Law

Should Liberals Be Mad at Kagan and Breyer?

WikiMedia Commons
While the Supreme Court's decision to uphold most of the Affordable Care Act in NFIB v. Sebelius was generally good news, the decision did have one unfortunate side effect. The Court limited the use of federal spending power with respect to Medicaid, permitting Congress to withhold new grants but not existing Medicaid funds from states if they failed to adopt Obamacare. In other words, governors can reject new federal funds to implement the health-care law without losing the rest of their Medicaid money. Despite the consequences and dubious logic of this holding, however, it was joined by two of the Court's Democratic appointees: Clinton nominee Stephen Breyer and Obama nominee Elena Kagan. Given the escalating conservative outrage over Roberts's joining with the Court's more liberal faction on the other key elements of the case, several writers have wondered: Where's the liberal outrage against Breyer and Kagan? "In contrast to all the weeping and wailing that has accompanied what...

Florida's Voter Purge: What the Hell?

(Flickr/ldcross)
With a tangle of lawsuits and legal complexities, it's easy to get lost in the minutiae of Florida's voter-purge debacle. Last week, as a U.S. District Court ruled on one of the disputes between the Department of Justice and the state of Florida, most of the media discussion focused on who'd won and who'd lost in the rather nuanced court opinion. More legal action comes next week, and the discussion will likely be similar. At its core, though, this is a story of how Florida's secretary of state cast suspicion on thousands of perfectly legitimate voters. Waving around a list of 180,000 potential non-citizens and sending out a sample of 2,700 to elections officials, the state's methodology was deeply flawed. Many of those identified had immigrated to this country and completed the arduous path to citizenship. Now they're at risk of being kicked off voter rolls. With voter-ID laws gaining popularity in states across the country, the purge constitutes a new front in the battle to protect...

What's the "Chief Purpose" of Marriage?

Flickr/inottawa
Last week, I laid out some of my ideas about what is and is not radical about same-sex marriage, boiling down a few of the chief concepts I've argued in public over the past 15 or so years. Maggie Gallagher, chief nemesis of the marriage-equality movement, referred to one of those three posts at The Corner, National Review 's group blog. In response, I noted that we agree , in small part, that allowing same-sex pairs to marry continues to nudge the meaning of the institution in the direction of separating sex and diapers. Maggie responded, paraphrasing me incorrectly (which, all right, isn't misquoting exactly, but which still puts words in my mouth that I would never say, imply, or think) this way: E. J. says we agree that gay marriage in some nontrivial way disconnects marriage, sex, and diapers. It reduces the connection between marriage and its erstwhile chief public purpose: regulating responsible procreation. No, Maggie, that's not what I said. I said that same-sex couples are...

Nine Percent of Pennsylvanians May Not Be Able to Vote for Lack of ID

(Flickr/Katri Niemi)
The debate around voter ID laws is generally one about protection versus disenfranchisement. Advocates of the laws, which require photo identification to vote, often say the law won't have an impact anyone who's voting legally. In Pennsylvania, the Secretary of the Commonwealth assured lawmakers that 99 percent of voters in the state had the necessary identification, and promised that " No one entitled to vote will be denied that right by this bill. " Her views were echoed by Republican lawmakers throughout the state who pushed for the measure. You need a photo ID for everything these days, the logic seemed to go, so why not voting too? After all, who doesn't have a photo ID? Well, a lot of people. The Secretary of the Commonwealth put out a press release Tuesday announcing that 9 percent of registered voters didn't have photo IDs from the state Department of Transportation. Pennsylvania's voter ID law, which became law March of this year, allows voters to use a variety of types of...

The DOJ Takes Aim at DOMA

Late on Tuesday, when just about everyone had already left for their Fourth of July celebrations, the Department of Justice announced that it was asking the Supreme Court to take two DOMA lawsuits, promptly. The first was no surprise: You know that the First Circuit already, very cautiously, declared in the Massachusetts cases ( Gill v. OPM ) that DOMA’s Section 3 was unconstitutional. That’s the section that says that, for federal purposes, marriage is between one man and one woman—and therefore that the United States will refuse to recognize any state’s decision to marry same-sex pairs. It’s because of DOMA Section 3 that I’m married in Massachusetts but not in the United States. If that were overruled, the federal government would have to treat me as married, for purposes such as taxes, social security, inheritance, and so on. I wouldn’t have to file as single hither but as married yon. You recall the backstory here, right? Last year, Obama’s Justice Department declared that it...

