Posts Tagged: Decision

Oct 10

Supreme Court Agrees to Review Ninth Circuit Decision on Using Material Witness Statute to Detain Terrorist Suspects

(Orin Kerr)

Today the Supreme Court granted cert in Ashcroft v. Al Kidd, the case holding then-Attorney General John Ashcroft personally liable for his role in the detention of terrorist suspects under the material witness statute. 

I had a long post on the Ninth Circuit panel decision here: al-Kidd v. Ashcroft: Is Pretextual Use of the Material Witness Statute Unconstitutional?. As I noted then, the qualified immunity analysis in the Ninth Circuit was pretty clearly wrong:

This case raises a novel question of law. I am a Fourth Amendment specialist who teaches and writes in this area and has spent a lot of time pondering how the Fourth Amendment applies in the war on terror specifically, and I myself am not sure whether pretextual use of the material witness warrant statute violates the Fourth Amendment. It’s a really hard question, and there is no caselaw on it all. Given that, I would be hard pressed to understand how this legal question could have been “clearly established” back in 2003, as the majority says.

Part of the problem is that the majority’s qualified immunity analysis is just unpersuasive: It looks to things like the general purpose of the Fourth Amendment, dicta in a footnote in a district court opinion, and the like, all of which is pretty hard to square with how the Supreme Court applied qualified immunity in the most obviously relevant case, Mitchell v. Forsyth, 472 U.S. 511 (1985), which like this case was a civil suit filed against the Attorney General alleging a Fourth Amendment violation in the national security context. 

I also noted:

Fortunately, this case is perfect for Supreme Court review: If the en banc Ninth Circuit passes on it, this case will give the Supreme Court an ideal opportunity to evaluate the very important question of how the Fourth Amendment applies to preventive detention.

Depending on how the case is briefed and how broadly the Justices want to decide it, it looks like they may take advantage of the opportunity. Either way, I would think that a reversal of the Ninth Circuit is highly likely on the qualified immunity issue.

Incidentally, I have a short article on how the Supreme Court has approached Fourth Amendment standards in the national security context here: The Modest Role of the Warrant Clause in National Security Investigations, 88 Texas L. Rev. 1669 (2010)..

The Volokh Conspiracy

Oct 10

EPA’s Ethanol Decision Could Do More Harm Than Good

Two months ago, I warned you about President Barack Obama’s EPA blending politics and science.

ethanol corn

Now, according to an EPA news release issued Wednesday, the “blending” process appears to be complete:

The U.S. Environmental Protection Agency (EPA) today waived a limitation on selling fuel that is more than 10 percent ethanol for model year 2007 and newer cars and light trucks. The waiver applies to fuel that contains up to 15 percent ethanol – known as E15 – and only to model year 2007 and newer cars and light trucks. This represents the first of a number of actions that are needed from federal, state and industry towards commercialization of E15 gasoline blends. EPA Administrator Lisa P. Jackson made the decision after a review of the Department of Energy’s (DOE’s) extensive testing and other available data on E15’s impact on engine durability and emissions.

What does that mean for American consumers accustomed to gasoline that already contains up to 10 percent ethanol? Plenty! In fact, the decision could do more harm than good, according to Jack Gerard, president and CEO of the American Petroleum Institute.

In August, Gerard said this decision — made even before key safety and effectiveness studies have been completed — “could threaten vehicle performance and safety, void manufacturers’ warranties, confuse consumers – and create a public backlash against renewable fuels.”

“Consumers need to be assured that the gasoline they purchase will not damage vehicles, void warranties or erode air quality gains,” Gerard added. “And we as an industry want to continue producing safe and reliable fuels for consumers now and into the future.”

To learn even more about the ethanol issue, watch this video.

Big Government

Oct 10

NARN, the Best Decision Ever Edition!

1-3 pm CT with live video & chat!

