Archive for the ‘Supreme Court’ Category

Submitted by Elaine Magliaro, Weekend Contributor

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HobbyLobbySubmitted by Elaine Magliaro, Weekend Contributor

Back in March of this year—during oral arguments in the Hobby Lobby case—Sahil Kapur (Talking Points Memo) said he thought that the conservative Supreme Court Justices “appeared broadly ready to rule against the birth control mandate under Obamacare.” He added that “their line of questioning indicated they may have a majority to do it.” Kapur reported that Chief Justice Roberts and Justices Scalia and Alito “expressed no sympathy for the regulation while appearing concerned for the Christian business owners of Hobby Lobby and Conestoga Wood who said the contraceptive mandate violates their religious liberty and fails strict scrutiny standards under the 1993 Religious Freedom Restoration Act (RFRA).”

During oral arguments, Justice Scalia said, “You’re talking about, what, three or four birth controls, not all of them, just those that are abortifacient. That’s not terribly expensive stuff, is it?”

There are a couple of things I think Justice Scalia should know. First, the four contraceptive methods that Hobby Lobby objected to paying for—Plan B, Ella, and two intrauterine devices—are not abortifacients. They do not prevent the implantation of a fertilized egg into the uterus—which the owners of Hobby Lobby consider to be abortion. Instead—according to the Food and Drug Administration—the four contraceptive methods in question prevent fertilization of an egg. Second, the cost of intrauterine devices can be quite considerable—especially to a woman working for minimum wage or for a company like Hobby Lobby.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Weekend Contributor

We have heard the phrase for quite some time now.  “Corporations are people”.  It sounds so simple, but what does it mean in practice?  The corporate structure is designed to protect individual shareholder assets from creditors of the corporation.  If you maintain your corporate structure requirements and corporate book, the individual’s assets cannot be attached or claimed by a creditor of the corporation.

Corporations are also afforded special tax breaks and tax rates that individual persons cannot take advantage of.  How has the Hobby Lobby decision altered or not altered the corporate veil protection provided to corporations?  (more…)

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President_Barack_ObamaBelow is my column yesterday in the Sunday New York Daily News on the unfolding controversy over President Obama’s unilateral actions to circumvent Congress. The pledge of the President to “go it alone” has already resulted in court losses for the Administration and a growing separation of powers crisis. I testified (here and here and here) and wrote a column on President Obama’s increasing circumvention of Congress in negating or suspending U.S. laws. I ran another column recently listing such incidents of executive over-reach that ideally would have included this potentially huge commitment under Obama’s claimed discretionary authority. I happen to believe that the President is right in many of these areas but that does not excuse the means that he is using to achieve these goals.

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By Mark Esposito, Weekend Contributor

The Antagonists

The Antagonists

I think it was Winston Churchill who reminded us that the “supreme virtue” of government is action. In fact, the greatest of  modern British prime ministers, who often marked his staff memoranda in red with the words “Action This Day,” counseled that ” I never worry about action, but only inaction.” Action in recognizing problems. Action in mobilizing support and action in addressing the causes of human suffering and improving the lives of those over whom you have power and authority.

On this side of the Atlantic, the framers understood this seemingly obvious facet of government. Jefferson wrote, “The purpose of government is to maintain a society which secures to every member the inherent and inalienable rights of man, and promotes the safety and happiness of its people.” Protecting individual  rights and promoting the security and happiness of those individuals is the essential business of government. Not “either-or” but both.

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Supreme CourtBelow is my column today in the Los Angeles Times on a little discussed case that presents a far greater threat to Obamacare than did Hobby Lobby. The Hobby Lobby case is a huge blow for the Administration in terms of one of the most prominent provisions of the Act and recognizing religious rights for corporations. However, it is more of a fender bender for the ACA. Halbig could be a train wreck of a case if it goes against the Administration. We are expecting a ruling any day and the panel is interesting: Judges Harry T. Edwards (a Carter appointee), Thomas B. Griffith (a George W. Bush appointee), and A. Raymond Randolph (a George H.W. Bush appointee). In oral argument, Edwards was reportedly highly supportive of the Administration’s argument while Randolph was very skeptical. That leaves Griffith. It could go 2-1 either way, though in my view the interpretive edge goes to the challengers for the reasons discussed below. This case however is largely a statutory interpretation case, though it has the same separation of powers allegations of executive overreach that we have seen in other recent cases.

