Friday, November 14, 2014

Monday, November 10, 2014

Full and Fair Consideration

In a rational world, there should be no reason that Loretta Lynch shouldn’t be confirmed right away as the next Attorney General.  After all, she’s been through Senate confirmation twice before, and as Steve Benen points out, she was approved unanimously.

Ah, but the trick is I said “in a rational world,” and that excludes the whacky world of the GOP and Sen. Ted Cruz.

The junior senator from Texas opined that her confirmation should wait until after the new Senate is sworn in in January because it would be totally wrong to confirm any cabinet position during the lame duck session.

President Obama’s Attorney General nominee deserves fair and full consideration of the United States Senate, which is precisely why she should not be confirmed in the lame duck session of Congress by senators who just lost their seats and are no longer accountable to the voters.

But that rule only applies to Democratic presidents.  In November 2006, after the Republicans lost a lot of seats in the midterms, President Bush fired Defense Secretary Donald Rumsfeld and appointed Robert Gates to replace him.  He was confirmed 95-2 in December 2006; long before the new Senate was seated.  As far as the Constitution is concerned, the new Senate doesn’t get to work until January 2015.  It’s not like the current one went out of business on November 5.  (Well, at least technically it didn’t; it’s had the lights out for the last four years as far as getting anything done is concerned.)

I suspect that Mr. Cruz’s objection is merely a delaying tactic until the new Senate is seated, but for the life of me I can’t fathom any other reason that a black woman appointed by a black Democratic president would face any trouble being confirmed by a GOP majority-led Senate, can you?

Tuesday, October 28, 2014

That Suit Is Out Of Style

Remember the lawsuit the Republicans were going to file against President Obama for not implementing a part of Obamacare that they wanted to repeal in the first place?  Whatever happened with that?

Well, there seem to be three answers for why Boehner’s lawsuit is trapped in limbo. The first is that they never actually intended to follow through with the suit and that this was all a pre-election stunt intended to motivate the GOP base and mollify impeachment-crazy conservatives. That’s difficult to demonstrate conclusively, but it’s a satisfactory explanation for the utter lack of progress on the suit four months after its heavily hyped debut.

The second is that Republicans were actually going to file the suit, but started having second thoughts as the legal rationale fell apart and political embarrassments piled up. Key Republicans broke with Boehner by arguing that asking the courts to intervene in a separation-of-powers conflict was not the best solution, and that Congress’ best answer to executive overreach was to actually pass legislation. When the House Rules Committee held its hearing on the merits of the suit, it was discovered that one of the experts Republicans called to testify in favor of suing had previously argued unequivocally that Congress lacks standing to sue the White House.

As for the legal rationale for Boehner’s proposed action, the suit was considered a wild long shot even before the House voted to authorize it, and since then it’s only faced more and more setbacks. The most recent was turned up by Constitutional Accountability Center attorneys Simon Lazarus and Elisabeth Stein, who found a Congressional Research Service report from September that, in their view, leaves zero doubt that Boehner’s suit has no legal merit:

Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis – no “there” there – at all.

Translation: Never mind.

Monday, October 27, 2014

Law School

Via Steve Benen’s weekly feature “This Week In God” comes the news that Alabama has a proposed state constitutional amendment what would ban “the application of foreign laws” that might violate the state or federal constitution.

Although they don’t specify what “foreign laws” are the focus, we all know they’re talking about Sharia law.

This isn’t just about prohibiting “the application of foreign laws”; this is about anti-Muslim paranoia. In recent years, the threat of “creeping Sharia law” has been common in right-wing circles – it was even an element of Newt Gingrich’s 2012 presidential platform – and now Alabama voters are being asked to change their state Constitution to enshrine that paranoia into law.

There’s a little problem with this amendment aside from the fact that it’s couched in religious bigotry.  By not going full-tilt anti-Muslim in the text and winking at it by saying “foreign laws,” they open themselves up to some unintended consequences.

