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Ninth Circuit keeps Second Amendment home alone

Originally published June 11, 2016


On Thursday, the Ninth Circuit Court of Appeals in the case of Peruta v. County of San Diego upheld California’s restrictive conceal-carry regulation of firearms. In doing so, the appellate court explicitly ruled that the Second Amendment does not even apply to concealed weapons that are carried in public. Curiously, the court took no position on whether one may openly carry a gun in public – because the issue was not before the court.

The Supreme Court in its landmark 2008 District of Columbia v. Heller decision only went so far as finding an individual, constitutional right to possess a gun in one’s home for self-defense. There has been debate ever since as to whether Heller would be extended outside the home to public spaces. Heller’s author, the late Associate Justice Antonin Scalia, conceded in his majority decision that reasonable gun regulations were still possible. And in 2014, the High Court in Drake v. Jerejian rejected review of a New Jersey law that placed severe restrictions on both the open and concealed carrying of handguns in public.

Up until this week, a three judge panel of the Ninth Circuit in Peruta had been one of only two federal appellate courts since Heller that had found a Second Amendment right to use a firearm in public – which decision was vacated by the full court that reconsidered the case and came to the opposite conclusion. The Ninth Circuit is now in accord with the Second, Third, Fourth and Tenth Circuits that have ruled similarly. And the discordant Seventh Circuit case, Moore v Madigan, that had earlier struck down a conceal-carry law in Illinois was never appealed to the Supreme Court after the state changed its permitting requirements to comply with the court’s decision.

Peruta was brought by gun-rights advocates to challenge California’s conceal-carry law. For an applicant to receive a permit in California to carry a concealed handgun in public, the local sheriff has to find “good cause” based upon a prescribed set of criteria – such as personal defense where there are documented threats or business owners or employees in high-risk professions. When the San Diego sheriff disagreed that Mr. Peruta had shown sufficient justification for such a conceal-carry permit, Peruta sued to challenge the law – and either invalidate or change it to mandate that the sheriff shall have no discretion but “shall issue” the permit upon request. A three judge panel of the normally liberal Ninth Circuit agreed with Peruta and placed California’s concealed weapons law in jeopardy based upon the Second Amendment.

But not so fast.

In its en banc review, the Ninth Circuit conducted an exhaustive review of the original meaning of laws regulating the right to keep and bear arms leading up to passage of the Second Amendment. In other words, the court used “originalist” rules of constitution interpretation championed by Justice Scalia and “engage[d] in the same historical inquiry as Heller. . . .” And it found a plethora of laws dating well back to Edwardian England through colonial and 18th and 19th century America absolutely forbidding the carrying of concealed weapons in public. Thus, the court’s conclusion that the Second Amendment does not extend to conceal-carry restrictions.

As the court put it,

“Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.”

The Ninth Circuit did not opine on whether the Second Amendment provides protection for open carrying of weapons – which could lead to an anomalous result: if one is going to pack heat in public, one might only receive constitutional protection when carrying openly. A more satisfying ruling might have noted that Heller only found an individual right to bear arms in personal defense inside, but not outside, of one’s house.

California Attorney General Kamala Harris played a key role in intervening in the Peruta case to request en banc review of the entire Ninth Circuit when the San Diego sheriff declined to do so.

Given its denial of certiorari in Drake in 2014, while Justice Scalia was still very much alive and active, the Supreme Court seemed to evince hesitancy about wading back into Second Amendment jurisprudence. Now the High Court is down one justice and split ideologically four to four. Under these circumstances, it’s hard to imagine whether the Supremes would even want to review Peruta and if so, how they would resolve it short of a tie – which, by the way, would affirm this week’s Ninth Circuit’s ruling. So as of today, the scope of the Second Amendment remains restricted to the home.


Scalia’s passing may end conservative domination of the Supreme Court

Originally published February 13, 2016


With the passing today of Associate Justice Antonin Scalia, the Supreme Court is set for major changes. For one, the 79 year old justice will likely be replaced by one several decades his junior – thus, starting the process of rebalancing the High Court for a generation. Second, if President Obama, or his possible Democratic successor, picks Scalia’s replacement, it would be the first time since the administration of Lyndon Johnson that the Supreme Court might enjoy an outright liberal majority.

In his seven years in office, President Obama has had the opportunity to name only two justices – Sonia Sotomayor and Elena Kagan – but those appointments replaced two retiring liberals – David Souter and John Paul Stevens, respectively – maintaining the ideological status quo on the Court. And that status quo was quite conservative.

Before retiring, Justice John Paul Stevens noted that since 1971, every one of the justices appointed to the Court was more conservative than the justice who was replaced. Indeed, we can credit (or blame) the two Bush presidencies for the current conservative majority. George H.W. Bush’s replacement of civil rights icon Thurgood Marshall with arch conservative Clarence Thomas – followed by George W. Bush’s replacement of moderate Sandra Day O’Connor with Samuel Alito (known as “Scalito”) cemented a 31-year march rightward.

It is a mark of how conservative the Court has become that the few major liberal victories in the current era of the Roberts court – most especially on gay rights – have depended on the swing vote of Anthony Kennedy, a moderate conservative with libertarian leanings, or in the case of ObamaCare, of Chief Justice John Roberts, a conservative with pragmatic leanings.