Graduating from the Electoral College

We've been electing our president the same way for 200 years. Why do some say it's time for a change?

(Flickr/Occupy Posters)
We all know the states where the 2012 presidential election will be decided. Not New York, which hasn’t voted Republican since 1984, a year when only Minnesota could muster support for Walter Mondale. Not Texas, where you have to stretch back to 1976 to find an election where a Republican victory wasn’t a given. The battlegrounds on which this year’s presidential race will be waged are Iowa, Ohio, North Carolina, Virginia, Pennsylvania, Colorado, Nevada, Florida, and Wisconsin, and if you don’t live there, you can forget about the presidential campaigns giving you an ounce of attention. You’re either a given in the candidate’s electoral college tally, or they know you’re out of their league. Is it unfair? That majority of states who get ignored election after election sure thinks so. So why, after over 200 years, are we still using the Electoral College? Let’s explain. Who thought up the Electoral College in the first place? Blame the founders. If you remember your history lessons...

A Crack in the GOP's Support for Voter-ID Laws

(Flickr/ Michigan Municipal League)
There's little question what the political calculus behind voter-ID laws is. Advocates argue that the laws, which require government photo identification to vote, are necessary to prevent voter fraud—despite there being virtually no evidence that such fraud is a problem. In practice, the laws will disproportionately have an impact on poor people and those of color, two Democratic-leaning groups that are less likely to have such IDs. Predictably, Republicans have been pushing for these laws, while Democrats generally oppose them. That is, until earlier this week, when Michigan Governor Rick Snyder shot down his own party and vetoed a state voter-ID law . He also vetoed laws that would have made it harder to conduct voter-registration drives and to confirm U.S. citizenship for voters. All three—pushed by Republican Secretary of State Ruth Johnson and sponsored by Republican lawmakers—would likely have dampened turnout, particularly among disadvantaged communities. During hearings on the...

Mississippi's Threat to Roe v. Wade

WikiMedia Commons
As Salon 's Irin Carmon reports , a Republican appointed district-court judge has prevented a new statute that would force the only remaining abortion clinic in Mississippi to close. (The new law was necessary because, despite the best efforts of past Mississippi legislatures, one lone clinic in Jackson has managed to heroically persevere through a maze of state restrictions.) The stay is temporary, and the issue will presumably have to be resolved by a higher appellate court, possibly ending with the Supreme Court of the United States. Should this case make it up the appellate chain, it will provide a crucial test for Planned Parenthood v. Casey , the 1992 case that currently controls reproductive-freedom cases. Under Casey , previability abortions cannot be banned, but regulations that do not constitute an "undue burden" are permissible. The implicit premise of the compromise that upheld Roe v. Wade was that while women seeking abortions could be inconvenienced, they could not be...

Can We Take John Roberts's Word at Face Value?

Flickr/Donkey Hotey
For years, conservatives have articulated a clear legal philosophy to guide their beliefs about the proper role of the courts and the way judges should arrive at their decisions, much clearer than the philosophy liberals espouse. They said they supported "originalism," whereby judges would simply examine the Constitution as the Founders understood it to guide its interpretation today. They said they opposed "judicial activism," wanting judges to simply interpret the law instead of making their own laws. Liberals always replied that these ideas were a disingenuous cover for something much simpler: conservatives just want judicial decisions that support their policy preferences. They see whatever they want in the Constitution and define "judicial activism" as nothing more than decisions whose outcomes they don't like. The reaction to Chief Justice John Roberts joining the Supreme Court's four liberals to uphold the Affordable Care Act shows something revealing about the conservative...

Roberts's Switch in Time

WikiMedia Commons
Jan Crawford has a blockbuster story in which two sources confirm what many people inferred from the structure of the opinions—that Chief Justice John Roberts initially voted to strike down at least some parts of the Affordable Care Act before switching his vote. The story reveals some interesting things about Roberts and the Supreme Court, although we should also be careful about taking all the claims at face value given that they clearly reflect the positions of justices and/or clerks with an ax to grind. The most obvious takeaway from the Crawford piece is that there was a fairly substantial rift created on the Court by Roberts's eventual decision to uphold the bill. While some details about the internal deliberations of the Court generally leak out eventually—as clerks have less to fear in terms of reprisals or as court papers are released by retired justices—for these details to emerge less than a week after a decision is handed down is extraordinary. Clearly, some of the...