The Northern Alliance Radio Network will be on the air today, with our eight-hour-long broadcast schedule starting at 9 am CT. If you’re in the Twin Cities, you can hear us on AM 1280 The Patriot, or on the station’s Internet stream if you’re outside of the broadcast area. The First Team: Power Line’s John […]

Read this post »

Hot Air » Top Picks

Oct 10

Feds Will Not Honor California Voter’s Decision On Marijuana Legalization

Attorney General Eric Holder announced today that even if California voters approve Proposition 19, would legalize marijuana in the state, the Federal Government still intends to prosecute California citizens for consuming a product that is legal within their state’s borders:

SAN FRANCISCO (AP) — Attorney General Eric Holder says the federal government will enforce its marijuana laws in California even if voters next month make the state the first in the nation to legalize the drug.

The Justice Department strongly opposes California’s Proposition 19 and remains firmly committed to enforcing the federal Controlled Substances Act in all states, Holder wrote in a letter to former chiefs of the U.S. Drug Enforcement Administration. The Associated Press obtained a copy of the letter, dated Wednesday.

“We will vigorously enforce the CSA against those individuals and organizations that possess, manufacture or distribute marijuana for recreational use, even if such activities are permitted under state law,” Holder wrote.

The attorney general also said that legalizing recreational marijuana in California would be a “significant impediment” to the government’s joint efforts with state and local law enforcement to target drug traffickers, who often distribute marijuana alongside cocaine and other drugs.

He said the ballot measure’s passage would “significantly undermine” efforts to keep California communities safe.

This isn’t a surprise, of course.

The Federal Government took the same position in 1996 when California voters approved Proposition 215, which legalized marijuana for medicinal use. Despite the clearly expressed will of the California people, and despite the fact that in these particular cases the use of marijuana was being authorized by physicians, the Federal Government continued to prosecute Californians under Federal drug laws that are, typically, much harsher than state drug laws. The Supreme Court ruled in Gonzalez v. Raich that the Federal Government was authorized to do this, even in a situation where the marijuana was grown, prescribed, sold, and consumed, entirely within the confines of the State of California. The Obama Administration has placed a hold a prosecutions of medical marijuana users in California, but there’s no reason that they couldn’t resume at any moment.

All of this raises a question.

If the voters of California want marijuana to be legal within their borders, why should the Federal Government be able to say otherwise? As a practical matter, of course, there is a difference between the California Criminal Code and Title 18 of the United States Code, but that only tells us what is, not what should be. Where in the Constitution, for example, is the Federal Government even authorized to make laws dealing with possession of any substance within the borders of a state where that substance is legal? This strikes me as a perfect example of both the perversion of the Commerce Clause that Dodd  wrote about last week, and the need for the reinvigoration of the Tenth Amendment.  Drug laws should be, for the most part, a purview of state rather than Federal law, and if the people of California want to make marijuana, or any other substance, legal, I don’t see why Eric Holder should be able to tell them otherwise.

Outside the Beltway

Oct 10

Judge’s Decision To Allow Obamacare Suit Blasts Government For Mandate/Tax Flip-Flop

Back in Sept 2009, during one of those rare times George Stephanopoulos actually challenged a Democratic Party position, the ABC commentator argued against the president’s contention that the individual mandate in Obamacare was not a tax increase. Once the oppressive piece of legislation was  passed, and twenty states launched a law suit against what the President told Stephanopoulos was a mandate, the federal government argued in court that the suit should be dropped because it wasn’t a mandate it was a tax.  Federal District Court Judge Roger Vinson was not happy with the flip-flop.

In their brief defending the law, the Justice Department said the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes.  Congress can use its taxing power “even for purposes that would exceed its powers under other provisions” of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.

…Under the Constitution, Congress can exercise its taxing power to provide for the “general welfare.” It is for Congress, not courts, to decide which taxes are “conducive to the general welfare,” the Supreme Court said 73 years ago in upholding the Social Security Act.

But the DOJ left out one important bit of information. The law describes the levy on the uninsured as a “penalty” rather than a tax. In its argument the Justice Department brushed aside the distinction, saying “the statutory label” does not matter.

The federal government’s change in position on this issue earned a strong rebuke from Judge Vinson, who used the Justice Department’s own arguments about congressional accountability against them:

[I]t is obvious that Congress did not pass the penalty, in the version of the legislation that is now “the Act,” as a tax under its taxing authority, but rather as a penalty pursuant to its Commerce Clause power. . . . And, now that it has passed into law on that basis, government attorneys have come into this court and argued that it was a tax after all. This rather significant shift in position, if permitted, could have the consequence of allowing Congress to avoid the very same accountability that was identified by the government’s counsel in the Virginia case as a check on Congress’s broad taxing power in the first place. . . . .

