Monday, June 25, 2012

Supreme Court Healthcare Decision This Thursday

[IMPORTANT UPDATE 06/25/2012: The Court's decision in the Arizona immigration case had not been published for more than five hours before the Obama administration announced that it is suspending all cooperation with Arizona law enforcement to determine the status of illegal immigrants. This is lawlessness at the highest level of our country. The question is whether or not we are too polarized to do anything about it. See more below.]

This morning, the U.S. Supreme Court announced a decision in three of the cases pending before it. It summarily reversed (i.e., without hearing arguments or having additional briefs), by a vote of 5-4, the Montana Supreme Court's decision refusing to apply the U.S. Court's previous holding in Citizens United v. Federal Elections Commission. Here is the decision announced today, in its entirety:

A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. §13– 35–227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” 558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. 
The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed. 
It is so ordered. 

The liberal justices (Ginsburg, Breyer, Sotomayor and Kagan) dissented. There was no point in granting certiorari and putting the case down for oral argument, because the majority (the five justices joining the per curiam opinion above) were not going to reconsider their holding in Citizens United.

In another 5-4 ruling, the Supreme Court held that the Eighth Amendment's provision against cruel and unusual punishments precludes sentencing a juvenile (fourteen years old) to life in prison without the possibility of parole. In this case, Justice Kennedy joined the four liberals to make a majority; Justice Kagan authored the opinion. Chief Justice Roberts, and Justices Alito and Thomas each filed dissenting opinions; Justice Scalia joined in all three dissents.

The third decision announced today was in the Arizona immigration law case. Justice Kagan recused herself, since she was in the Solicitor General's office at the time it challenged Arizona's statute which mandated police officers to check the immigration status of persons they stopped, and which made it a misdemeanor for undocumented aliens to fail to register as required by federal law, or to seek or accept work in the State, and also allowed police to arrest any person without a warrant for any offense for which they might be deportable.

The vote was 5-3 (with the Chief Justice joining Justices Kennedy, Breyer, Ginsburg and Soytomayor) to affirm the Ninth Circuit's ruling that all of the latter three provisions of the statute had been pre-empted by the federal statutory scheme. They held that the provision requiring officers to check immigration status upon arrest could possibly be interpreted narrowly in a way so as to survive preemption, but that the way in which it was to be interpreted and applied could not be determined at this preliminary stage. So they reversed the Ninth Circuit's injunction against that part of the statute, and remanded the case for further proceedings (which include more challenges to Arizona's law).

Justice Scalia dissented from the parts of the opinion finding preemption, and said he would vote to uphold the entire law. Justices Thomas agreed with Justice Scalia, but on other grounds. Justice Alito agreed with the other two dissenters, but also agreed with the majority as to making failure to register a state misdemeanor. It is Justice Scalia's dissent, as usual, which states the issue most powerfully:

The United States is an indivisible “Union of sovereign States.”  Hinderlider v.  La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).  Today’s opinion, ap­proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.  I dissent.

Justice Scalia goes on to score point after point against the majority's inisipid endorsement of federalism, while allowing Congress to override the sovereign powers which a State brings to its union with the other States. He points out that an 1837 decision (which the majority ignores) allowed New York to screen all passengers arriving on ships, and nothing was said then about the federal government preempting state sovereignty. He also takes a good whack at the government's ridiculous argument in its brief:
The brief for the Government in this case asserted that “the Executive Branch’s ability to  exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.”  Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting  its re­sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift.... 
Must Arizona’s ability to protect its borders yield to thereality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding?   
But he's just getting started. Next on his target list: the Obama administration's latest pronouncement that it will bypass Congress altogether to defer deportation proceedings against any undocumented aliens who came here before they were 16, who have not committed any serious crime, who have either a high school diploma, or are in school, or served in the armed forces, and who are not over age 30:
The husbanding of scarce enforcement resources can hardly be the justification for this ... The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act [citation omitted]. Perhaps it is, though Arizona may not think so.  But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind....   
A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.  So the issue is a stark one.  Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws? 
Justice Scalia reasonably asks: Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?  Today’s judgment surely fails that test.” His concluding two paragraphs are worth quoting in full, because they show that he is a justice who is not just sitting in an ivory tower:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en­forcement, and will be able to  compete openly with Ari­zona citizens for employment. 
Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State.  I dissent.
Perhaps no case this term has served to point up the differences between the Court's liberal and conservative justices as this one from Arizona -- and to show as well the all-too-decisive role which that divide generates for Justice Kennedy. With Justice Kagan having recused herself, that left only eight justices to rule on the case. Had Chief Justice Roberts not joined the four who were prepared to rule against the Arizona statute  (which Justice Kennedy had already decided to do, since the Chief Justice assigned him to write the majority opinion), the result would have been a 4-4 decision, and the Ninth Circuit's egregious ruling would have been affirmed in its entirety. By joining to make a majority, therefore, Chief Justice Roberts at least managed to preserve Arizona law enforcement's right to check undocumented aliens' status whenever they make a stop. (But even that right, as the Justice Kennedy spells out, must be narrowly construed in order to avoid federal preemption. Some days, you just have to take what you can get.)

[UPDATE 06/25/2012: Those words -- "Some days, you just have to take what you can get" -- were scarcely added to this post when an "unofficial announcement" (meaning no official will go on the record yet) came to the effect that the Obama administration is suspending all cooperation with Arizona law enforcement in regard to illegal immigration. Not only that, but they say that any increased level of inquiries from Arizona will not be dealt with, because they have their "own priorities"! (Those obviously do not include the safety of Arizona citizens.)