Remember Judge Roy Moore?  He’s the Alabama Supreme Court chief justice that got himself some shameless self promotion by insisting on having the Ten Commandments posted in his courtroom.  After that ended badly for him, he planted a stone marker the size of a washing machine on the courthouse lawn with the commandments carved into them.  He was standing up for the law that he claims should be the basis for all the laws in America.  However, legend has it that the Ten Commandments were written down by a Jewish guy who was born and raised in Egypt and spent the rest of his life in the Middle East.  Never made it to the United States and missed participating in the drafting of the United States Constitution by a few thousand years.  So they would fall under the definition of “foreign laws.”

Not only that, the basis of American laws and our legal system including trial by jury and the presumption of innocence come from the English legal tradition.  We’re not talking about the language they are written in (even though they do throw around a lot of Latin); we’re talking about the country of England: home of the Magna Carta, also a foundation of our laws, and the people we fought two wars with to keep them out of America.  Sounds pretty foreign to me.

So if the people of Alabama are bound and determined to excise “foreign law” from their legal system in an effort to keep out Sharia, they’ve got their work cut out for them.

Tuesday, October 7, 2014

Now What, Florida?

Florida Attorney General Pam Bondi has been fighting the rulings on marriage equality in the state and waiting for the Supreme Court to do something.  They did.  Okay, Ms. Bondi, over to you.

The decision arrived at an awkward moment for Florida Attorney General Pam Bondi, whose office has filed appeals in several suits challenging the state’s ban.

Immediately after the Supreme Court issued its orders, Bondi faced renewed pressure from gay marriage advocates to drop those appeals. She was already scheduled to appear on a televised debate with her opponent in the November election, who quickly added his voice to the chorus of critics.

“My office, this just came out less than three hours ago, will be reviewing that, see what happens next, there are a lot of other cases in the pipeline,” Bondi said during the debate aired on Bay News 9. “What I’ve always said is that the court must decide this — we need finality from the judiciary.”

Translation: Hamana hamana hamana.

You wanted finality?  You pretty much got it.

The one wrinkle that could come is that the 11th Circuit Court in Atlanta, which is hearing the case of a couple in Tallahassee, could rule next year.

Filed in March, the Brenner case is the furthest along of any of the legal challenges filed in federal court in Florida, and is the first of its kind to reach the 11th Circuit, which also has jurisdiction over Alabama and Georgia.

The plaintiffs are a gay couple who married in Canada in 2009 before moving to Tallahassee, where their marriage license was about as useful as snow shoes.

Gay marriage advocates expect the 11th Circuit to decide the Brenner case in early 2015. Assuming it is appealed, they are optimistic it will travel the same path laid Monday by the Supreme Court, an expedited journey that could bring gay marriage to Florida a year from now. If this happens, bans in Alabama and Georgia would likely topple as well.

Still, there is no guarantee that the 11th Circuit, known for being conservative, would strike down Florida’s ban. If it upholds the law, becoming the first federal appeals court in the country to do so, it could provide the Supreme Court an opportunity to step in to resolve conflicting rulings.

Given yesterday’s punt, it is unlikely that the Supreme Court will even take the case, and if they do, rule in favor of the defendant.  They will be drowned out by wedding bells.

Tuesday, September 9, 2014

Good Question

Read this piece by Digby at Salon about the utter depravity of Justice Antonin Scalia and his views on the death penalty, including his approval of killing innocent people because the justice system failed, and then ask yourself why we allowed this alleged human being to hold a position of power in our society.

Citizens United Amendment Advances

A pleasant little surprise via TPM:

A Democratic-led constitutional amendment to overturn Citizens United and subsequent rulings loosening restrictions on money in politics moved forward in the Senate on Monday evening.

The procedural vote was 79 in favor, 18 against.

The vote means the Senate can begin debate on the measure. But it is highly unlikely to ultimately pass the chamber as it faces fierce Republican opposition. It would need to clear another 60-vote threshold in order to end debate and come to a final vote. And that final vote would require the support of two-thirds of senators to succeed.

The measure, proposed by Sen. Tom Udall (D-NM), would restore the legal right of Congress to establish campaign spending limits. Approved by committee on a party line basis in July, it is one of several pre-election votes Senate Democrats are planning in an attempt to highlight the contrast between the two parties before Americans head to the polls.