Scalia came of age during, and in contradistinction to, the grand era of the Warren court, which desegregated the public schools (Brown v. Board of Education), modernized criminal justice (Miranda v. Arizona and Gideon v. Wainwright) and established a right of privacy (Griswold v. Connecticut, which formed the intellectual foundation for abortion rights in the later case of Roe v. Wade). Justice Scalia was among the loudest voices in his generation for the conservative jurisprudence of originalism. Originalism is a theory of constitutional interpretation that seeks to divine the original meaning of the Constitution from the text itself or where unclear, from what the public would have understood those words to mean at the time of ratification. This means the Constitution was frozen in meaning as of 1789 (at its original ratification), 1791 (for the Bill of Rights) and between 1865 and 1870 (for the Civil War Amendments).

Or as Scalia famously, and infinitely more colorfully, explained in a 2013 book promotion tour,

“[The Constitution is] not a living document. It’s dead, dead, dead.”

Conceptually, Scalia meant his originalism to be a constraint on the Court’s ability to interpret the Constitution. His jurisprudence developed to serve as a brake on what he perceived as Warren era excesses and to roll back the New Deal era that gave expanded powers to the federal government under modern views of the Commerce and Due Process Clauses. Fundamentally, Scalia’s originalism was a frontal attack on the principle of judicial review established by our first Chief Justice, John Marshall, in Marbury v. Madison, which permits the Supreme Court to make final, binding precedent for the nation and “say what the law is.” Judicial review is based on the English common law system of justice that formed the very basis of the Framer’s understanding of the words they used in drafting the Constitution. And judicial review is a system of justice that respects judicial precedent but allows each generation of jurists add to the common law as is required to modernize the spirit of the laws and apply them to current conditions.

Justice Scalia will be remembered for his blistering dissents, in which he stood athwart the Court’s historic application of the principles of the Equal Protection to gays and lesbians in invalidating anti-sodomy laws and establishing marriage equality – because no such rights would have been recognized almost 150 years ago at the time of the ratification of the Fourteenth Amendment. But ironically, Justice Scalia will also be most remembered for his majority decision in District of Columbia v. Heller that ignored originalism and found, for the first time, an individual right to bear arms in the text of the Second Amendment that only expressly provides such a right to “well regulated” state militias.

The immediate impact of his death will be felt most significantly in the balance of the current Supreme Court term. His absence now deprives conservatives of a majority in what otherwise might have been 5-4 decisions decimating public employee unions, abrogating “one man, one vote” in Congressional redistricting (to the detriment of Democrats for the foreseeable future) and restricting the scope of the contraception mandate under the Affordable Care Act.

Just last week, a majority of the Court, including Scalia, issued an almost unprecedented stay of the EPA’s new regulations to curb emission from coal-fired power plants – which court action many believe will undermine the recent Paris Agreement to tackle climate change on a global basis. The case now goes back to the Court of Appeals, where two of the three judges on the panel hearing the case are Democratic appointments. If they expedite the case and rule in favor of the Administration, the Supreme Court now lacks a fifth vote to overrule them. And a 4-4 tie affirms the lower court ruling.

President Obama spoke to the nation this evening, saying that he will fulfill his constitutional duty to nominate a replacement justice. Senate Republicans are vowing to block a vote on any such replacement until the next president takes office. It is odd that the passing of Scalia, who vociferously advocated but did not always practice judicial restraint, now frames the current presidential election.

To the chagrin of conservatives, ObamaCare ruling is a model of restraint

Originally published June 26, 2015

46f753911dba79449670532283a05d90The federal judiciary is supposed to be the “least dangerous” branch of government owing to its limited powers. It has no standing army or purse strings. Its powers emanate from its great interpretive ability to “say what the law is.”

The Warren Court gained a reputation as being “activist” because, according to critics, it went beyond interpreting the law to creating it out of whole cloth – thus usurping the legislative function.

Judicial restraint can fairly be said to include the Court’s adherence to the Constitution in interpreting rights, deference to Congress in reviewing legislation and respect for the Court’s own prior rulings making precedent.

Chief Justice John Robert’s majority opinion upholding ObamaCare subsidies in King v. Burwell complies with all three of these tenets of judicial restraint – though you wouldn’t know it from his detractors on the right. Roberts read the statute as a whole and interpreted it according to what it was designed by Congress to do: “improve health insurance markets, not to destroy them.” Sounds like what a judicial umpire would, and should, do.

For his efforts, Roberts earned the scorn of Republicans. Presidential candidate Mike Huckabee echoed timeworn conservative complaints, bemoaning “unelected” judges “circumvent[ing] Congress” and “legislat[ing] from the bench.” “[J]udicial tyranny,” he declared on twitter!

No one let Huckabee know that the old clichés of the right during the Warren Era don’t really fit the new conservative jurisprudence.

In his column with the only mildly hyperbolic title, “John Roberts helps overthrow the Constitution,” George F. Will is at least honest about the new conservative complaint against John Roberts. He’s too judicially modest!

George Will bemoans the Court’s “vast deference to the purposes of the political branches.”

“Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. . . . The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power.”

When did it become the Supreme Court’s function to stop the government from effectively governing for its own sake?

George Will can’t decide if he’s more upset that Roberts has deferred to the executive or to the legislative branch in cleaning up the inartfully drafted portions of the Affordable Care Act so that they function as designed. He forgets that King v. Burwell presented a simple question of statutory interpretation, not of constitutional powers (that was already decided in favor of the ACA last term).

