Category Archives: Courts

ObamaCare and the Constitution – WSJ.com

The constitutional challenges to ObamaCare have come quickly, and the media are portraying them mostly as hopeless gestures—the political equivalent of Civil War re-enactors. Discussion over: You lost, deal with it.

The press corps never dismissed the legal challenges to the war on terror so easily, but then liberals have long treated property rights and any limits on federal power to regulate commerce as 18th-century anachronisms. In fact, the legal challenges to ObamaCare are serious and carry enormous implications for the future of American liberty.

The most important legal challenge turns on the “individual mandate”—the new requirement that almost every U.S. citizen must buy government-approved health insurance. Failure to comply will be punished by an annual tax penalty that by 2016 will rise to $750 or 2% of income, whichever is higher. President Obama opposed this kind of coercion as a candidate but has become a convert. He even argued in a September interview that “I absolutely reject that notion” that this tax is a tax, because it is supposedly for your own good.

Florida Attorney General Bill McCollum and 13 other state AGs—including Louisiana Democrat Buddy Caldwell—claim this is an unprecedented exercise of state power. Never before has Congress required people to buy a private product to qualify as a law-abiding citizen.

As the Congressional Budget Office noted in 1994, “Federal mandates typically apply to people as parties to economic transactions, rather than as members of society.” The only law in the same league is conscription, though in that case the Constitution gives Congress the explicit power to raise a standing army.

Democrats claim the mandate is justified under the Commerce Clause, because health care and health insurance are a form of interstate commerce. They also claim the mandate is constitutional because it is structured as a tax, which is legal under the 16th Amendment. And it is true that the Supreme Court has ruled as recently as 2005, in the homegrown marijuana case Gonzales v. Raich, that Congress can regulate essentially economic activities that “taken in the aggregate, substantially affect interstate commerce.”

But even in Raich the High Court did not say that the Commerce Clause can justify any federal regulation, and in other modern cases the Court has rebuked Congress for overreaching. In U.S. v. Lopez(1995), the High Court ruled that carrying a gun near a school zone was not economically significant enough to qualify as interstate commerce, while in Morrison (2000) it overturned a law about violence against women on the same grounds.

All human activity arguably has some economic footprint. So if Congress can force Americans to buy a product, the question is what remains of the government of limited and enumerated powers, as provided in Article I. The only remaining restraint on federal power would be the Bill of Rights, though the Founders considered those 10 amendments to be an affirmation of the rights inherent in the rest of the Constitution, not the only restraint on government. If the insurance mandate stands, then why can’t Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?

The mandate did not pose the same constitutional problems when Mitt Romney succeeded in passing one in Massachusetts, because state governments have police powers and often wider plenary authority under their constitutions than does the federal government. Florida’s constitution also has a privacy clause that underscores the strong state interest in opposing Congress’s health-care intrusion.

As for the assertion that the mandate is really a tax, this is an attempt at legal finesse. The mandate is the legal requirement to buy a certain product, while the tax is the means of enforcement. This is not a true income or even excise tax. Congress cannot, merely by invoking a tax, blow up the Framers’ attempt to restrain government under Article I.


READ THE REST HERE:  ObamaCare and the Constitution – WSJ.com.

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Levin’s Landmark Legal Foundation to File Immediate Constitutional Challenge If House Dems Try to Pass Health-Care Without Actually Voting on It

CNSNews.com – Landmark Legal Foundation President Mark Levin, who served as chief of staff in the Reagan Justice Department, said he plans to file an immediate lawsuit if House Democratic leaders try to use an unconstitutional manuever to pass the Senate health care bill without actually having to vote on it. “I cannot predict if we would win or lose–this is not as simple as some would have you believe–but I want to put the marker down right now and make it clear to members of the House of Representatives who think the quickest way to pass this is to adopt a rule that assumes that they voted on an underlying bill when they didn’t–that is going to be challenged if they do it,” Levin said on his nationally syndicated radio show Tuesday evening.