It has zero chances of passing, but at least they’re going to talk about it, and it will get the Republicans to tell us exactly why they believe that corporations are people, my friend.

They will claim that it re-writes the First Amendment, which is bullshit.  The amendment gives Congress the power to regulate campaign finance.  It does not itself regulate campaign finance.  And it has a clause that specifically states the amendment does not change the First Amendment.  But the big money backers of the GOP will pull out all the stops, so this amendment will have the lifespan of a spider on a hot griddle.

Friday, September 5, 2014

Slammed Into Reverse

Back in July two federal courts handed down rulings on the federal subsidies in Obamacare.  A court in Richmond ruled that they were permissible, as anyone with a reading comprehension skill beyond Grade Six could tell you.  This happened two hours after a two of three judges on a D.C. court pulled a ruling out of their ass and said that subsidies were not permissible.

Not surprisingly, the second ruling sent the righties such as Ted Cruz into paroxysms of delight, gleefully predicting the death of Obamacare.  But yesterday the D.C. court abruptly reversed itself and withdrew the ruling — basically saying “Never mind!” — and the full court will now hear the case.

This is very good news because it is very likely that the full court will rule that subsides for Obamacare are legal since they are mostly Democratic appointees and well versed in the law.  That means that it’s unlikely that the U.S. Supreme Court will hear the case since they rarely take cases where federal courts are in agreement on an issue.  As far as they’re concerned, it’s settled law.

Thursday, August 28, 2014

Monday, August 18, 2014

Breaking Down and Escalating

The situation in Ferguson has deteriorated since last night.  There are reports of “coordinated attacks,” police are threatening news reporters, and the governor has called in the National Guard.

Missouri’s governor ordered the National Guard onto the streets of Ferguson early Monday after another night of violence following the shooting of an unarmed black teen by police. “Tonight, a day of hope, prayers, and peaceful protests was marred by the violent criminal acts of an organized and growing number of individuals, many from outside the community and state, whose actions are putting the residents and businesses of Ferguson at risk,” Gov. Jay Nixon said in a statement. “Given these deliberate, coordinated and intensifying violent attacks on lives and property in Ferguson, I am directing the highly capable men and women of the Missouri National Guard to assist … in restoring peace and order to this community.”

Meanwhile, the autopsy requested by the family of the man killed that started this situation has been released.  According to the report, he was shot six times, all shots hitting him in the front of his body.

One of the bullets entered the top of Mr. Brown’s skull, suggesting his head was bent forward when it struck him and caused a fatal injury, according to Dr. Michael M. Baden, the former chief medical examiner for the City of New York, who flew to Missouri on Sunday at the family’s request to conduct the separate autopsy. It was likely the last of bullets to hit him, he said.

Mr. Brown, 18, was also shot four times in the right arm, he said, adding that all the bullets were fired into his front.

The bullets did not appear to have been shot from very close range because no gunpowder was present on his body. However, that determination could change if it turns out that there is gunshot residue on Mr. Brown’s clothing, to which Dr. Baden did not have access.

I’m no crime scene expert, and watching reruns of Castle and CSI doesn’t make me one, but it the fatal shot struck him on the top of his head and he was over six feet tall, that suggests that he was neither running away from the police officer or even standing up.

A couple of days it seemed as if the situation was calming down.  Replacing the local police in heavy armor and artillery with the state police who walked among the citizens and talked to them as people seemed to be working.  Then the local police felt the need to release a video from a crime scene that was unrelated to the shooting but showed Mr. Brown as a criminal suspect in a robbery.  That inflamed the issue all over again because it made it look as if the officer that shot him was responding to the robbery when in fact he was not.

We are now back to where we were before cooler heads prevailed.  The National Guard is not a police force, they are a branch of the military.  How exactly will they restore “peace and order” in the community?

Friday, August 15, 2014

What A Difference A Day Makes

Things have cooled off in Ferguson, Missouri, now that the state police have taken over law enforcement.