The right’s real objection is that Roberts is not a conservative activist – in the model of say, Antonin Scalia. Republicans wanted the Supreme Court to do judicially what they failed to do politically — repeal ObamaCare. That is not the job of a modest judiciary in line with its constitutional dictates.

Scalia’s new rule of interpretation for ObamaCare: “statutes that make no sense”

Originally published March 29, 2015

41705253a4c94fd4f433fba4149b517bThe Supreme Court has long used established canons of interpretation for federal statutes that yes, focus first on the plain meaning of the words that Congress used to express itself in drafting the text of law. But second, do not read words in isolation and instead, attempt to do justice to the legislative intent of the statute as a whole. Indeed, Justice Scalia has previously been a champion of what he called the “holistic endeavor” of statutory interpretation.

But that was until his considerable skills as the chief advocate for conservative results were called upon, again, to judge the legality of the Affordable Care Act.

Now Scalia has jettisoned his previously expressed position on statutory interpretation to do the right’s bidding in striking subsidies available to millions of lower income earners who wish to purchase health insurance under ObamaCare. In oral argument this month in King v. Burwell, Scalia actually suggested that in interpreting federal law, the High Court should keep in mind that Congress may well have intended laws that are both ill-conceived and make no sense – and that the Court should not be concerned if its interpretation might lead to an absurd result.

At issue in the case is one phrase in the 1,000-plus page law that allows healthcare subsidies for those that enrolled in ObamaCare through an “Exchange established by the State.” Since many red states refused to create their own “exchanges,” the argument goes, those who purchased insurance through a replacement federal exchange do not qualify for a subsidy.

Leave aside that no one who actually participated in the drafting of the law says that Congress intended such a narrow reading and that the lack of subsidies would send the federal exchanges into death spirals, undermining its carefully crafted architecture.

Legal scholars have explained that if the definition of “Exchange” as used in the statute is read in context, it includes those that the Department of Health and Human Services, now headed by Secretary Sylvia Burwell, established on behalf of states that chose not to do so for themselves.

First, Congress defined the term “exchange” with a capital “E,” three times, as an “Exchange” “established by the State,” [including in the sub-section of the statute under scrutiny]. . . . . That is what the term “means” each of the 280 times it appears in the statute.

Second, [another section of the Act] directs that if the State elects not to establish an “Exchange,” the Secretary of HHS shall “establish and operate such Exchange,” with a capital “E.” . . . . There is only one conceivable way the Secretary, a federal official, can establish an “Exchange” that has been defined. . . as an entity established by the state: She must act on behalf of the state.

To read the statute any other way would require the Secretary to do something that is, by definition, impossible. In contrast, there is nothing extraordinary about the Secretary acting for, or stepping into the shoes of, or standing in for, the state. This type of legal substitution happens frequently, with the federal government and others acting, for example, as proxies, trustees, lawyers, conservators, guardians, representatives, and agents. If an agent of the state, for example, performs an authorized act on the state’s behalf, it is an act by the state. Here, the authority comes from the state’s election to have the Secretary establish the exchange.

A little perspective goes a long way – both in terms of a reasonable textual reading of the phrase in question in the context of the statute as a whole and the law’s overall intent, which was to provide greater access to health care insurance, whether or not one happens to live in a state that established its own exchange or one in which the federal government stepped in to do so. The ACA is often said to be a three-legged stool, which only works if (1) insurance companies forgo pricing pre-existing conditions into their rates, in consideration for (2) the government imposing a mandate on all individuals to purchase insurance to broaden the risk pool, in consideration for (3) those individuals who would not otherwise being able to afford that insurance receiving subsidies to assist in paying for premiums. Remove any one leg, and the stool collapses.

In light of this perspective, the normal rules of statutory interpretation would reject this latest textual challenge to ObamaCare.

Rules of federal statutory construction include:

  • Follow the plain meaning of the statutory text, except when text suggests an absurd result or a scrivener’s error.
  • Each statutory provision should be read by reference to the whole act.
  • And avoid interpreting a provision in a way that would render other provisions of the act superfluous or unnecessary – or is inconsistent with the general policy, a necessary assumption of another provision or the structure of the statute.

In fact, Justice Scalia is on the record in a 1988 case saying,

“Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”

But that was then. This is now.

At oral argument in Burwell, Scalia proposed a new rule of statutory interpretation.

When faced with the logical implication of the three-legged stool that the phrase providing subsidies to Exchanges was not written or intended to exclude those created by HHS, Scalia asked the Solicitor General the following question:

“I mean it may not be the statute they intended. The question is whether it’s the statute that they wrote. . . . [T]here are no provisions in the statute that turn out to be. . . ill­-considered and ill-­conceived?”

Then in Scalia-like fashion, he clarified exactly what he meant, in asking,

“There are no statutes that make no sense?”

The pretense for Scalia not getting beyond the plain meaning of an “Exchange established by the state” is that it is unambiguous and can only be read in one reasonable way. But this is inconsistent with another of Scalia’s offhanded comments at oral argument that “[t]his is not the most elegantly drafted statute,” which, if true, would appear to qualify the phrase in dispute, at worst, as a scrivener’s error capable of reformation to be read correctly. And most significantly, this pretense can only be true if one puts on blinders and ignores the rest of law and its legislative history.

