4th Circuit Upholds Rule of Law in Healthcare Case

In a badly-needed boost to the rule of law and the nation's much-abused new health reform, a three-judge panel on the Fourth Circuit today rejected two attacks on "Obamacare." In one case, Virginia v. Sebelius, the appeals court found that the Commonwealth of Virginia lacked standing to challenge the individual mandate provision and in the other, Liberty University v. Geithner, it ruled that a challenge to the plan's financial penalty for not purchasing individual health insurance coverage was not ready to be heard since the penalty constitutes a tax and taxes may not be challenged until after they have gone into effect and been paid. Both decisions by Circuit Judge Diana Gribbon Motz are a breath of fresh air in a legal and political environment now polluted by partisan and ideological attacks on the health plan.

The decision in the Virginia case, brought by the state's Attorney General Ken Cuccinelli, was an emphatic victory for basic rules of federalism and judicial restraint. Judge Motz found that the court could not hear the case because Virginia lacked standing under long-established jurisdictional principles. As a state, Virginia suffered no "injury in fact" because of the individual insurance mandate it was challenging; the state itself is not "burdened" by it, state officials are not "commandeered" by it, and state sovereignty is not impaired in any way by it. Virginia asserted that it had standing because of a conflict between the new law and a state statute, the "Virginia Health Care Freedom Act," a statute which was transparently cooked up by the legislature for the sole purpose of creating a conflict with the federal health reform law. This state law simply declared that no resident of Virginia "shall be required to obtain or maintain a policy of individual insurance coverage." It had no enforcement mechanism and existed solely for purposes of organizing litigation against the national government. Judge Motz correctly found that, if this kind of metaphysical declaration were enough to create standing, a state could concoct jurisdiction to challenge any federal law just by writing a "not-X" statute. I recall that opponents of the health reform introduced the same meaningless legislation in Maryland and I took great pleasure in pointing out that it had no content. At any rate, Judge Andre Davis dissented from the decision, arguing that the standing problem was no big deal; he would have simply ruled that the individual mandate provision did not exceed Congressional power under the Constitution—and, on this point, he is clearly right.

The other decision, in the Liberty University case, was based on the significant new ruling that the individual insurance mandate is actually a form of federal taxation and the federal Anti-Injunction Act prevents the court from entertaining challenges to taxes until they actually go into effect and have been paid by the litigants. "A taxpayer can always pay an assessment, seek a refund directly from the IRS, and then bring a refund action in federal court," Judge Motz wrote, but the Anti-Injunction Act bars pre-enforcement actions. It is definitely of note that Judge Motz found that, under the Act, financial penalties and exactions are to be treated like a "tax." Both supporters and critics of the decision are noting that this may mark an effort to define and defend the individual insurance mandate as a legitimate exercise of the congressional Taxing power, but this may be over-reading into the court's interpretation of the Anti-Injunction Act, which does have its own body of rules and precedents.

It's not clear yet whether the disappointed litigants will try to take the case en banc to the full right-leaning Fourth Circuit or petition for appeal directly to the Supreme Court. All roads lead to the Supremes in this case since there is currently a split between the Sixth Circuit, which upheld the constitutionality of the individual mandate, and the Eleventh Circuit, which struck it down. In addition, the DC Circuit will be hearing oral arguments in a healthcare challenge in two weeks, so it, too, may add its voice to the discussion by the end of the year. At some point next year, the justices will have to grab the bull by the horns and decide whether they want to fully revive the class-driven judicial activism of the Lochner period by knocking down laws promoting public health and welfare.

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Ensuring accountability in a post­-Citizens United era

The Supreme Court’s 2010 Citizens United decision was quickly followed by warnings of the disastrous consequences of opening the floodgates for corporate spending in future elections, but few would have predicted something as bizarre as what was recently discovered in Delaware.