Before:

Ferguson Police 08-13-14

And after:

Ron Johnson

The dramatic shift came after Missouri Gov. Jay Nixon assigned oversight of the protests to the state Highway Patrol, stripping local police from the St. Louis County Police Department of their authority after four days of clashes with furious crowds protesting the weekend death of 18-year-old Michael Brown.

“All they did was look at us and shoot tear gas,” said Pedro Smith, 41, who has participated in the nightly protests. “This is totally different. Now we’re being treated with respect.”

[…]

Nixon’s promise to ease the deep racial tensions was swiftly put to the test as demonstrators gathered again Thursday evening in the neighborhood where looters had smashed and burned businesses on Sunday and where police had repeatedly fired tear gas and smoke bombs.

But the latest protests had a light, almost jubilant atmosphere among the racially mixed crowd, more akin to a parade or block party. The streets were filled with music, free food and even laughter. When darkness fell —the point at which previous protests have grown tense — no uniformed officers were in sight outside the burned-out QuikTrip convenience store that had become a flashpoint for standoffs between police and protesters.

All it took was a little respect.  Oh, and getting rid of the 82nd Airborne-style weaponry.

Tuesday, August 12, 2014

There Had To Be One

Finally the anti-marriage equality folks get a favorable ruling.

For the first time in nearly fourteen months, a state’s ban on same-sex marriage has withstood a constitutional challenge in court.  A state judge in Tennessee ruled last week that “neither the Federal Government nor another state should be allowed to dictate to Tennessee what has traditionally been a state’s responsibility.”  The decision, issued last Tuesday, has just become available in electronic format.

Roane County Circuit Judge Russell E. Simmons, Jr., of Kingston ruled in a case of two gay men who were married four years ago in Iowa and are now seeking a divorce in their home state of Tennessee.  Unlike every other court ruling — federal or state — since the Supreme Court’s decision in United States v. Windsor in June 2013, the judge rejected the idea that the Windsor decision undercut state authority to ban same-sex marriages.

More than two dozen courts, from trial courts to state supreme courts and federal appeals courts, have faced that constitutional issue, and the string of decisions nullifying the bans was unbroken until the Tennessee decision.

Not being a lawyer — or an oddsmaker — I can’t really say if this means much for the overall status of marriage equality, but it sounds to me as if the judge is hanging his ruling on a weak limb: states’ rights vs. the federal constitution.  But we’ll see.

Thursday, July 31, 2014

Standing Around

Rather than go to law school, I spent my college and grad school years studying theatre.  (Some would say there’s not a lot of difference between the two, but that’s another story.)  So I need someone with a knowledge of the law to explain to me how the House of Representatives can sue the president for not implementing a part of a law that they have voted over fifty times to repeal.

I thought that in order to successfully sue someone, the plaintiff had to show some kind of harm, loss, or infringement and that they suffered by the defendant’s action or negligence.  It will be interesting to see how the House’s attorneys show that they have the legal standing in this case.

Lawyers, have at it.

Wednesday, July 23, 2014

One For, One Against

Can’t we all just get along?

Two federal appeals court panels issued conflicting rulings Tuesday on whether the government could subsidize health insurance premiums for people in three dozen states that use the federal insurance exchange. The decisions are the latest in a series of legal challenges to central components of President Obama’s health care law.

The United States Court of Appeals for the Fourth Circuit, in Richmond, upheld the subsidies, saying that a rule issued by the Internal Revenue Service was “a permissible exercise of the agency’s discretion.”

The ruling came within hours of a 2-to-1 ruling by a panel of the United States Court of Appeals for the District of Columbia Circuit, which said that the government could not subsidize insurance for people in states that use the federal exchange.

The administration will ask for an en banc ruling from the court that ruled 2-1 against Obamacare.  That means the whole court — including the three judges who ruled today — will hear the case and overturn the first ruling.  For now, let the Republicans have their little moment of joy because it won’t last.