In other words, Justice Scalia is advocating a narrow reading of the ACA without reference to the whole act that renders its general policy null and void – completely at odds with the original intent of its framers, all of whom are still around and have said so. Instead of a “holistic” approach, Scalia has adopted a new rule of interpretation — the heretofore unknown “Presumption of Irrationality” — to poke holes in ObamaCare so that it cannot survive as a statutory whole. When did we start presuming that legislators do not know how to craft legislation to enact their programs? The problem is not that the ACA makes “no sense.” It is that Scalia’s new rule is nonsense.

Roberts will save Obamacare, but Kennedy may disappoint on marriage equality

Originally published February 3, 2015

04597ef027f0b92f8e95c9539a56396cIf past is prologue, then the marquee Supreme Court rulings this term will be a replay of 2012 and 2013. Three years ago, Chief Justice Roberts switched sides, and engaged in some rather apparent legal gymnastics, to uphold the constitutionality of the Affordable Care Act. And two years ago, Associate Justice Kennedy wrote a sweeping majority opinion striking down the federal Defense of Marriage Act, but failed to join with liberals to affirm a federal constitutional right of same-sex couples to marry. Roberts seemed motivated to maintain by the legitimacy of the High Court by not striking down President Obama’s signature legislative accomplishment; Kennedy by a libertarian sense that it is up to the states, not the federal government, to define marriage.

Assuming nothing has changed in the interim, there’s little reason to think either justice has changed his respective mind on any of these issues.

In King v. Burwell, the Court will have to decide whether the federal government may continue providing subsidies to assist individuals who purchase health insurance in the federal exchange because the state in which he or she resides refused to create its own marketplace. The case comes down to whether a mere Scrivener’s error in merging the text from two Senate committees into a 1,000-plus page bill can defeat the legislation – despite the clear congressional intent, scoring of the bill and administrative interpretation to the contrary.

The original question before the Court in 2012 was whether the individual mandate of the ACA exceeded Congress’ authority under the Commerce Clause. Roberts said, “yes,” but didn’t want to strike the entire law. When he couldn’t get any of his fellow conservatives to sever the good from bad, he turned to the liberals who also took an all-or-nothing approach based upon the design of the ACA. Obamacare rests on three, interrelated legs: (1) the abolition of pre-existing conditions and lifetime caps, which the insurance companies can only afford due to (2) the individual mandate that broadens the risk pool, but which requires everyone to purchase insurance that is only affordable for some if (3) premiums for those making up to four times the poverty rate ($47,080 in 2015) are subsidized. Take away any one of the legs, and the entire enterprise fails – or descends into a so-called “death spiral.”

Roberts saw the logic of the liberals and stretched to find the penalties associated with the individual mandate as a tax, clearly constitutional under the taxing and spending powers of Congress. In doing so, Roberts got a twofer. He restored the legitimacy of the Supreme Court that had badly suffered after its party-line, blatantly political holding in Bush v. Gore. And he laid the groundwork for reeling in the Commerce Clause, a favorite target of conservatives, upon which most of the welfare state has been based since the Great Depression.

So what has changed since? Well, despite website problems during its initial rollout, the ACA has been a smashing success, enrolling millions more insureds than predicted, holding down healthcare inflation and premiums and causing the number of uninsured to plummet. In other words, the equities in favor of saving Obamacare are exponentially greater today than before the program began last year. If Roberts were to torpedo the ACA now, it is no overstatement to say that millions of people will lose insurance and many will die as a result.

And the efficacy of the case against the ACA in Burwell is so legally, factually and morally infirm that it won’t take much effort by the Chief Justice justify upholding the law, again. Robert’s self-created image as a judicial umpire – only calling balls and strikes as presented to him – will be enhanced, at no jurisprudential cost.

Kennedy’s position on marriage equality is more interesting. As the author Romer v. Evans (1996), Lawrence v. Texas (2003) and the aforementioned U.S. v. Windsor (2013) (striking down, respectively, Colorado’s anti-gay Amendment 2, anti-sodomy law nationwide and DOMA), Kennedy has penned some beautiful phrases about the rights of LGBT Americans.

“DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal…. By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect…. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects,… and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Yet, in 2013, on the same day that Windsor was announced, Kennedy joined the dissent in the Proposition 8 case, Hollingsworth v. Perry, that would have found standing and wished to rule on the merits of a national, constitutional right to gay marriage. It was almost inconceivable to believe that if Kennedy desired to find such a constitutional right, the four liberals on the Court would not have, enthusiastically, joined him.

Instead, Roberts became the unintentional hero of gay marriage in California, forming a heterodox majority finding that those seeking to uphold Proposition 8 lacked standing to defend it – thus affirming the lower courts’ rulings striking the law from the books and allowing same sex marriage to resume in the Golden State.

The seeming contradiction between Kennedy’s positions on DOMA versus Proposition 8 may be explained by his political and judicial philosophies. His decisions over the years are consistent with those of an old fashion Eisenhower Republican with a libertarian sense of a limited federal government, reserving plenary powers to the states. This explains why he would view the federal government’s definition of marriage under DOMA as an intrusion into a domain traditionally exercised by the states. And at the same time, not wish to commit the same sort of intrusion by having the Supreme Court craft a federal right to marriage equality.