“Restoring Our Future,” a pro-Romney Super PAC, recently received a generous donation of $1 million from W Spann LLC. However, little is known about the firm that only operated in the state for a period of four months, including even the most basic information about its owners. And experts suggest that this arrangement may well be illegal.

“If they put money into the corporation specifically for the purpose of making a political donation that would constitute, in my view, illegally making a donation to avoid disclosure,” says Paul Ryan of the Campaign Legal Center.

While individuals can of course make contributions to PACs and other political organizations, there are disclosure laws in place to help voters and watchdogs understand where the money is coming from. But because the owners of this corporation don’t need to make their names public, Ryan and others suspect the mysterious firm, W Spann LLC, was set up in order to make a large contribution and avoid disclosing any information about the money’s origins.

Ryan’s group along with other watchdog organizations such as the Public Campaign Action Fund and Democracy are calling on Delaware Attorney General Beau Biden as well as officials from the Justice Department and FEC to look into this questionable conduct. But as we wait to see what happens next, it’s clear that this is yet one more of the many examples illustrating how destructive the Citizens United decision has been to our democracy.

With the important elections in 2012 a little more than a year away, it is incumbent on our elected officials to enact meaningful remedies to ensure the integrity of our elections is protected.

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Enough Signatures Obtained to Put Repeal of Ohio SB 5 on the Ballot, Five Times Over

A petition to repeal Ohio SB 5, which severely curtailed collective bargaining rights for public employee unions, was just certified by Ohio’s secretary of state and attorney general.

# of valid signatures required: 231,147

# of valid signatures obtained: 1,298,301

We Are Ohio

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After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

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Indictments in Maryland Voter Suppression Case

On Election Day last year, while the polls were still open, Maryland Democrats received telephone calls late in the day telling them that Democratic Governor Martin O'Malley had won reelection, so they could "relax" (i.e., not vote). It was soon discovered that the calls were generated by an operative working for the campaign of O'Malley's Republican opponent, former Governor Bob Ehrlich. Yesterday, criminal indictments were handed down against a close Ehrlich aide and a political operative for their efforts to suppress the African American vote. According to the Washington Post:

One of former Maryland governor Robert L. Ehrlich Jr.'s most trusted aides and a campaign consultant were accused Thursday of orchestrating tens of thousands of anonymous election-night robo-calls last year that prosecutors said were part of a larger attempt to suppress the black vote.

Paul E. Schurick, 54, Ehrlich's de facto campaign manager, and Julius Henson, 62, a paid consultant, were indicted on multiple counts of election law violations stemming from an automated call that was placed to more than 110,000 Democrats in Baltimore and Prince George's County, according to prosecutors.

...

The indictments might be the first in the country involving Election Day attempts to suppress voting using robo-calls, experts said. The case also appears to be a rarity nationwide, one in which prosecutors might have the physical evidence necessary to prove intent to commit voter suppression, experts said.

...

"There is a long history in urban areas of people passing out fliers that say Republicans vote on Tuesday and Democrats vote on Wednesday, and specifically in Maryland of ploys telling people if you owe tickets or back child support that you can't vote," [Gilda Daniels, an elections law expert at the University of Baltimore Law School] said. "But this isn't someone printing off fliers that can't be easily tracked. These are phone calls, and there are records of them."

The Baltimore Sun provides some more details:

The indictment describes a document titled "The Schurick Doctrine" and says that it was "designed to promote confusion, emotionalism, and frustration among African-American Democrats."

The indictment quotes from the document: "The first and foremost desired outcome [of the Schurick Doctrine strategy] is voter suppression."

While the criminal case progresses, Maryland Attorney General Doug Gansler is pursuing a civil suit in federal court:

Gansler alleges that the robocalls were made with the intent to suppress and intimidate voters in predominately African-American Democratic neighborhoods. The attorney general says 112,000 such calls were made on election night, and if found to be violations, each carries a $500 fine.