This ruling could also have political implications for Republican governors and legislators in states without the healthcare exchanges.  TPM reader HW explains:

…will they build a state health insurance exchange or allow the taxes of a large number of their citizens to go up (remember these are tax credits their middle class citizens are losing, not Medicaid benefits their poorest citizens are not getting in the first place). If you are Rick Scott (FL), Scott Walker (WI), John Kasich (OH), Rick Snyder (MI), or Tom Corbett (PA), all facing competitive races and important races for the long term balance in the House of Representatives, you are faced with a lose-lose proposition. If you say, “still no exchange,” you are basically forcing a large tax increase on health care- that strikes me as a pretty good issue for their Democratic opponents to run on in the fall. If you say, “ok, we’ll build an exchange,” you are alienating your base going into the fall- and, of course, this problem goes away for Americans in these states.

That leaves it up to the Democrats to push the issue: “Hey, voters, Republicans want to raise your taxes and take away your affordable health insurance.”  Run on that, get the policy and the law right, and win the election.

Thursday, July 17, 2014

Tuesday, July 8, 2014

Didn’t See This Coming

Oh, gee, no one could have predicted that when the Supreme Court ruled in favor of Hobby Lobby and their right to corporate religion that it would have unforeseen consequences, now did they?

No, we’re not talking about a Christian college objecting to signing a paper.  We’re talking about something like this.

Lawyers for two Guantanamo Bay detainees have filed motions asking a U.S. court to block officials from preventing the inmates from taking part in communal prayers during the Islamic holy month of Ramadan. The lawyers argue that – in light of the Supreme Court’s recent Hobby Lobby decision – the detainees’ rights are protected under the Religious Freedom Restoration Act (RFRA).

The motions were filed this week with the Washington D.C. district court on behalf of Emad Hassan of Yemen and Ahmed Rabbani of Pakistan. U.K.-based human rights group Reprieve said both men asked for the intervention after military officials at the prison “prevented them from praying communally during Ramadan.”

[…]

“Hobby Lobby makes clear that all persons – human and corporate, citizen and foreigner, resident and alien – enjoy the special religious free exercise protections of the RFRA,” the lawyers argued in court papers. 

In its controversial Hobby Lobby decision, the Supreme Court ruled Monday that the contraception insurance coverage requirement in the Affordable Care Act – also known as Obamacare – violated the rights of “closely held for-profit corporations,” if a company’s owners object to birth control on religious grounds. The court, which decided the case 5-4, said that the mandate “substantially burdens” the corporation’s exercise of religion in violation of RFRA.

Did we miss that part of the ruling that says RFRA applies to Christians only?

Maybe the Supreme Court should have listened to this guy.

Wednesday, July 2, 2014

Florida’s Turn

As court after court rule in favor of marriage equality, we’ve all wondered when Florida would get its turn to step up to the bar.  In one case filed back in January, that turn is today.

On July 2, 2014, Miami-Dade Circuit Judge Sarah Zabel will hear arguments on a motion for summary judgment in this state lawsuit with federal claims filed by the National Center for Lesbian Rights and the Equality Florida Institute.

[…]

On January 21, 2014, the National Center for Lesbian Rights and the Equality Florida Institute filed a lawsuit in state court with federal claims on behalf of six same-sex couples seeking the freedom to marry in Florida. The lawsuit argues that laws in Florida that restrict marriage to different-sex couples violate the United States Constitution’s commitment to equal protection under the law.

The plaintiffs hail from Miami and the surrounding area. They include: Catherina Pareto and Karla Arguello, together for 14 years and raising a young son; Dr. Juan Carlos Rodriguez and David Price, together for 18 years and raising young twins; Vanessa and Melanie Alenier, together for 8 years and raising a child; Todd and Jeff Delmay, together for 11 years and raising a young son; Summer Greene and Pamela Faerber, grandparents who have been together for 25 years; and Don Price Johnston and Jorge Isaias Diaz, who recently got engaged.

The track record for the marriage equality cases since the Supreme Court handed down Windsor last year is perfect: not one court has ruled against a same-sex couple.  Let’s hope that Florida keeps the streak alive.

HT to Freedom to Marry.