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3branchesBelow is my column in the Sunday Washington Post on separation of powers — authored with United States Senator Ron Johnson (R, Wis.). As the piece states, Johnson and I come from sharply different political perspectives, though the most surprising aspect of this collaboration is that he is a Packers fan and I am a Bears fan. We decided to write a piece together to try to seek a nonpartisan response to the rapidly expanding executive power in our system — and the corresponding decline of legislative power. We have been discussing this worrisome shift within our system and the lack of any collective institutional identity, let alone action, from members. We thought, if we could show the common ground in these concerns, it might encourage other members to reach across the aisle in the interests of their institution.

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By Mark Esposito, Weekend Guy

abuAhmed Abu Khatallah’s boat docked yesterday and the reputed Benghazi attacks mastermind was met with a contingent of U.S. Marshals, Navy security and a phalanx of Justice Department types all eager to hear his gilded version of events and to usher him to a US federal courtroom near the White House where the processes of the US justice system could start slowly grinding now in earnest. He pled not guilty for anyone interested. Before his arrival, however, a cacophony of Republican lawmakers decided to weigh in on his treatment aboard the trans-Atlantic cruise ship, the USS New York, provided by the Navy.

As many know, Abu Khatallah was captured in a clandestine operation conducted by US special ops aided by shadowy figures from both inside and out of the Libyan power structure who lured him to a villa where US forces made the arrest. Abu Khattallah, designated by the State Department as a global terrorist, was regarded as a prime suspect due to his affiliation with a group he helped to found and known as the Ansar al-Sharia. A fundamentalist militia group that rose to power after the fall of Gaddafi, it has claimed responsibility for the attack against the U.S. Embassy and American school in Tunis, leading the Tunisian government to declare it a terrorist organization. The group has been implicated in attacks against Tunisian security forces, assassinations of Tunisian political figures, and attempted suicide bombings of locations that tourists frequent. Not exactly the kind of guys you bring home to dinner.

Abu Khatallah’s capture was coup for an administration looking to change the dialog on the Benghazi attack which left four Americans dead including US ambassador J. Christopher Stevens. Criticized for everything from the response (or lack thereof) to the attack by US security forces as well as even the characterization of  the attack itself, the administration has been attempting to change the narrative since 2012. In his new book, Blood Feud, excerpted by the New York Post, author Edward Klein claims President Obama pressured then Sect’y of State Hillary Clinton to issue a release stating the attack was a spontaneous uprising relating to an obscure internet video criticizing Islam.  Knowing the attack coincided with the anniversary of the 2001 attacks on US soil, Clinton bristled.  According to Klein, Clinton said, “Mr. President, that story isn’t credible. Among other things, it ignores the fact that the attack occurred on 9/11.” But the president was adamant. He said, ‘Hillary, I need you to put out a State Department release as soon as possible.” (more…)

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scalia220px-AlfedPalmersmokestacksAssociate Justice Antonin Scalia eked out a victory against the Environmental Protection Agency in a 5-4 opinion today limiting the EPA’s ability to regulate greenhouse gases. However, the decision however does not prevent the EPA from using other means to regulate the pollutants linked to global warming. Specifically the vote means that the Clean Air Act does not allow for the EPA require a point source to obtain a PSD or Title 5 permit. The vote was a straight ideological division with Justice Anthony Kennedy joining his conservative colleagues in the majority. The majority held that “A brief review of the relevant statutory provisions leaves no doubt that the PSD program and Title V are designed to apply to, and cannot rationally be extended beyond, a relative handful of large sources capable of shouldering heavy substantive and procedural burdens.” Utility Air Regulatory Group v. Environmental Protection Agency is the lead case of six cases on the regulation of greenhouse gases.

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By Mark Esposito, Weekend Guy

130227203059-supreme-justices-horizontal-galleryCarol Anne Bond was overjoyed to learn that her best friend, Myrlinda Haynes, had become pregnant. That joy was short-lived when she learned that the father was none other than her husband,Clifford Bond. The Philadelphia woman embarked on a course of revenge that would result in federal charges for deploying chemical weapons and a trip to the United States Supreme Court. Passed in 1998,  the Chemical Weapons Convention Implementation Act, enabled Congress to enforce the terms of an  international treaty banning deployment of some chemical weapons. Taking advantage of that law, federal prosecutors charged Bond with obtaining two chemicals which together or separately could have killed her pregnant rival.

