“Before you get into what the case is about,” Chief Justice John Roberts told Solicitor General Donald Verilli at the beginning of the government’s argument in United States v. Arizona, “I’d like to clear up at the outset what it’s not about. No part of your argument has to do with racial or ethnic profiling, does it? I saw none of that in your brief.”
A non-lawyer might be puzzled. The case, argued Wednesday, is testing the constitutionality of part of Arizona’s S.B. 1070, a statute that seeks to drive undocumented immigrants out of the state by rigid law enforcement.
In many ways, this presidential election features a reversal of a pattern we've gotten used to in recent campaigns. More often than not, it's the Republican who is self-assured and ideologically forthright, while the Democrat apologizes for what he believes, panders awkwardly, and generally acts terrified that the voting public might not like what he has to say. This time around, Barack Obama is the confident candidate, and Mitt Romney is the worried one (which says far more about these two men than it does about this particular historical moment). But there is one major exception to this pattern, on an issue that has re-emerged after being dormant for a decade and a half: guns. It isn't that Romney isn't pandering unpersuasively on the issue.
Ronald Dworkin has an article defending the constitutionality of the Patient Protection and Affordable Care Act in the New York Review of Books that offers an excellent primer on the relevant issues. There are two sections I'd recommend in particular. First, in Section II Dworkin does the most lucid job I've seen so far in explaining why the "activity/inactivity" distinction made by the challengers is so weak:
This term’s last oral argument ends next week with yet another blockbuster case—Arizona v. United States, the challenge to Arizona’s harshly anti-immigrant S.B. 1070. This case poses vitally important questions about individual rights, racial profiling, and the future of individual equality in the United States.
But don’t expect to hear them argued openly next week.
I've argued that the legal arguments against the Affordable Care Act are just libertarianism in a thin disguise—the arguments fundamentally make very little sense unless they're part of a broader argument about the unconstitutionality of the welfare state. Janice Rogers Brown, the ultra-reactionary appointed by George W. Bush to the prestigious D.C. Circuit Court of appeals, doesn't see any need for the disguise.
She’s a single, unemployed mother with three children who finds out that she’s pregnant—just after the father has been sent to prison. She says she is distraught at the idea of hurting her kids by adding another child to the family, giving each of them less money, time, and attention, dragging them further into poverty. But she lives in rural southeastern Idaho, a two-and-a-half-hour drive from the nearest clinic in Salt Lake City—and getting an abortion would require two round trips there, because of the mandatory waiting period.
So she takes RU-486, ordered online, self-supervised. She freaks out at the fetus’s size, stashes it on her back porch, tells a friend, and gets reported to the police.
And, is promptly arrested for inducing her own abortion.
American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill.
(AP Photo/Orange County Jail via The Miami Herald, File)
You know, by now, that George Zimmerman has been arrested and charged with second-degree murder. I am relieved. Like so many, I’ve been just crazed over the fact that an armed man could follow an unarmed teenager walking on the street, shoot and kill him, and not be arrested—all in a way that suggests that it happened because the teenager was black and the shooter was not.
Orin Kerr outlines a five-part test for whether a decision can be called "judicial activism" as a means of assessing whether the label could be fairly applied to a decision striking down the Affordable Care Act. Roughly, the criteria are: 1) whether the decision was motivated by the policy preferences of judges; 2) whether it expands judicial power for future cases; 3) whether it was inconsistent with past precedents; 4) whether it struck down a "law or practice"; and 5) whether the decision was "wrong." On three of the first four criteria, Kerr essentially agrees that a decision striking down the ACA would be "activist." On points No. 3 and No.
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith.
The right’s outrage over Obama’s comments on the Supreme Court are hypocritical. All Obama said was the truth: It would, indeed, be unprecedented for the Supreme Court to overturn Obamacare, signifying a new interpretation of the powers granted to Congress under current Commerce Clause precedent. The president in no way insinuated that he would ignore the ruling, a fact verified by Attorney General Eric Holder in response to an outlandish request by a Reagan appointee on the Fifth Circuit. It was, however, somewhat disheartening to see Obama questioning the court by terming them an “unelected group of people,” as that legitimizes language typically employed by conservatives anytime the courts read the Constitution as protecting some form of social equality.
Last night while I was asleep, highly placed sources whom I cannot identify (because they don’t exist) assured me that Attorney General Eric Holder originally wrote this first draft of a letter he was ordered to submit to Judge Jerry Smith of the Fifth Circuit. The final letter has quite a different tone. But those of us who cherish the rule of law can dream that he might have actually sent Judge Smith the following instead.
Judge Jerry E. Smith Circuit Judge Fifth Circuit Court of Appeals
Connecticut may become the fifth state in the last five years to end the death penalty. The state Senate will likely vote today on a measure that would end capital punishment in all future cases. However, it would not have a direct impact on any of the 11 people currently on death row. If the Senate approves the measure, it will probably have an easy path forward; both the House and the governor support the repeal. But the vote will almost certainly be very close.
Is there an LGBT legal organization that hasn’t filed a challenge to the Defense of Marriage Act? Yesterday, Immigration Equality got on the bus, with a lawsuit challenging DOMA’s Section 3 (which bars the federal government from recognizing same-sex marriages) because it prevents American citizens from sponsoring their same-sex spouses for green cards. When my cousin Laura married a Dutchman, Erik, in a beautiful ceremony at the UN, no one worried that they wouldn’t be able to live together here; of course she’d be able to get him a visa to stay, even if he lost his job.
Under the Fourth Amendment of the Constitution, searches and seizures must be "reasonable." Albert Florence was subjected to an invasive search—including an inspection of his genitals—after being detained following a routine traffic stop for an outstanding arrest warrant (that turned out to be invalid) before being moved to a correctional facility. The state had no evidence that he was carrying any dangerous contraband. Not only did it not have a warrant, not only did it not have the probable cause that would have been necessary for a warrant, it had no individualized suspicion at all. Florence had no reason to believe he would be arrested, and hence no reason to have weapons hidden in his body cavities. Surely such an intrusive search under these circumstances is "unreasonable," right?