So what has changed since? Well, actually quite a lot. Numerous federal courts have now followed the logic enunciated in Kennedy’s own majority decision in Windsor to strike down same gay marriage state bans, and now same sex couples in 36 states and the District of Columbia can get married. Thousands of gay couples have wed as a result. A negative Supreme Court ruling would leave the status of these marriages in legal limbo, a message Kennedy would seem loathe to send, especially given his Windsor decision’s consternation at how the children of same sex parents would view their families as second class citizens.

Even more, as one federal court after another has struck down state bans on same sex marriage over the last three years, the Supreme Court has refrained from interfering with their rulings – refusing review them or even grant temporary stays. Since it takes only four justices to grant certiorari, tea-leave-readers believed this showed that other conservative members of the Court (Scalia, Alito, Thomas and Roberts) didn’t have confidence that Kennedy would vote with them.

The optimistic view is that the Court has allowed litigation and legislatures around the country to marinate on the subject and is now primed to take the temperature of public sentiment, which has swung markedly in favor of marriage equality. But there is something tautological about that theory. If Kennedy never really intended Windsor to create the foundation for a federal, constitutional right to gay marriage, then the rulings by numerous courts that have relied upon Windsor to affirm such a right may be suspect.

A more pessimistic view, one that I hold, comes from the two questions certified by the Court when it granted review in Obergefell v. Hodges (in which conservative jurists on the Sixth Circuit Court of Appeals distinguished themselves as being the only appellate court to uphold state bans on same sex marriage): First, do the Equal Protection/Due Process Clauses of the Fourteenth Amendment require a state to license a marriage between two people of the same sex? And second, does the Full Faith and Credit Clause require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

My humble prediction: Kennedy will say “no” to the first proposition, and “yes” to the second. In fact, there would be no need for the second certified question if a majority of the justices were prepared to affirm the first proposition.

And the silver lining: the Full Faith and Credit Clause will, over time, bring marriage equality to all 50 states as married gay couples that recognize same sex unions relocate around the nation. In fact, using this Clause was always an alternative, some think stronger, basis on which to move the cause of marriage equality forward. It has the advantage of being incremental and less threatening. And it may avoid the type of backlash that the Court has experienced when it has federalized big, social issues, such as abortion in 1973 in Roe v. Wade, which we have been fighting ever since (and despite the fact that there was a move toward liberalization of abortion law before the Court weighed in and polarized the sides, some say even spurring the creation of the Moral Majority).

Maybe that kind of incremental progress of which he is the father is what Justice Kennedy really wants as his legacy.

Is Neel Kashkari a secret judicial activist or just targeting public schools?

Originally published October 26, 2014

336b89844e95656ac8efe1eb6a9fa979In trying to unseat California Governor Jerry Brown, his Republican challenger, Neel Kashkari, has run one television advertisement, repeatedly, called “Betrayal.” You’ve seen the ad, which features Kashkari rescuing what appears to be a drowning child from a pool. The pool is supposed to be a metaphor for California’s failing schools under Brown’s leadership – with Kashkari giving the youth a tug out of danger.

What Kashkari doesn’t say in the 30 second commercial, however, is that he is being specifically critical of the decision by Governor Brown to appeal a Los Angeles Superior Court judge’s ruling earlier this year – which ruling is a blatant example of conservative judicial activism.

The fact that Kashkari has made this semi-notorious court case the centerpiece of his gubernatorial campaign shows both his desperation to find something to run on and his hypocrisy in choosing an issue that contradicts the supposed traditional Republican view of the judiciary.

The case in question is Vergara v. California, in which Superior Court Judge Rolf Treu, a Pete Wilson appointee to the bench, ruled in June that the California Education Code’s teacher tenure and removal procedures violate the fundamental right of schoolchildren to an equal and quality education. Of all the causes for low-performing schools, Treu decided that these particular rules were to blame for ineffective teachers who were situated in schools serving poor and minority students – as opposed to say, low teacher pay, infrastructure disrepair or educational funding sequestration.

It was an interesting ruling given that two of the plaintiff students actually attend charter schools (which do not have teacher tenure) and another two (the Vergara sisters themselves) attend a pilot public school in Los Angeles where there is no tenure and teachers can be fired without cause, including “ineffectiveness.”

Sounds like Judge Treu decided to wade into a raging political fight about educational reform – but he did so on the basis of rather general principles of constitutional law, citing, of all things, Brown v. Board of Education, the 1954 Supreme Court ruling that invalidated “separate but equal” in racially segregated schools. When liberals used to do this kind of thing late last century, the conservatives called it judicial activism by unelected judges.

Now conservatives want in on what they formerly criticized.

USA Today opined that “[t]he decision, if upheld, also could clear the way for lawsuits about issues that are rarely fought in courts.”

The newspaper went on:

The case used a novel approach, borrowing civil-rights strategies from unions and school advocates, who have used lawsuits to fight to equalize school funding between rich and poor districts. . . . “Now it’s going to be a strategy that both sides use when they can’t win in political branches,” [quoting an education lobbyist sympathetic to the ruling].

And Kashkari is rather vague about what education policies of Brown he is complaining. All he says is in the ad is that “when kids in failing schools begged Jerry Brown for rescue. . . . HE BETRAYED THEM.” You need to go to Kashkari’s website to see another web video referencing the Vergara case more directly.