Sunday, June 29, 2014

Thursday, June 26, 2014

A Very Good Year

One year ago today the Supreme Court struck down DOMA and ruled in favor of the plaintiff in Windsor, opening the door for same-sex marriage and LGBT rights on a scale that even the most optimistic dreamer could not imagine.

Yesterday, Indiana became the latest state to have its state law against marriage equality ruled unconstitutional, and literally ten minutes later a federal court in Denver ruled that Utah’s ban was also in violation of the Constitution.  That ruling by an appellate court pretty much guarantees that the case will be heard by the Supreme Court.  It’s anybody’s guess as to how the Court will rule on such a case, but at the rate things are going — twenty states now have full marriage equality, and in the states that don’t, their laws are being challenged in court — by the time the case gets to Washington, D.C., it could be all over but the last dying whimper of the sniveling bigots at the Family Research Council.

State of Same-Sex Marriage on 06-25-14

In a way, it was people like the Family Research Council and the hard-core Religious Reich that has made a lot of this progress possible.  Had it not been for them making such a big stink over what other people do in the privacy of their own home and forced a lot of people to examine their own lives, marriage equality would most likely have evolved slowly and ploddingly as states dealt with their own matters and not given a second thought to it.  But now many courageous people — straight as well as gay — stood up in the face of the tyranny of the shamers and defended the fundamental right as human beings to live their life with someone they love regardless of genitalia.  And the louder and more spittle-flecked the suppressed oppressors became, the more ludicrous and laughable their arguments grew until finally enough people, regardless of political or religious persuasion, said “At long last, enough.”

I have said all along that the case for marriage equality comes down to one simple fact: banning same-sex marriage — or any discrimination against the LGBT community, be it job discrimination, housing, or insurance benefits — violates the fundamental right we have as citizens to equal protection under the law.  Our rights cannot be taken away or curtailed simply for who we are or how we identify ourselves.  One freedom cannot apply to one person and not someone else without a good reason, and being black, Muslim, or gay is not a good enough reason.  We have already achieved — at least in the law — relief for the first two.  It is beyond time for the third.

In the ruling in the Utah case, the court noted the anniversary of the Windsor ruling and the swift progress of marriage equality:

In less than a year, every federal district court to consider the issue has reached the same conclusion in thoughtful and thorough opinions – laws prohibiting the celebration and recognition of same-sex marriages are unconstitutional. It is clear that the fundamental right to marry shall not be deprived to some individuals based solely on the person they choose to love. In time, Americans will look at the marriage of couples such as Plaintiffs, and refer to it simply as a marriage – not a same-sex marriage. These couples, when gender and sexual orientation are taken away, are in all respects like the family down the street. The Constitution demands that we treat them as such.

One of the reasons the courts have reached the same conclusion is because when you get right down to it, it’s not that hard a decision to make.  Marriage is a right, regardless of the participants, and so far no respondent to the suits has been able come up with an argument based in the law or Constitution that justifies the state or federal government enforcing the ban on marriage equality.

Who knows where we will be a year from now.  By then even Florida will have joined the others.  And ten years from now we will all look back and wonder what all the fuss was about.

Map via Shakesville.

Wednesday, June 25, 2014

Indiana Same-Sex Marriage Ban Overturned

Wow.

A federal judge struck down Indiana’s ban on same-sex marriage Wednesday, ruling that gay couples have the same marriage rights as couples of opposing genders.

The ruling takes effect immediately, meaning same-sex couples can begin marrying Wednesday. The clerk in Marion County, home to Indianapolis, says the office will start issuing marriage licenses.

U.S. District Judge Richard Young ruled that the state’s ban was unconstitutional. The ruling involves lawsuits from several gay couples.

The Indiana attorney general’s office says it will appeal but had no other immediate comment.

It’s been almost exactly a year since the Supreme Court struck down DOMA and ruled for same-sex marriage in the Windsor case.  Since then the state and federal courts have been striking down the state laws and constitutional amendments on an almost monthly basis.  And yet I never get tired of hearing the news.

Okay, Florida, your turn.

Via Melissa.