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

The Government found a fall-back position but the judge thought that was nonsense also:

With the Alice-in-Wonderland taxing argument taken away, the government is left with only one constitutional rationalization for the mandate: that forcing individuals who are not engaging in commerce regarding insurance contracts to enter into contracts for insurance with private, third-part insurers is somehow a regulation of interstate commerce.  The government argued that this use of congressional authority was nothing unusual, and that the case should be dismissed.  The Court disagreed, finding the question of whether to allow the claim “not even a close call.”  The Judge found that “[t]he power that the individual mandate seeks to harness is simply without prior precedent”—contrary to the government’s “nothing to see here” argument.   Demonstrating the breadth of the regulatory scheme, the Court noted:

The individual mandate applies across the board. People have no choice and there is no way to avoid it. Those who fall under the individual mandate either comply with it, or they are penalized. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.

Today’s ruling doesn’t mean the war has been won,  it simply means that the suit can proceed. There is still a long way to go, but it certainly was a positive move in the bid to make the government take a step back off our backs.


Oct 10

Obama Defends Decision To Appeal DADT Injunction: This Policy Will ‘End On My Watch’

Moments after the Justice Department asked a district court judge to stay her injunction of Don’t Ask, Don’t Tell so that it could appeal the decision, President Obama told young voters at an MTV-sponsored town hall that the policy should be repealed by Congress, not through an executive order or the courts.

Distinguishing himself from President Harry Truman — who desegregated the armed forces via executive order in 1948 — Obama explained that “the difference between my position right now and Harry Truman’s was that Congress explicitly passed a law that took away the power of the executive branch to end this policy unilaterally. So this is not a situation in which with a stroke of a pen I can simply end a policy.” Obama stressed that he’s been able to convince Secretary of Defense Robert Gates and Joint Chiefs of Staff Chairman Mike Mullen to support repeal and promised that the policy would end “on my watch”:

OBAMA: I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security — anybody should be able to serve. And they shouldn’t have to lie about who they are in order to serve. So we are moving in the direction of ending this policy. It has to be done in a way that is orderly because we are involved in a war right now. But, this is not a question of whether the policy will end. This policy will end and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there, I’ve got to work to make sure that they are changed.

Watch it:

LGBT activists and Democratic lawmakers however, have argued that Obama could use his stop-loss authority to issue an order prohibiting the Secretary of Defense from establishing, implementing, or applying any personnel or administrative policies on the basis of sexual orientation or, alternatively, fail to appeal the recent federal district court ruling if he believes that the policy was unconstitutional. Obama, however, has previously said that it is.

During the town hall, Obama spoke about the recent bullying of LGBT teens and expressed support for legislation that would criminalize such behavior. He also said that he didn’t think being gay or transexual was a choice. “I don’t think it’s a choice,” he said. “I think that people are born with a certain make-up and we are all children of God. We don’t make determination about who we love and that’s why I think discrimination on the basis of sexual orientation is wrong.”


Oct 10

Florida District Decision Rejecting the Federal Government’s Motion to Dismiss the Case Against the Individual Mandate

(Ilya Somin)

There are several interesting aspects of today’s Florida federal district court ruling rejecting the government’s motion to dismiss a challenge to the Obama health care plan’s individual mandate. First, as Randy Barnett emphasizes, this ruling, like the similar Virginia decision before it, further undercuts claims that the lawsuits against the mandate are either frivolous or clearly precluded by existing precedent. Even the recent Michigan district court ruling upholding the mandate conceded that it was a case of “first impression” (although the judge also tried to argue that the mandate ultimately does fit under current doctrine).

I. Judge Vinson Rules that the Mandate is Not a Tax.

Second, Judge Roger Vinson rejected outright the federal government’s claim that the mandate is a “tax” that is authorized by Congress’ authority under the Tax Clause. Instead, he concludes that it is a regulatory penalty, a point that I emphasized in my amicus brief in the Virginia case on behalf of the Washington Legal Foundation and a group of constitutional law professors:

Because it is called a penalty on its face (and because Congress knew how to say “tax” when it
intended to….), it would be improper to inquire as to whether Congress really meant to impose a tax. I will not assume that Congress had an unstated design to act pursuant to its taxing authority, nor will I impute a revenue-generating purpose to the penalty when Congress specifically chose not to provide one. It is “beyond the competency” of this court to question and ascertain whether Congress really meant to do and say something other than what it did.