Yet, teacher tenure was nowhere in Kashkari’s crosshairs before the June 10, 2014 ruling in Vergara. A review of Kashkari’s 33-page “Education Plan To Transform Schools,” which is also posted on his website, makes no mention of teacher tenure reform. In fact, his plan’s only mention of “tenure” is to bemoan the lack of “tenured professors” in the California State University system, which he believes would help ameliorate the “bottleneck” of courses. So a natural question would be: if tenure helps attract and keep qualified university teachers, why is it so bad for primary school teachers?

Kashkari’s real educational agenda is pretty obvious from the plan on his website, the main focus on which is to promote private charter schools to replace, or become a deregulated model for, traditional school. Charter schooling must not poll well because Kashkari does not mention it by name in any of his television advertising.

Kashkari frames the debate with Brown as one over the latter’s “betrayal” of failing schools – without ever saying expressly how he proposes to privatize, deregulate and defund them. Instead, he embraces a brazen example of conservative judicial activism on an issue he never cared about as the core of his campaign.

Conservative judges forget about original intent in striking ObamaCare subsidies

Originally published July 24, 2014

Court of Appeals for the District of Columbia Circuit ruled earlier this week that an incomplete description of the insurance marketplace in one section of the Affordable Care Act should be strictly construed to deprive millions from receiving needed subsidies and doom the law to failure. Despite the absence of any evidence that the lawmakers who passed the law intended this outcome, and contrary to the IRS’ implementation of the statute, two conservative judges on the appellate court used what has been described as a “typo” to justify their statutory (mis)interpretation.

What ever happened to Justice Scalia’s rule of original meaning?

2d33a7880bda45aabe1ee88793d6932bIn a widely quoted lecture that Justice Scalia gave in 2005, he explained that he was an “originalist.” His manner of interpreting the Constitution or a federal statute is to “begin with the text” and then “to give that text the meaning that it bore when it was adopted by the people.” He rejected strict constructionism, colorfully explaining,

“I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably.”

Justice Scalia meet Circuit Judge Thomas B. Griffith , who wrote the majority opinion in Halbig v. Burwell.

Judge Griffith focused on one phrase in the nearly one thousand-page statute that allowed the government to provide tax subsidies to those who purchased their insurance through an exchange “established by the State.” No mention in that sub-section of the federal exchanges set up by Department of Health and Human Services, which steps in when a particular state chooses not to organize its own exchange. So Judge Griffith re-wrote the statute to say that tax subsidies were “only” available for the state exchanges, not the federal exchanges.

Never mind that the federal exchanges are referenced on equal footing with the state exchanges in numerous other sections in the text of the law; never mind that every state must either have a state or HSS exchange; and never mind that the entire statutory scheme of mandates and group ratings necessitates subsidies for all marketplaces so that people can afford the insurance they are required to carry, whether they buy it on a state or federal exchange, and that the IRS’ implementation of the law was reasonable and consistent with the intent of Congress when it passed the ACA.

And we don’t have to guess about the original intent of the framers of the Affordable Care Act. They are all still around, and none say there was a hidden intent to bury a poison pill deep within the text of the bill to forbid insurance subsidies for the federal exchanges. Indeed, when the Congressional Budget Office scored the ACA before its passage, federal exchange subsidies were included as costs, and no one gave it a second thought.

As it turns out, this outrageous example of conservative judicial activism will likely not stand for long. The three-judge panel that issued the ruling in Halbig consisted of two conservative Republican and one Democratic appointees. The circuit court will likely grant en banc review. And in light of Harry Reid’s breaking of the filibuster for judicial appointments late last year, President Obama was able to fill longstanding vacancies on that court, so that Democratic appointees are now in the majority, 7-4.

And the same day as the D.C. Circuit announced its ruling, the Fourth Circuit Court of Appeals in Richmond, Virginia ruled exactly the opposite on the very same issue.

But really, it shouldn’t require a judge appointed by a Democrat to reasonably interpret a statute. Even Justice Scalia could do that, at least one hopes he could, as an “originalist” who abhors sloppy legal work.

Can Congress sue Obama?

Originally published June 26, 2014

In a word, no.


Wednesday morning the Speaker of the House, John Boehner, told reporters that he was considering legislation authorizing a lawsuit on behalf of Congress against President Obama for violation of unspecified executive orders. The ostensible basis for the suit would be the president’s alleged failure to faithfully execute the laws as written.

While such a lawsuit might have political merits for Republicans in the run-up to the midterm elections, it would not be legally meritorious.

The Boehner Complaint faces at least two preliminary hurdles:

  • lack of Congressional standing to sue; and
  • lack of a justiciable dispute based on the political question doctrine

We recently learned in the Proposition 8 case, Hollingsworth v. Perry, that courts will only hear actual “cases” or “controversies” under Article III of the Constitution. In other words, a litigant may only seek a remedy for a personal and tangible harm. If litigants’ only interest is to vindicate the constitutional validity, or invalidity, of a generally applicable law, they lack standing to sue. The Supreme Court has repeatedly held, such a “generalized grievance” insufficient to confer standing.

The Roberts Court has shown no problem in abrogating longstanding judicial precedent when it was an obstacle to conservative jurisprudence. Still, except under Obama, there has not been a big push on the right to establish some new doctrine of Congressional standing that may be exercised by the institution as a whole. In fact, to do so would run up against the second hurdle that a Boehner action would face: the concept that the separation of powers between the executive and legislative branches dictates that the least dangerous branch, the judiciary, not place its thumb on the scales.