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DADT repeal on track but not unchallenged, need for vigilance remains

Prior to President Obama’s December 22, 2010 signing of the Don’t Ask, Don’t Tell Repeal Act, then House Majority Leader Steny Hoyer (D-MD5) had this to say about the American promise of equality for all.

Nearly six months later, Minority Leader Hoyer’s message about fundamental rights being “self-evident, but not self-executing” rings true. Even as military leaders are working hard to train the troops for repeal implementation, and reporting back success:

Repeal opponents want to disrupt the mission through the FY12 Defense Authorization bill.

  • Section 533 – Slow down repeal by adding the service chiefs to the certification process. A thoughtful process is already in place. Repeal must be certified by the President, the Defense Secretary, and the Chairman of the Joint Chiefs of Staff in order for it to go into effect, and even then there is 60-day waiting period prior to the full policy change. These Administration officials are the men tasked with setting military policy. The services chiefs will advise as appropriate, but are ultimately tasked with executing the policies set at the Administration level.
  • Section 534 – Enshrine DOMA within the military and the DOD civilian corps. DOMA is unconstitutional. The courts agree. So do President Obama and the Attorney General. With DOMA’s future, at the very least, up for review, if not wholly in doubt, it would be foolish to reaffirm it now.
  • Section 535 – Restrict the right of chaplains and other military and civilian personnel, and the use of DOD property, to perform marriage ceremonies. When DADT repeal takes effect, even if DOMA remains in place, there is no reason why these personnel and facilities shouldn’t be available to same-sex couples whose marriages are recognized at the state level. We wouldn’t force individual chaplains to perform same-sex marriage ceremonies, but we also shouldn’t restrict their ability if they wish to do so.

The Senate version of the bill is expected to be taken up by the Senate Armed Services Committee this week. Please help us make clear to the subcommittee and full committee that we want to keep repeal on track and free of harmful amendments.

Before I go, a special shout out to our friends at the Servicemembers Legal Defense Network for demonstrating that servicemembers are still waiting. We’re all still waiting. We need swift certification and effectuation of DADT repeal.

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A Supreme Court Win for John Ashcroft, a Grim Reminder for the Rest of Us

Yesterday, the Supreme Court ruled unanimously (with Justice Kagan recused) that former Attorney General John Ashcroft cannot be personally sued for alleged abuse of material-witness arrests in the days after the 9/11 attacks. In the weeks and months after 9/11, innocent people were being rounded up by the federal government with little to no evidence against them through abuse of the Material Witness Statute. However, the Justices agreed that what Ashcroft did was not in violation of "clearly established law" at the time, so he cannot be personally sued for money damages.

But that unanimity hides a deep divide on other issues. Justice Ginsburg's concurrence reminds us of the lawless nature of the Bush Administration. She asks:

what even arguably legitimate basis could there be for the harsh custodial conditions to which al-Kidd was subjected: Ostensibly held only to secure his testimony, al-Kidd was confined in three different detention centers during his 16 days' incarceration, kept in high-security cells lit 24 hours a day, strip searched and subjected to body-cavity inspections on more than one occasion, and handcuffed and shackled about his wrists, legs, and waist.

...

[His] ordeal is a grim reminder of the need to install safeguards against disrespect for human dignity, constraints that will control officialdom even in perilous times.

Americans should never forget the many ways that the Bush Administration violated basic American constitutional principles and the rule of law. After 9/11, People For the American Way Foundation led the nation in exposing and condemning the Ashcroft Justice Department's multifaceted threats to liberty.

Perhaps if the threats had been against Big Business's bottom line, today's corporate-funded Tea Partiers would have joined us in protecting the Constitution. Their silence then makes shameful their current efforts to appropriate the Constitution as uniquely theirs.

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Attorney General Disappoints on Faith-Based Issue

Question: When does a law saying "do not discriminate" really mean "discrimination is allowed"? Answer: Now, since Attorney General Holder yesterday refused to repudiate the Bush Administration’s seemingly deliberate misreading of federal law in the context of grants to faith-based organizations.

