandate “is indisputably necessary to the Act’s insurance market reforms, which are, in turn, indisputably necessary to . . . what Congress was ultimately seeking to accomplish,” he astonishingly devotes about ten pages (63-74) to hammering home the mandate’s necessity, explaining, for instance, that:

this Act has been analogized to a finely crafted watch . . . . It has approximately 450 separate pieces, but one essential piece (the individual mandate) is defective and must be removed. It cannot function as originally designed. There are simply too many moving parts in the Act and too many provisions dependent (directly and indirectly) on the individual mandate and other health insurance provisions — which, as noted, were the chief engines that drove the entire legislative effort — for me to try and dissect out the proper from the improper

So if the mandate is so clearly necessary, why is it not “proper.”  The answer, as in Virginia’s Judge Hudson’s opinion, is a virtual tautology:  because the Commerce Clause does not permit it.  Here are critical excerpts:

the Clause is not an independent source of federal power (p. 58) . . . Ultimately, the Necessary and Proper Clause vests Congress with the power and authority to exercise means which may not in and of themselves fall within an enumerated power, to accomplish ends that must be within an enumerated power. (p. 60)

In light of [United States v. South-Eastern Underwriters], the “end” of regulating the health care insurance industry (including preventing insurers from excluding or charging higher rates to people with pre-existing conditions) is clearly “legitimate” and “within the scope of the constitution.” But, the means used to serve that end must be “appropriate,” “plainly adapted,” and not “prohibited” or inconsistent “with the letter and spirit of the constitution.” . . . The Necessary and Proper Clause cannot be utilized to “pass laws for the accomplishment of objects” that are not within Congress’ enumerated powers.  (p. 62)

The defendants have asserted again and again that the individual mandate is absolutely “necessary” and “essential” for the Act to operate as it was intended by Congress. I accept that it is.   Nevertheless, the individual mandate falls outside the boundary of Congress’ Commerce Clause authority and cannot be reconciled with a limited government of enumerated powers. By definition, it cannot be “proper.”  (p. 63)

My full rebuttal is here, but in brief: none of this is consistent with Comstock, which allows the federal government to commit mentally ill former prisoners to civil treatment, despite the clear absence of any general federal civil commitment power.  And this is inconsistent with Lopez and with Justice Scalia’s concurrence in Raich, which note that regulation, otherwise forbidden, of local noneconomic activities, can be justified when this is “an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated.”  Thus, we still await a convincing explanation of why rejecting the “necessary and proper” defense is consistent with recent Supreme Court opinions, authored or joined by most of the conservative justices.

By: Professor Mark Hall, Health Reform Watch, January 31, 2011

February 6, 2011 Posted by | Affordable Care Act, Health Reform | , , , , , , , , , , , | Leave a comment

   

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