As nicely summarized in a recent International Trade Court opinion:

“The political question doctrine, recognizing our constitutional separation of powers principle, does exclude some disputes from judicial determination. Under this doctrine, a subject matter is not appropriate for judicial resolution where it is exclusively assigned to the political branches or where such branches are better-suited than the judicial branch to determine the matter. [See Baker v. Carr, 369 U.S. 186, 211 (1962); Japan Whaling Association v. Am. Cetacean Society, 478 U.S. 221, 230 (1986) (“The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as `courts are fundamentally underequipped to formulate national policies or develop standards for matters not legal in nature.'”) [Citation.]”

The factors as enunciated in Baker v. Carr, for deciding whether a political question is present are as follows:

  • a textually demonstrable constitutional commitment of the issue to a coordinate political department;
  • or a lack of judicially discoverable and manageable standards for resolving it;
  • or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
  • or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government;
  • or an unusual need for unquestioning adherence to a political decision already made;
  • or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Some of the suggested executive orders that may be the subject of the Boehner Complaint include (1) delaying certain implementation deadlines for the Affordable Care Act; (2) reallocating appropriations under the Affordable Care Act; (3) deferred action to stop deportation of undocumented aliens who arrived as children; and (4) raising the minimum wage and giving other protections to federal contractors.

50bc0d6feff1d5de09fd758fbf5396f1Leave aside the fact that Obama is actually issuing executive orders at a rate more slowly than any president since Grover Cleveland.

The courts have often applied the political question doctrine to find a lack of justiciability in cases arising from the president’s exercise of his conduct of military and foreign policy. Obamacare and immigration might be too tempting of targets for the conservative Supreme Court to ignore.

8fdf52f68e2ad7d610e854b3f83de106But the Chief Justice, most particularly in the Proposition 8 case, has shown that he is not interested in the Court wading into controversies in which it does not belong, which might further tarnish the reputation of the Court. It is a little more than ironic that the same Republicans who for decades have decried judicial activism are now looking to the courts to do their bidding against the Executive Branch. And it is hard to think of an example of a more truly “political question” than the President’s use of executive orders to take action where a “do-nothing” Congress under the minority control of a recalcitrant Tea Party faction has failed to act on so many issues for so long.

Boehner has a constitutional remedy for his grievances, if he’s willing to use it – it’s called impeachment. And there is a political answer for why Republicans won’t pursue it against another Democratic president: because it’s a political loser.

Supreme Court places Second Amendment gun rights under house arrest

Originally published May 7, 2014

71bc27e1093f2b796d654a16c6a4691eIn a little noticed, but potentially significant ruling yesterday, the U.S. Supreme Court denied review of a Second Amendment case from New Jersey that sought to establish a constitutional right to carry handguns in public. The case, Drake v. Jerejian, is important because the trial and appellate courts found that the local sheriff acted reasonably in denying plaintiff a permit to carry a gun in public on the ground that he had no “justifiable need” for such protection.

In other words, the High Court let the New Jersey law stand and decided not to constitutionalize laws that govern gun safety in public places.

Appellate courts in other circuits have come down on varying sides of the issue as to whether the Supreme Court’s gun-rights decisions of the last several years that established a personal right to bear arms were restricted to self-protection in one’s home (as Justice Scalia had framed the issue in District of Columbia v. Heller) or could spill into the streets and beyond. So far, at least, the Supreme Court is staying true to Scalia’s initial formulation that the Second Amendment is akin to a personal right of self-defense at home – meaning that gun safety laws regulating public use are not in immediate jeopardy.

Prior to the High Court’s 2008 decision in Heller, the right to bear arms was circumscribed by language in the Second Amendment limiting its exercise to a “well regulated Militia.” This limitation was based upon the Framers of the Bill of Rights’ concern stemming from the Revolutionary War that British soldiers should not be able to disarm state militias raised for the common defense. In Heller, a 5-4 majority of conservative justices, however, jettisoned the “Militia” restriction as mere surplusage and found a personal right to bear arms to defend oneself inside one’s abode – presumably from the ghosts of British soldiers or perhaps Benedict Cumberbatch (as Kahn, not Sherlock).

d5b18e5952ca1c068619443fbb2b3886In a 2010 ruling, the Supreme Court in McDonald v. Chicago extended Heller to bind the states. And since that time, several cases aimed at testing continued viability of laws regulating the public use of guns have been percolating up through the appellate courts around the country. So far, the Third and Fourth Circuits (New Jersey and Maryland) have reaffirmed Heller in restricting the Second Amendment to self-protection at home. But not the Seventh and Ninth Circuits (Illinois and California). California!

Of all appellate courts, the usually liberal Ninth Circuit Court of Appeals in February of this year concluded to the contrary: that the Second Amendment protects the right to bear arms in public and struck down a San Diego conceal and carry law where the local sheriff had denied plaintiff a permit, finding his concern for personal safety lacked “good cause.”

According to the Ninth Circuit panel in Peruta v. San Diego,

“The Second Amendment does require that the states permit some form of carry for self-defense outside the home. . . . States may not destroy the right to bear arms in public under the guise of regulating it.”