READ THE REST HERE:  CNSNews.com – Levins Landmark Legal Foundation to File Immediate Constitutional Challenge If House Dems Try to Pass Health-Care Without Actually Voting on It.

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Justices Will Prevail – NYTimes.com

from: Op-Ed Contributor – Justices Will Prevail – NYTimes.com.

IN his State of the Union address, when President Obama criticized the Supreme Court, Justice Samuel Alito shook his head, scowled and mouthed a two-word dissent: “Not true.” Chief Justice John Roberts, meanwhile, smiled serenely, apparently untroubled by the president’s attack.

Now we know what Chief Justice Roberts really thinks.

Last week, he fired back, describing the scene as “very troubling.” The chief justice painted a harrowing picture of “one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according to the requirements of protocol — has to sit there expressionless.”

The White House, for its part, seems eager to resume hostilities. Robert Gibbs, the press secretary, retorted that what was really “troubling” was Citizens United v. Federal Election Commission, the 5-to-4 ruling that President Obama criticized in his speech. Mr. Gibbs and his colleagues may feel emboldened by a recent poll showing that 80 percent of the public opposes that decision, which swept away restrictions on spending by corporations in political campaigns. Following the White House’s lead, Democratic strategists are portraying conservative justices as beholden to business interests. It has become the opening salvo in the battle over the next Supreme Court nomination — even before a vacancy occurs.

This sort of presidential push-and-shove with the judiciary is unlike any since the 1930s, when Franklin Roosevelt waged a very public battle with the court’s conservative majority over the fate of the New Deal — a fight that culminated in Roosevelt’s plan to enlarge and pack the court. The White House tends to welcome comparisons between Presidents Obama and Roosevelt. But in this case, it is an analogy to avoid. Roosevelt’s court fight makes clear just how much Mr. Obama stands to lose in any such protracted struggle.

Beginning in 1935, in one decision after another, the conservative justices on the Supreme Court struck down New Deal programs, rejecting the underlying notion that governmental power should be used to remedy society’s ills. Roosevelt, in response, accused the court of dragging America back to the “horse and buggy” era and creating a “no man’s land where no government — state or federal — can function.”

In his 1937 State of the Union address, Roosevelt warned the court to toe the line, bringing Democrats to their feet in wild applause. (To his disappointment, all nine justices, in a break from precedent, boycotted the speech.) One month later, the president made his audacious proposal to increase the number of justices from 9 to 15, and to fill the new seats with liberals.

Roosevelt was not the first president to spar with the Supreme Court. A number of reform-minded presidents — Thomas Jefferson, Andrew Jackson, Abraham Lincoln and Theodore Roosevelt among them — had complained that the court was wrongheaded or reactionary. But none carried the fight as far as Franklin Roosevelt did, or paid as dearly for it. Congress defeated his proposal to expand the court. And though the court did reverse itself in 1937 — in the middle of the Senate debate on the president’s plan — Roosevelt had split the Democratic Party, reawakened the opposition and undermined his second-term agenda.

The Obama administration should keep this in mind as it escalates its war of words with the court. Even though most Americans agree with the president’s position on campaign spending by corporations, the political upside of attacking the court may be short-lived. It is one thing for a president to forcefully disagree with a decision. But to engage in a public back-and-forth with the chief justice is fraught with risk. Arguments with the Supreme Court are, as one magazine put it in 1936, “packed with the most deadly dynamite,” for at least three reasons.

First, the Supreme Court is highly resilient. While Americans are often unhappy with it — and can be quick to complain that its members are politically or ideologically driven — the institution is consistently held in higher regard than either of the “political” branches of government. The judicial robe confers a kind of exaltation on nearly everyone who wears it. Judicial sanctity may be a myth, but it is a powerful one; it reinforces our hope that this really is a government of laws, not merely of fallible human beings.

Second, justices are not easily intimidated. Granted life tenure by the Constitution, they are untouchable except by impeachment. In the 1950s and ’60s, as the Supreme Court greatly expanded civil rights and strengthened civil liberties, billboards appeared across the South that said, “Impeach Earl Warren.” But the chief justice and his brethren were unbowed. They knew that only one justice had ever been impeached — Samuel Chase, in 1804 — and he returned to the bench after the Senate acquitted him.