As the Supreme Court held by necessary implication, this court cannot “undertake, by collateral inquiry as to the measure of the [revenue-raising] effect of a [penalty], to ascribe to Congress an attempt, under the guise of [the Commerce Clause], to exercise another power.” See Sonzinsky, supra, 300 U.S. at 514. This conclusion is further justified in this case since President Obama, who signed the bill into law,
has “absolutely” rejected the argument that the penalty is a tax…. To conclude, as I do, that Congress imposed a penalty and not a tax is not merely formalistic hair-splitting. There are clear, important, and well-established differences between the two. See Dep’t of Revenue of Montana v. Kurth Ranch,
511 U.S. 767, 779–80, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (“Whereas [penalties] are readily characterized as sanctions, taxes are typically different because they are usually motivated by revenue-raising, rather than punitive, purposes.”); Reorganized CF&I Fabricators of Utah, Inc., supra, 518 U.S. at 224
(“‘a tax is a pecuniary burden laid upon individuals or property for the purpose of supporting the Government,’” whereas, “if the concept of penalty means anything, it means punishment for an unlawful act or omission”).

Notice that at least in this instance, President Obama’s preenactment claims that the mandate is not a tax have come back to bite him. 

The federal government now will not be able to rely on the tax argument at the summary judgment stage of the litigation before Judge Vinson (though they will of course be able to raise it again on appeal). Judge Vinson concluded that he had to resolves the tax issue at this early stage of the litigation in order to address the federal government’s claim that, because this was a tax case, the court lacked jurisdiction under the Anti-Injunction Act. 

II. The Commerce Clause and Necessary and Proper Clause Arguments.

The federal government will, of course, be able to raise their Commerce Clause and Necessary and Proper Clause arguments. Here, too, however, Judge Vinson raised serious doubts about the government’s arguments, even though he emphasized that these issues cannot be fully considered at this stage of the process. In his view, the government’s claim that the mandate is clearly supported by existing precedent in this area is “not even a close call.” He emphasized the novel nature of the mandate:

I have read and am familiar with all the pertinent Commerce Clause cases, from Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), to Gonzales v. Raich, 545 U.S. 1, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). I am also familiar with the relevant Necessary and Proper Clause cases, from M’Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), to United States v. Comstock, — U.S. —, 130 S. Ct. 1949, 176 L. Ed. 2d 878 (2010). This case law is instructive, but ultimately inconclusive because the Commerce Clause and Necessary and Proper Clause have never been applied in such a manner before. The power that the individual mandate seeks to harness is simply without prior precedent.

Vinson’s analysis of the Commerce Clause precedents (pp. 62–64 of his opinion) is very similar to my discussion of them in our amicus brief (Part I), though I don’t claim any direct influence. As Vinson emphasizes, the prior cases “involved activities in which the plaintiffs had chosen to engage. All Congress was doing was saying that if you choose to engage in the activity of operating a motel [Katzenbach v. Heart of Atlanta Motel] or growing wheat [as in Wickard v. Filburn], you are engaging in interstate commerce and subject to federal authority.” In this case, by contrast, “[t]he individual mandate applies across the board. People have no choice and there is no way to avoid it….. It is not based on an activity that they make the choice to undertake. Rather, it is based solely on citizenship and on being alive.” There is a slight error in Vinson’s analysis here. Wickard did not hold that growing wheat for use on a commercial farm was itself “interstate commerce.” Rather, it could be regulated because it was intrastate state economic activity that, in the aggregate, has a “substantial effect” on interstate commerce.

Finally, Judge Vinson ruled that all the plaintiffs had standing (continuing a trend from the previous two cases), dismissed two weak federalism-related claims put forward by the state plaintiffs, and refused to dismiss their claim that the funding provisions of the act violated constitutional restrictions on “coercion” of states through conditional federal spending grants. Vinson concluded that this latter argument was just barely strong enough to get to the summary judgment stage. For reasons I may blog about later, I believe that the states’ coercion argument is correct under the text of the Constitution, but highly unlikely to prevail under current Spending Clause doctrine.