Judges Take On Climate Skeptics

(Flickr / freefotouk)
Three of the D.C. Court of Appeals’ judges delivered climate-regulation opponents what can only be termed a righteous smackdown last week. Their opinion on the Environmental Protection Agency’s work to regulate greenhouse gases is, as much as any legal opinion can be, a delight to read. From the barely tempered exasperation in the court’s opening salvo—“We begin with a brief primer on greenhouse gases”—to the impatience with the lines of reasoning called upon by industry and its allies in state government—“This argument is little more than a semantic trick”—this legal document is a salve for anyone sick of the protestations against taking any action, ever, to tackle the looming disaster that is climate change. The case at hand combined a mountain of complaints about almost every action the EPA has taken to regulate carbon. The agency began the process in 2007 in response to the Supreme Court’s requirement that it consider whether the Clean Air Act covered greenhouse-gas emissions. In...

Reading the Tea Leaves in the Supreme Court Opinions

Jaime Fuller
Two features of the scene in the courtroom at the Supreme Court Thursday flow together to spark curiosity. For one, the justices appeared unusually agitated. Justice Sonia Sotomayor looked as if she’d been up all night, for example, while (as Tony Mauro also noted) Justice Antonin Scalia was downcast and tight-lipped. Had something happened in the days or hours before the opinion to spark this emotional response? In his bench dissent, Justice Anthony Kennedy stressed that the act had been so mutilated by the Court’s decision that it should be struck down in its entirety. That struck me at the time as odd. The Medicaid expansion, as I explained yesterday, is an important part of the act. Even so, it’s not the heart of it—that was the individual mandate. The government had argued that, if the Court struck the mandate, it should also strike the provisions guaranteeing that the people with “preexisting conditions” can’t be turned down for insurance and barring insurers from discriminating...

Court Stays Clear of Tinkering with the First Amendment

(Flickr / mr_mayer)
Xavier Alvarez got twin pieces of good news Thursday. First, thanks to the Court’s decision in the Health Care Cases, Medicaid in California may soon be funded to supply mental-health services to crazed compulsive liars like him. Second, and of more immediate interest to him, he won’t be doing a year in the federal slam for falsely claiming to have won the Congressional Medal of Honor. United States v. Alvarez was second banana on the Supreme Court stage Thursday, blasted out of the headlines by the stunning decision upholding the Affordable Care Act. But the case had been closely watched in the First Amendment community. That’s because it represented an attempt by the government to find a brand-new, gaping hole in free-speech protection—a First Amendment exception for liars like Alvarez. Alvarez, as has been reported earlier , is a half-crazed poseur who likes to claim, among other things, to have played for the Red Wings, to be the ex-husband of a Mexican movie star—and to hold the...

What’s So Radical about Same-Sex Marriage?

(Flickr / City of West Hollywood)
Two days ago I wrote about David Blankenhorn, longtime “traditional” marriage proponent who reluctantly announced he will no longer oppose same-sex couples’ freedom to marry. I examined his reasoning, because I believe it’s important to understand the logic of those with whom we disagree. And I took issue with Richard Kim’s response at The Nation , which I took to represent the radical/progressive wing of the LGBT movement, which has long groaned at the focus on marriage equality. I got some heated critiques about that post. So yesterday I dug up my longtime agreement with Blankenhorn that allowing same-sex couples into the institution transforms its meaning, furthering the institution’s philosphical and legal shift toward symbolizing gender equality and the separation of sex and babies. My goal yesterday: explain how progressive this shift actually is. But today I’m going to take issue with myself—hey, I’m just talented that way—and argue that there’s a way that Kim, Lisa Duggan,...

Supreme Surprise

(AP Photo)
The verdict of the Supreme Court upholding nearly all of the Affordable Care Act is a victory to be savored in the full knowledge that it may be only temporary and includes potentially damaging changes in constitutional interpretation. It is a victory, first of all, for the millions of people excluded from health insurance who stand to gain protection despite their medical history or low incomes. It is a victory for the rule of law in the face of a group of partisan conservative justices who want to immobilize federal power in social policy. It is a victory for the millions of people who have struggled for decades to achieve equal access to health care. And, not least, it is a victory for President Barack Obama and the Democrats in a critical election year. In fact, the outcome of the election will determine the ultimate significance of the Court’s decision. If Mitt Romney and the Republicans win in November, not only will they repeal the main provisions of the Affordable Care Act;...

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