Of course, the Supreme Court does not operate in a vacuum. Justices are human, and are open to influence by public events and political pressure. Roosevelt was convinced that in his fight with the Supreme Court he “lost the battle but won the war,” because one justice finally yielded, swinging the court with him. Similarly, intense criticism of Bush v. Gore, the decision that awarded the 2000 Florida vote to George W. Bush, seems to have had a moderating effect on two members of that majority, Sandra Day O’Connor and Anthony Kennedy, at least for a time.

If the Roberts court, like the court led by Charles Evans Hughes in the 1930s, continues to defy popular opinion as flagrantly as it did in Citizens United, Americans might well turn against it. There is a very real chance that the court, as now composed, would strike down key elements of the Obama agenda — health care mandates, for example, or financial reform, or new environmental regulations — if they find their way onto the docket in the coming years. In that event, progressives might well erupt in protest; Congress might be tempted to curb the court.

Even so, it would not behoove President Obama to lead the charge. Roosevelt’s experience suggests that to personalize the conflict is to allow it to define, and possibly consume, a presidency.

And the argument will not be one-sided, as Chief Justice Roberts’s comments make clear. Although justices have historically been loath to comment on political controversies, Chief Justice Roberts appears less reticent than most of his predecessors — with the exception of Chief Justice Hughes. As Congress debated Roosevelt’s court plan, Hughes swiped at it in speeches and demolished it, point by point, in an open letter to the Senate. The president is not the only one with a bully pulpit.

THE third danger for President Obama in picking a fight with the court is that it will allow his critics to portray him as unconcerned with the independence of the judiciary and eager to consolidate power in his own hands. The White House may be tempted to shrug off these concerns. But President Obama, like Roosevelt before him, is finding out just how real such fears are for some Americans — and how easily his opponents can exploit them. What Roosevelt really wanted, according to a leading Republican at the time, was a court that listened to its “master’s voice.” Many progressives and moderates, despite their allegiance to Roosevelt, came to share that suspicion.

Roosevelt might have avoided his spectacular mistake if he’d listened to his wisest advisers. As he prepared his plan to pack the court, they counseled patience, telling him that the only sure way to change the court’s direction was to change its members when vacancies occurred. Roosevelt didn’t listen — but President Obama should.

The court’s change in direction in 1937 endured because Roosevelt was ultimately able to replace nearly all the justices with his own appointees. If Justice John Paul Stevens retires at the end of this term, as many analysts expect, Mr. Obama will have the chance to make his second appointment. But even then, he will have to wait for an opportunity to shift the court’s balance of power. Patience, in the face of pressing national challenges, is hard. But change, as is now amply clear, does not come quickly.

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The chilling effect of ‘lawfare’ litigation | Alan Dershowitz and Elizabeth Samson | Comment is free | guardian.co.uk

The chilling effect of ‘lawfare’ litigation | Alan Dershowitz and Elizabeth Samson | Comment is free | guardian.co.uk.

Radical Islamic groups in the US are intimidating the media with the cost of defending defamation suits in order to stifle criticism

Recognising that British courts have become a prime destination for “libel tourists”, the House of Lords has recently established a government panel to look into the possibility of amending its laws to make it tougher for foreigners to bring defamation suits in Britain. The UK is notorious for its plaintiff-friendly libel laws which have been accused of being “contemptuous of free speech” and making a “mockery of British justice” and because they silence writers through expensive litigation.

But even as Britain attempts to prevent frivolous libel suits, the battle continues in the US. American courts are being utilised by radical Islamic groups to stifle writers through “lawfare” – the use of law as a weapon of warfare – a tactic that has had a “chilling effect” on free speech. In contrast to the British laws, American libel law favours defendants. However, plaintiffs in the US have learned to sue their critics for defamation, not with the intent to win the case, but with the hope of imposing an unaffordably high cost on criticism of their actions.