Obviously, this is only a ruling on a motion to dismiss. Judge Vinson could end up accepting the government’s Commerce Clause or Necessary and Proper Clause arguments when he decides later whether to grant summary judgment (though I think that improbable based on what he wrote in today’s opinion). Whatever he decides, the case will be appealed to the Eleventh Circuit Court of Appeals. It is quite likely that the issue will eventually be decided by the Supreme Court. It is still my view that the Court is more likely to uphold the mandate than strike it down, though the latter is far from impossible. That said, today’s ruling is certainly a victory for the anti-mandate plaintiffs. 

The Volokh Conspiracy

Oct 10

White House “Talking Points” on Decision in Florida Challenge to PPACA

(Randy Barnett)

Today or tomorrow, we are expecting a ruling on the government’s motion to dismiss the lawsuit against the Patents Protection and Affordable Care Act in Florida district court. Someone sent me what purports to be the “talking points” memo being circulated by Jeff Cruz of the White House “Office of Public Engagement.” I figured that I would do my part by providing these talking points directly to the public without any filter. Given its substance, there is no reason to question its authenticity, and it will enable you to anticipate the government’s reaction to the decision. There is nothing at all surprising, scurrilous, or embarrassing here (except maybe calling these “talking points”), and the memo does provide an overview of some of the other cases now pending,

Of course, there is the continued refrain that all legal challenges to the Act are “frivolous,” a claim even law professors who have been following these suits no longer make. (For my take on why the lawsuits are not frivolous see here.)

In his summaries of the lawsuits, Mr. Cruz fails to mention that the Virginia lawsuit survived the government’s motion to dismiss (as did some counts in the Michigan lawsuit)–which constituted a legal ruling that the challenge was not frivolous–and that the Michigan lawsuit found there was standing to challenge the law.

Also, Mr. Cruz writes “The new law doesn’t work without this requirement,” which is the government’s position as to why it is “necessary” under the Necessary and Proper Clause. But if that claim is accepted, and the mandate is found to be “unnecessary” under existing doctrine, or is otherwise improper, then given the absence of a severability clause, the regulations imposed on the insurance clause should also fall. 

[NOTE: I have deleted the phone number and a portion of the return email address of Mr. Cruz]


From: Cruz, Jeffrey N. []
Sent: Thursday, October 14, 2010 12:40 PM

Today we are expecting a decision in Florida on whether a legal challenge to the Affordable Care Act can move forward. As of today, three legal challenges against the Affordable Care Act have been decided by federal district courts, and all three cases have been dismissed. Attached and below you will find background information and talking points on these legal challenges.


· Thanks to the health care law, Americans no longer have to worry about being denied coverage because of a pre-existing condition, being dropped from insurance or going bankrupt if they get sick. If the plaintiffs get their way, it will all be undone.
· Judges in Maryland, California, and recently Michigan have dismissed cases challenging the constitutionality of the Affordable Care Act.
· The people pushing these cases are politically motivated and outside of the legal mainstream.
· Five of the politician-plaintiffs in these lawsuits are or were running for higher office at some point during the 2010 election cycle.

Nevada Example:
· Nevada Attorney General Catherine Cortez Masto called the legal challenge “futile,” and did not join the lawsuit.
· In an unprecedented move, Nevada Governor Jim Gibbons protested the Nevada AG’s refusal to join a lawsuit by issuing an executive order naming an “all-volunteer” legal team to challenge the law.
· At the time Governor Gibbons was locked in a reelection primary race, which he lost. 

[Las Vegas Review Journal, 8/6/10]
· These irresponsible and partisan suits will cause real harm to real people. The Affordable Care Act has already helped millions of Americans, their families, and their businesses.

This law has:
– ensured that kids with cancer have access to coverage;
– given tax-credits to small-businesses that provide insurance to their workers;
– allowed recent college graduates looking for jobs to stay on their parents plans;
– sent checks to seniors to help pay for their prescriptions.