It turns out that the particular three judge panel which decided the case was tilted two-to-one in favor of conservative judges. The losing sheriff who is facing reelection decided not to request en banc review by the entire appellate court. So Kamala Harris, the California Attorney General, is presently attempting to intervene in the case to argue in favor of the constitutionality of California’s conceal and carry gun permit procedure, but her standing has not been ruled upon.

It will be interesting to see if the High Court’s denial of certiorari in Drake has an ameliorating influence on the Ninth Circuit’s decision in Peruta, either to grant en banc review and/or reverse the original panel.

Is the Roberts Court through expanding the Second Amendment – or just temporarily resting?

Even in Heller, Scalia plainly recognized that the Second Amendment does not invalidate all gun safety legislation. His ruling was limited to overruling one particular District of Columbia law that imposed an “absolute prohibition of handguns held and used for self-defense in the home.”

Writing for the Court’s majority, Scalia concluded:

“We are aware of the problem of handgun violence in this country. . . . The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . .”

Indeed, Heller recognized another important limitation on the right to keep and carry arms based upon precedent — namely that the the Second Amendment only protects the sorts of weapons “in common use at the time.” Accordingly, says Scalia, “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right.” This further limitation shows that the Second Amendment, like the entire Bill of Rights, is subject to nuance and reasonable restrictions, which may come into play if and when Congress ever gets around to reauthorizing, and the Supreme Court were called upon to determine the constitutionality of, the Assault Weapons Ban.

The gun lobby is reported to have selected, funded and promoted Drake as a means to test the limits of Supreme Court jurisprudence on the continued legitimacy of gun control legislation. So far, their investment has not paid dividends.

Chief Justice Roberts is the unintentional hero of marriage equality

Originally published June 27, 2013

de77cfef29d332e909fdfcccd055eea8Associate Justice Anthony Kennedy has gotten wide recognition for providing the crucial fifth vote in the Supreme Court yesterday to strike down the Defense of Marriage Act. But it was the Chief Justice, John G. Roberts, Jr., who formed an odd coalition with both liberal and conservative justices in Hollingsworth v. Perry to find that the appellants lacked standing – thus leaving intact the District Court ruling invalidating California’s Proposition 8.

While DOMA’s demise will have broad impact at the federal level, it will not result in one more same-sex wedding. Proposition 8’s demise, however, in the most populous state in the union, is going to be huge. California Governor Jerry Brown and Attorney General Kamala Harris are already instructing the state’s 58 county clerks to get ready to issue marriage licenses to gay couples as soon as the Ninth Circuit’s stay is lifted, which is expected next month.

Justice Roberts’ own cousin, Jean Podrasky, is in a long term lesbian relationship and was present in the Supreme Court when it heard oral argument on the gay marriage cases back in March. She and her partner live in California and now intend marry. Interviewed last night, Ms. Podrasky explained that while she intellectually appreciates DOMA being struck down (thank you, Justice Kennedy), she was really most excited about being able to get married because Proposition 8 is no more (thank, cuz!).

Because Perry was decided on standing, we don’t really know how Justice Kennedy would have voted if the court had reached the merits of Proposition 8. But it wasn’t for his lack of trying. Kennedy’s dissent explained that he thought the proponents of Proposition 8 did, in fact, have standing to defend the law and prosecute the appeal. Justices Thomas, Alito and Sotomayor joined him in that dissent. It strains credulity to believe that if Kennedy had wanted to reach the merits and strike down Proposition 8 as unconstitutional that the four liberal justices would not have joined him – forming the same 5-4 majority as in U.S. v. Windsor, the DOMA case.

Alternatively, if Kennedy had voted to reach the merits and to uphold the constitutionality of Proposition 8, then I’m guessing he would have lost Sotomayor. But given Scalia’s often stated animus toward gays and results-driven jurisprudence, it strains credulity to believe that he would not have signed on to a merits-based decision upholding Proposition 8.

This means that the true hold-out on Proposition 8 was the Chief Justice himself, insisting on a strict procedural view of Article III’s standing requirements (to which Scalia later attached himself when he figured he wouldn’t be able to get to the merits).

This would not be the first time that John Roberts has taken a somewhat quirky position that saved the day – he being the switch in time that saved the Affordable Care Act from doom just last session.

Those following the Supreme Court’s treatment of marriage equality have long thought that Kennedy was leery finding a constitutional right to marry that would bind all 50 states. When framed as an issue of states’ right, Kennedy’s libertarianism and fidelity to principles of federalism allowed him to go as far as finding DOMA to be a federal intrusion into the traditional role of the states in defining marriage. The last thing he would want to do, then, is have the Supreme Court redefine marriage from only recognizing opposite gender marriages to mandating that the states perform same-sex marriages.

Yes, Kennedy was the author of Romer v. Evans, which struck down Colorado’s odious Amendment 2 that had disenfranchised its gay citizens, and exactly ten years ago to the day of yesterday’s rulings of Lawrence v Texas, which outlawed anti-sodomy laws nationwide (essentially making it legal to be gay in America). And, of course, of U.S. v. Windsor itself, using sweeping language to find Section 3 of DOMA that restrictively defined marriage to a violation of the liberty and due process clause of the Fifth and Fourteenth Amendments. But a constitutional right to gay marriage equality was just too far for him.

Can you imagine how bitter-sweet a victory yesterday on DOMA would have been without the accompanying abolition of Proposition 8? If so, there is really only one guy to thank, along with his cousin: the Chief Justice.