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By Charlton Stanley, Weekend Contributor

500px-Seal_of_the_United_States_Supreme_CourtOn this day in 1892 Homer Plessy was arrested for refusing to leave his seat in the “whites-only” car of a train. The resulting court case, which Plessy lost, generated one of the most disgraceful decisions the Supreme Court of the United States ever made.

On June 7, 1892 thirty year old Homer A. Plessy boarded a train in New Orleans. A short time later, Plessy was arrested and removed from the train at Press and Royal streets by a private detective with arrest powers. The detective had actually been hired by the Comité des Citoyens (Citizens’ Committee of New Orleans), a civil rights group of which Plessy was a member. They were challenging Louisiana’s 1890 separate-car law.

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Weekend Contributor

Thanks to the disclosures made by whistleblower Edward Snowden, we now know how far our government went to hide the warrantless surveillance by the NSA. “If you blinked this week, you might have missed the news: two Senators accused the Justice Department of lying about NSA warrantless surveillance to the US supreme court last year, and those falsehoods all but ensured that mass spying on Americans would continue. But hardly anyone seems to care – least of all those who lied and who should have already come forward with the truth. (more…)

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image_previewUcla_logoWe recently discussed the Supreme Court’s landmark decision in Schuette v. BAMN that states, like Michigan, can prohibit any use of race in admissions in a “color-blind” state entrance system for colleges and universities. Now, a leading school in one of the states with such a color-blind rule is being accused of violating state law by one of its professors. Tim Groseclose, a political science professor at UCLA, has posted data that he was able to obtain from the school that he argues is proof of “cheating” by school officials who refuse to comply with the state law. The question is whether this will be the basis for a post-Schuette challenge in states like California.

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By Mike Appleton, Weekend Contributor

“It certainly may be said that the Bible is worthy of study for its literary and historic qualities.”

-Abington School District v. Schempp, 374 U.S. 203, 225 (1963) (Justice Clark)

“The nation is in danger because of its ignorance of what God has taught. . . . If we don’t know it, our future is going to be very scary.”

-Steve Green, Templeton Biblical Values Award acceptance speech, April 15, 2013.


 

The three children of Edward and Sidney Schempp attended public school in Abington, Pennsylvania in the 1950s. A Pennsylvania statute in effect at the time mandated that, “At least ten verses of the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending Bible reading, upon the written request of his parent or guardian.” The readings were followed by recitation of the Lord’s Prayer and the Pledge of Allegiance.

Mr. and Mrs. Schempp, as practicing Unitarians, objected that various doctrines contained in the readings violated their religious beliefs and sought to enjoin the exercises as a violation of the Establishment Clause. The Supreme Court agreed, finding that the Pennsylvania law violated the principle of “strict neutrality” required under the First Amendment. Abington School District v. Schempp, 374 U.S. 203 (1963).

But while the Court found the statute unconstitutional due to its openly sectarian character, it emphasized that its ruling did not preclude entirely the use of the bible as a valuable educational source. “Nothing we have said here indicates that the study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment.” 374 U.S. at 225. The test of constitutionality, said the Court, is whether a statute has “a secular legislative purpose and a primary effect that neither advances nor inhibits religion.” 374 U.S. at 222.

In the years since the Schempp decision, a variety of academic programs incorporating the bible have been successfully implemented in public schools in a number of states. But there is about to be one more, and the early indications are that this one won’t pass constitutional muster. (more…)

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Jennifer-Gratz-Shanta-Driver-Univ-Michigan-SCOTUS-ruling-ban-affirmative-action-540x295We have been discussing the Court’s ruling in the Michigan affirmative action case, Schuette v. BAMN. This included a recent column in CNN with two of my George Washington law students. This Sunday, civil rights attorney Shanta Driver went on Fox News Sunday to denounce the decision as “racist” and presumably anyone supporting the result. The comments caused quite a stir and highlights the continuing difficulty in discussing such issues — and the fear of some that they will be labeled racists if they support a color-blind admissions process.

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