Individual Mandate:
· This is about individual responsibility, putting an end to free-riders and making sure everyone pays their fair share.
· American families shouldn’t have to shoulder the additional cost of the uninsured. Right now, the average American family with insurance pays over $ 1,000 a year in higher premiums to cover the cost of care for the uninsured.
· The law will ease the cost burden on those who have insurance and make it more affordable for those who don’t by providing financial help to families earning up to eighty-eight thousand dollars a year.

Overturning the Individual Mandate:
· The new law doesn’t work without this requirement. People need to take responsibility for their health coverage so that we can rein in costs and provide access to insurance for everyone including those with pre-existing conditions.
· The minimum coverage requirement prevents people from abusing the system, and procrastinators from jacking-up premiums. Allowing people to delay getting insurance until they are sick in new non-group exchanges will increase premiums by 27 percent in 2019.

Court Cases
At a time when states are making tough choices about budget cuts, opportunistic politicians are wasting taxpayer dollars on a frivolous lawsuit that is bound to fail.
· The Attorneys General, Governors, and state representatives named in these lawsuits are attempting to overturn more than two hundred years of well-established legal precedent.
· The Coverage Provision is absolutely constitutional. Last week a Michigan Federal Court judge rejected a challenge to the coverage requirement, ruling that the law was within Congress’ constitutional right to regulate interstate commerce.


As of October 13, three cases have been decided by federal district courts, and all three cases have been dismissed. The plaintiffs include: four Republican governors, 15 Republican state attorneys general, 17 right-wing advocacy groups.

Maryland District Court — July 28:
The Outcome: The Court dismissed the challenge
The Challenger: Several physicians opposed to “socialized medicine.”
· This case, Anderson v. Obama, was swiftly appealed to the Fourth Circuit Court of Appeals
· September 8, the Fourth Circuit Court of Appeals rejected the appeal and affirmed the District Court’s dismissal.

California District Court – August 27:
The Outcome: The Court dismissed the challenge
The Challenger: The Pacific Justice Institute
· The Court held that the Institute “already provides health insurance to its employees,” who therefore may well be in compliance with the personal responsibility provision when it takes effect in 2014. Therefore, they cannot point to a “threatened or actual injury” and have no “standing” to bring the suit.
· This decision, Baldwin v. Sibelius, has been appealed to the Ninth Circuit Court of Appeals.

Michigan District Court – October 7:
The Outcome: The Court dismissed the challenge
The Challenger: The Thomas More Law Center
· The Court upheld the individual mandate or personal responsibility provision. The Judge agreed that, in order to guarantee insurance protection for all, even those with pre-existing conditions, a personal responsibility provision is needed to prevent additional “cost-shifting” and “even higher premiums,” and to avoid “driving the insurance market into extinction.”
· Thomas More Law Center v. Sibelius, will be appealed to the Sixth Circuit Court of Appeals.

Virginia District Court — Pending:
The Outcome: In Progress – October 18 oral arguments
The Challenger: Virginia Attorney General Kenneth Cuccinelli
· October 18, the Court will hear oral arguments as to the claim that personal responsibility provision is unconstitutional, and therefore the entire health reform law should be struck down.
· The Justice Department will argue that Cuccinelli’s claim has no legal basis and should be dismissed, in line with the Michigan Court’s October 7 decision.

Florida District Court — Pending:
The Outcome: In Progress — October 14 decision to on DOJ motion to dismiss
The Challengers: 21 Republican state attorneys general and governors (Full list below)
· September 14, oral argument was heard on Justice Department’s motion to dismiss the case, Florida et al. v. DHHS et al. The Florida District Judge has promised a decision on the motion October 14.
· If the judge permits some or all of the attorney generals’ claims to proceed, there will be further proceedings and a final decision later this year or early next year.
· This case is notable because the attorneys general challenge, not only the individual mandate or personal responsibility provision, but also the expansion of Medicaid coverage to all adults up to 133% of the federal poverty line, and its establishment of “exchanges” for persons not covered by employer-sponsored group health plans. 