A recent case is most instructive: the American Civil Liberties Union sued the government-funded Tarek ibn Ziyad academy for allegedly promoting Islam – a violation of church-state separation. TIZA counter-sued for libel over the ACLU’s statement that it is a “theocratic school”. On 9 December 2009 the court dismissed TIZA’s counterclaim because, as a public school, it is required to show that the ACLU’s statement was false and that it was also made with actual malice or a reckless disregard for the truth, which it was unable to do.

How, in TIZA’s estimation, would a libel lawsuit against the ACLU – one of the strongest defenders of Muslim civil liberties in the wake of 9/11 – have had any chance of succeeding? The fact is that this case is part of a pattern of defamation lawsuits brought to silence critics of controversial Islamic organisations due to increased scrutiny post-9/11. The strategy, which has included actions such as libel tourism in the UK, often works.

Though most defamation claims are deemed baseless by US courts, the enormous cost a lawsuit imposes and the smear of bigotry it achieves has stifled legitimate discussion of some suspect behaviour. Litigation – and the threat of litigation – has prevented concerned citizens from speaking freely and stopped the publication of important information.

In 2003, the Council on American-Islamic Relations sued the National Review for publishing an allegedly defamatory statement. Though NR retracted the statement, CAIR pursued its suit aiming, in NR’s view, to intimidate and punish the magazine. The court threw out the case for lack of merit, but NR still paid more than $50,000 in legal fees.

That is a fraction of what a libel defence can cost. In 2005, the Islamic Society of Boston sued the Boston Herald and nearly a dozen others for defamation. The ISB was building New England’s largest Islamic centre and the defendants were raising legitimate questions about the ISB’s connections to terrorist financing and hate speech. Though the ISB dropped the lawsuit – just weeks before some of their leaders were to give sworn testimony – the defendants incurred close to $2m in legal costs.

The ISB lawsuit had even more damaging consequences. Howie Carr, a columnist for the Boston Herald, said he “know[s] the ISB lawsuit has had a chilling effect on journalists in Boston”. An analysis of the articles printed in the Herald from summer 2003 to winter 2007 supports Carr’s statement. Between summer 2003 and winter 2005, the Herald published 19 articles mentioning the ISB’s alleged connection with radical Islamic groups. After the lawsuit began in 2005 until winter 2007, the paper whitewashed its reporting and no longer mentioned radicalism in the 20 articles that covered the ISB’s activities during that period.

Before 2001, there were five documented defamation cases relating to radical Islamic groups. After 2001, that number rose sharply. Though roughly 20 cases have been identified, the extent of the problem is difficult to determine since these cases are typically settled out of court. Often, the plaintiffs have substantial resources and the defendants cannot afford the legal costs.

A 2004 survey by the American Society of Journalists and Authors found that about 70% of freelance writers earn less than $50,000 annually. It is not surprising then that some would silence themselves, calculating that the personal cost of a lawsuit outweighs the need to inform the public. It is also impossible to know how many threats of a lawsuit have led to self-censorship or inappropriate retractions by writers who fear that their writing, while protected as free speech, will land them in court.

The New York TimesWall Street JournalNew York Daily News, and Boston Herald have all been sued for libel for reporting about the plaintiffs’ connections to radical Islam. Large newspapers may be financially capable of putting up a defence, but may not want the hassle or expense, even when the truth is on their side. Perhaps most daunting is that the extent of the problem is hidden – one cannot know what editors under pressure deem not suitable to publish.

It seems that the UK is beginning to understand the danger that frivolous libel suits pose to free speech and is, therefore, considering the option to reform its laws to secure this most basic democratic value. But as Britain is trying to thwart libel tourism and stop lawsuits that unjustly attempt to prevent the publication of information, the rise in strategic “chilling effect” litigation is a growing concern in the US. Freedom of speech will continue to suffer as long as lawfare is a threat, and the ultimate loser will not be the media – it will be the public.

• Editor’s note: The headline and standfirst were altered on this article at 15:30 on 9 February after the authors objected that the original versions did not accurately represent the article’s intended meaning. We agreed

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