One of the gravest flaws of the Faith-Based Initiative that President Obama inherited and has since made his own is that it permits federally funded employment discrimination on the basis of religion. Numerous federal statutes creating grant programs specifically prohibit those receiving funds from engaging in employment discrimination. However, the Bush Administration’s Office of Legal Counsel (OLC) adopted a policy memo turning those provisions on their head.

According to the memo, requiring compliance with anti-discrimination laws as a condition of receiving federal funds can impose a substantial burden on the religious beliefs of faith-based grant recipients. Therefore, it reasoned, such a requirement may be impermissible under the 1993 Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening religious exercise unless that burden is the least restrictive means of furthering a compelling governmental interest. According to this harshly criticized legal memorandum, RFRA can be interpreted to let religious grantees ignore very specific nondiscrimination provisions within a federal grant program.

At a hearing before the House Oversight Committee yesterday, upon questioning by Rep. Bobby Scott, Attorney General Holder testified that the OLC memo is not being reconsidered. Even worse, when asked the Obama Administration has adopted that interpretation as its policy, Holder gave a meaningless and evasive answer. According to Congressional Quarterly (subscription required):

SCOTT: So if you're running a Head Start Program, they're running the Head Start Program they can discriminate, even though there's a statutory provision prohibiting discrimination? They can discriminate anyway?

HOLDER: What I'm saying is that in terms of -- with regard to that specific OLC opinion, we are not in the process of reconsidering it. That is not something that, as I understand ...

SCOTT: Well I'm not talking about the memo. I'm talking about the policy. Can they discriminate notwithstanding a specific statutory prohibition against discrimination; they can discriminate anyway based on that interpretation?

HOLDER: Obviously discrimination cannot occur, that is, that contravenes federal law.

Since whether an act of employment discrimination violates federal law is the focus of the debate, Holder’s response is not enlightening.

It is hard to believe that less than three years ago, candidate Barack Obama told an audience in Zanesville, Ohio that "if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them—or against the people you hire—on the basis of their religion."

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Pro-Corporate Groups Spend Millions To Save Walker’s Preferred Justice In Wisconsin

Wisconsin Supreme Court Justice David Prosser was supposed to win reelection in a walk, after winning a February primary with 55% of the vote. Prosser, a former Republican state assemblyman, faced JoAnne Kloppenburg, who previously served as the state’s assistant attorney general and came in second in the primary. But Governor Scott Walker’s brazen push to bust unions and implement an ultraconservative political agenda spurred the progressive community into action, and Walker’s popularity plummeted.

Many of the Wisconsinites who are outraged over the right-wing policies pursued by Walker and the Republican-controlled legislature, rallied to Kloppenburg’s side. Walker allies feared the potential defeat of Prosser, who called himself “a common sense complement to both the new [Walker] administration and Legislature.”

While there are just a few hundred votes separating the two candidates, guaranteeing a recount, last-minute spending by right-wing organizations helped salvage Prosser’s flagging campaign.

According to the Brennan Center for Justice of New York University, which monitors spending in judicial elections, pro-corporate groups have greatly outspent progressive organizations. The Brennan Center found that spending in the race passed the $3.5 million mark, with most of the spending benefiting Prosser.

While the Greater Wisconsin Committee ran ads against Prosser’s reelection, pro-corporate organizations such as the Wisconsin Manufacturers and Commerce (an amalgamate of the Wisconsin State Chamber of Commerce and the Wisconsin Manufacturers Association), the Club for Growth, Citizens for a Strong America, and the Tea Party Express have flooded the state with ads supporting Prosser and berating Kloppenburg.

As of Monday, the four groups which backed Prosser spent a combined $2,177,220, but the Greater Wisconsin Committee spent $1,363,040. The final spending figures have not yet been tallied.