Jeff Cruz
Associate Director
White House | Office of Public Engagement

The Volokh Conspiracy

Oct 10

O’Donnell Mangles The Constitution, Can’t Name One Recent Court Decision She Disagrees With

One of the right’s defining traits is its belief that whatever policy it dislikes is not allowed by the Constitution. This is why GOP candidates make the absurd claims that everything from Medicare to Social Security to unemployment insurance to belonging to the United Nations is unconstitutional. The logic appears to be that, since they do not approve of comfortable retirements for seniors or international treaty organizations, the Constitution must forbid them. During last night’s debate with opponent Chris Coons, Delaware GOP Senate candidate Christine O’Donnell added the First Amendment to the list of constitutional provisions that only means what the right wants it to mean:

However, where the question has come between what is protected free speech and what is not protected free speech, the Supreme Court has always ruled that the communities, the local community, has the right to decide. The issue with the 9/11 mosque — that’s exactly where the battle is being fought, by the community members who are impacted by that, and I support that.

Yet, in another exchange in the same debate, O’Donnell exposed her Palin-like ignorance of the Court’s actual decisions:

QUESTION: A United States Senator has the opportunity to determine, in a way, the make up of [the Supreme Court.]  So what opinions, of late, that have come from our high Court do you most object to?

O’DONNELL: Oh, gosh. Give me a specific one, I’m sorry.

QUESTION: Actually, I can’t, because I need you to tell me which ones you object to.

O’DONNELL:  I’m very sorry.  Right off the top of my head I know that there are a lot but I’ll put it up on my website, I promise you.

Watch it:

O’Donnell’s claim that the First Amendment doesn’t protect people who dissent from their local community’s views would come as a huge shock to residents of Skokie, Illinois (who lost an effort to stop a neo-Nazi march) or just about anyone familiar with the Civil Rights Movement. But, it is also part of a much larger pattern among GOP candidates who profess to be experts on the Constitution even though they lack the most basic familiarity with the document.

When Joe Miller (R-AK) claims that Social Security, Medicare, and unemployment benefits are unconstitutional, he clearly hasn’t read the parts of the Constitution, which enable Congress “to lay and collect taxes” and to “provide for the…general welfare of the United States.” When Sharron Angle (R-NV) claims that it is unconstitutional to belong to the UN, she must be unaware that the Constitution empowers the president “to make treaties, provided two thirds of the Senators present concur.” When Sen. Jim DeMint (R-SC) and Rep. Michele Bachmann’s (R-MN) lips drip with the words of interposition and nullification, they ignore the Constitution’s proclamation that federal law “shall be the supreme law of the land.”

Christine O’Donnell is obviously an unusually ignorant candidate — it’s not every day that a major party selects an anti-masturbation activist who wants to “stop the whole country from having sex” — but the sad reality is that she is hardly an outlier in today’s GOP. In state after state, the Republicans have selected candidates who don’t know the first thing about the Constitution they would swear an oath to defend.


Oct 10

Government Won’t Appeal Judge’s Decision In Terror Trial

The Obama Justice Department has decided not to appeal a judge’s decision to exclude the testimony of a key witness in the trial against Ahmed Khalfan Ghailani, the man the government alleges was an Osama bin Laden associate who conspired to kill Americans in the 1998 bombings of two U.S. embassies in Africa. The judge decided that, since prosecutors only learned of the witness after the defendant was tortured, the court would not hear his testimony.

The trial is likely to get underway today in the trial against Ghailani.

Conservatives like Liz Cheney were quick to blame the Obama administration and Attorney General Eric Holder for the decision to try him in civilian court. “Instead of a slam dunk, Holder is now facing a catastrophe of his own making,” wrote Marc Thiessen.

But the government is proceeding, and apparently federal prosecutors believe they can get a conviction without the testimony.

“An appeal at this juncture would obviously cause a delay — a delay of uncertain, and perhaps significant, length,” Assistant U.S. Attorney Michael Farbiarz wrote in a letter to the judge. “Weighing all of the circumstances, the government does not wish to delay the trial in order to take an appeal.”

Farbiarz said the government disagreed with the judge’s decision and that under different circumstances, it would have appealed, according to the AP.

Aitan Goelman, a former federal terrorism prosecutor, told the AP that the Ghailani case will have an impact where other Guantanamo detainees will be tried.

“If something goes dramatically wrong, that could be relatively devastating,” Goelman said.