This is lawlessness, sheer lawlessness, declared in a fit of pique by President Obama. (He must be behind this; administration officials would not dare to make up such a policy without his approval.) He shows by this, almost more than by anything else he has done to date, his unfitness to serve this country as its president. 

The problem is that impeachment channels are blocked, due to the Democratic majority in the Senate. And a lawsuit to enforce the Constitutional guarantee against invasion and domestic violence (Art. IV, Sec. 4) would not only be a long shot, but it would take too long, as well. Nevertheless, the House should immediately bring articles of impeachment against the President, Attorney General Holder, and Secretary Napolitano, if only to publicize their petty irresponsibility and scofflaw attitude, and hopefully make it impossible for Obama to be reelected.

This does not bode well for the Supreme Court's announcement of its Obamacare decision next Thursday, either. Like it or not—we may soon all be caught up in turbulent forces that will take our country into uncharted territory.] 

In its orders published today, the court granted certiorari in ten new cases. You may read more about these chosen cases at SCOTUSblog, also linked at the right.

The Court also denied review in the Mount Soledad cross case. However, Justice Alito filed an opinion concurring in the denial, and explained that the case was still in a preliminary stage (the Court of Appeals had remanded the case to the district court to fashion a remedy which might allow the cross to remain on its site). Thus, the Supreme Court could still take up the case after there is a final judgment with regard to whether the Memorial Cross can remain on government land, without violating the Establishment Clause. Said Justice Alito:
This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity, see Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. __, __ (2011) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 17), and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance.... 
Nevertheless, as we saw in the two church property cases last week, the Court just does not seem interested in fixing up the mess it has made of the Establishment Clause. Meanwhile, it finds plenty of time to consider the correctness of the EPA's stance on channeling storm water runoff from Forest Service roads in national forests (sigh). When, O Lord, when?

After it was done announcing its orders and decisions today, the Chief Justice stated that the Court would reconvene on Thursday to release the remainder of the decisions for this term. In other words, expect a decision on the Obamacare cases this next Thursday, shortly after ten o'clock a.m.


  1. For some reason it seems like a re-reading of "The Pit and the Pendulum". The blade swings back and forth, reaching for its inevitable objective.

    Surprising that the Libs would go to the trouble to rimand to the 9th some of the Arizona provisions that seemed reasonable but were difficult for them to approve. Do they then finally throw in the towel on re-submission in a year or so?
    What is so funny about the twinky-toeing around on that pount is that here, in Texas, the first thing a police officer does when arriving at a "house call" or a traffic stop is to ask for an Identification. They ask everybody, even green-coloured Negroes with 100% Eskimo and Anglo ancestry.
    Failure to produce a certified identifying document results in detention until identification can be established. If the person gives a social security number that does not match his name, it's off to the all-inclusive, Motel 0.
    A joke could be made, perhaps, that the Roswell UFO crash occurred in New Mexico, because the crew knew that in Texas their InterGalactic Drivers' Licenses are not recognised. New York, yes, but Krypton,no.
    It seems to me that the Libs are looking for cover on an issue that they themselves will probably wind up supporting the Arizona position; especially if there is a bit of tweeking, a few commas, and a bit of prescription for probable cause.
    In Texas, when the cops are there, they say they have PC because the reason the detained person is detained is prob'ly 'cause the police are here.

    Went to Mass yesterday, but at communion the deputy priestette was so short that she could not get the challis up to any point that it would do any good. El Gringo Viejo is too skinny and too tall, even kneeling. El GV finally resorted to self-service, and all was well.
    Please keep up your zeal and industry. The Anglican Curmudgeon is comfort food for the soul.

    El Gringo Viejo

  2. El Gringo Viejo, thank you for that comment. And folks, be sure to check out his latest post on the Arizona situation: "United States of America Secedes from Arizona". No one is more familiar with border and immigration issues than is El Gringo Viejo.

    But there is still more bad news. Compounding his high crimes and misdemeanors, President Obama has now caused his Justice Department to open a special hotline for Arizona immigration matters.

    But is this a hotline for Arizona law enforcement officials to get quick response on the queries as to the status of illegal immigrants? No, it is the exact opposite: it has been established so that fifth-column co-conspirators in Arizona can report Arizona local police to the Justice Department if they stop or arrest undocumented aliens.

    It is aimed directly at, for example, Sheriff Joe Arpaio and his staff’s enforcement efforts to control the flow of aliens across the border and through Pima County into his county (Maricopa).

    This is Obama’s personal retaliation for Sheriff Arpaio’s questioning the authenticity of Obama’s birth certificate. Maybe to have done so was foolish and publicity-seeking; but what cannot be ignored is how Obama is willing to put the entire State of Arizona at risk just to exact personal revenge. His announcement that the Federal Government has suspended all immigration cooperation with Arizona authorities is an open invitation to Mexican drug smugglers to invade Arizona without any consequences.

    This is simply breathtaking in its arrogance and hubris. It is as though President Obama has declared war on Arizona, its governor, its law enforcement officials and its citizens. He is actively encouraging the invasion of the State by smugglers and criminals!

    The sooner the House brings impeachment articles against him, the better. This maelstrom will get much worse before it gets better, and cannot end well for our country.

  3. It appears to me that we are likely headed for a realization of the purported Chinese curse—which is to say that we may be headed for "interesting times." How interesting remains to be seen.

    Having gone through the electoral process in my current State (Washington) as a delegate from my precinct to the Legislative District and County and State conventions within the GOP, I am far from sanguine that the leadership of the party in opposition to that of the incumbent President is prepared to take any sort of definitive action to highlight the President's overreaches and derelictions of duty in his sworn office. And it seems to get worse by the week, if not more frequently than that.

    Pax et bonum,
    Keith Töpfer