Citizens for a Strong America, a front group for the Koch Brothers-financed Americans for Prosperity, ran an ad so erroneous that the nonpartisan group PolitiFact gave it a “pants on fire” rating. Even the far-right Family Research Council added to the smear campaign, attacking Kloppenburg, who worked as assistant attorney general since 1989, as inexperienced in advertisements on thirty-four Wisconsin radio stations.

With a recount pending, Kloppenburg’s come-from-behind campaign shows the ability of progressives in states like Wisconsin to overcome the corporate juggernaut that is able to spend almost limitless amounts of money to support its favored candidates.

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Wisconsin Republicans Clamp Down on the Right to Criticize Them

Wisconsin Republicans have escalated their assault on Democrats, liberals, unions, and anyone else who does not fall into line for their ideological agenda. This time, it is the right to criticize the Republican Party that is under attack, as the Cap Times reports:

The Wisconsin Republican Party, apparently stung by a blog post written by UW-Madison history professor William Cronon, has responded by asking the University of Wisconsin-Madison for copies of all of Cronon's office e-mails that mention prominent Republicans or public employee unions.

Cronon revealed the GOP's Freedom of Information Act request in his Scholar as Citizen blog post late Thursday evening along with a lengthy, and typically scholarly, defense.

In his inaugural blog post on March 15, Cronon, one of the UW's academic stars, had sketched the apparent influence of the American Legislative Exchange Council (ALEC), a shadow conservative policy group that works with Republican state legislators, on Gov. Scott Walker's legislative agenda. It was the first time the respected professor had used a blog format and he was, to put it mildly, surprised by the response. The blog generated more than half a million hits. For many of his readers, it was the first time they were aware of the organization and its involvement with conservative legislators around the country.

Billionaire brothers Charles and David Koch, major Walker campaign contributors, provide funding support for ALEC. ...

The Republican request, filed two days after Cronon's March 15 post appeared, asks for "Copies of all emails into and out of Prof. William Cronon's state email account from January 1, 2011 to present which reference any of the following terms: Republican, Scott Walker, recall, collective bargaining, AFSCME, WEAC, rally, union, Alberta Darling, Randy Hopper, Dan Kapanke, Rob Cowles, Scott Fitzgerald, Sheila Harsdorf, Luther Olsen, Glenn Grothman, Mary Lazich, Jeff Fitzgerald, Marty Beil, or Mary Bell."

The named individuals are the Republican governor, the Republican leaders of the state House and Senate, and the eight Republican senators targeted for recall.

Professor Cronon has written a long, must-read response to this political effort to intimidate him for daring to question the Republican Party.

In some ways, this is reminiscent of Attorney General Ken Cuccinelli's assault on academic freedom in Virginia. Academic freedom exists only in name if scholars questioning the Republican Party are bullied into not using it. In that sense, the Wisconsin assault against Professor Cronon is directly related to all the other ways that the modern-day GOP is actively undermining the infrastructure of our democracy, giving us:

  • elections where significant numbers of the GOP's opponents are prevented from voting;
  • campaigns where the GOP's opponents can't be heard over corporate millions;
  • the right to protest, but if you oppose a Republican official he may secretly plant troublemakers among your group to discredit you;
  • the right to a free press, but if a Republican who you criticize sends his goons to rough you up, the Party will not bat an eye;
  • the right to form a union that cannot collectively bargain;
  • the right to free speech, but if you displease the GOP you risk becoming the subject of phony video smears followed up by legislative attack;
  • the right to lobby, but your lobbying firm loses access to a GOP-dominated Congress if it hires Democrats.

In isolation, the incident in Wisconsin is terrible. But to see it only in isolation would be a grave mistake.

If the party officials involved with this are not condemned and banished from the party, this incident will do long-term damage. Continuing party support for those who undermine the foundations of our free society – as in the examples above – significantly lowers the bar for what departures from the principles of democracy are now acceptable.

This incident should be a rallying cry for Americans to protect the liberties and rights enshrined in the U.S. Constitution.

PFAW