March 27, 2017

June 25, 2012

Supreme Court to Announce Healthcare Decisions This Thursday

This morning, the U.S. Supreme Court announced a decision in three of the cases pending before it. It summarily reversed (i.e., without hearing arguments or having additional briefs), by a vote of 5-4, the Montana Supreme Court’s decision refusing to apply the U.S. Court’s previous holding in Citizens United v. Federal Elections Commission. Here is the decision announced today, in its entirety:


A Montana state law provides that a “corporation may not make . . . an expenditure in connection with a candi- date or a political committee that supports or opposes a candidate or a political party.” Mont. Code Ann. §13– 35–227(1) (2011). The Montana Supreme Court rejected petitioners’ claim that this statute violates the First Amendment. 2011 MT 328, 363 Mont. 220, 271 P. 3d 1. In Citizens United v. Federal Election Commission, this Court struck down a similar federal law, holding that “political speech does not lose First Amendment protection simply because its source is a corporation.” 558 U. S. ___, ___ (2010) (slip op., at 26) (internal quotation marks omitted). The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U. S. Const., Art. VI, cl. 2. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case. The petition for certiorari is granted. The judgment of the Supreme Court of Montana is reversed.

It is so ordered.

The liberal justices (Ginsburg, Breyer, Sotomayor and Kagan) dissented. There was no point in granting certiorari and putting the case down for oral argument, because the majority (the five justices joining the per curiam opinion above) were not going to reconsider their holding in Citizens United.

In another 5-4 ruling, the Supreme Court held that the Eighth Amendment’s provision against cruel and unusual punishments precludes sentencing a juvenile (fourteen years old) to life in prison without the possibility of parole. In this case, Justice Kennedy joined the four liberals to make a majority; Justice Kagan authored the opinion. Chief Justice Roberts, and Justices Alito and Thomas each filed dissenting opinions; Justice Scalia joined in all three dissents.

The third decision announced today was in the Arizona immigration law case. Justice Kagan recused herself, since she was in the Solicitor General’s office at the time it challenged Arizona’s statute which mandated police officers to check the immigration status of persons they stopped, and which made it a misdemeanor for undocumented aliens to fail to register as required by federal law, or to seek or accept work in the State, and also allowed police to arrest any person without a warrant for any offense for which they might be deportable.

The vote was 5-3 (with the Chief Justice joining Justices Kennedy, Breyer, Ginsburg and Soytomayor) to affirm the Ninth Circuit’s ruling that all of the latter three provisions of the statute had been pre-empted by the federal statutory scheme. They held that the provision requiring officers to check immigration status upon arrest could possibly be interpreted narrowly in a way so as to survive pre-emption, but that the way in which it was to be interpreted and applied could not be determined at this preliminary stage. So they reversed the Ninth Circuit’s injunction against that part of the statute, and remanded the case for further proceedings (which include more challenges to Arizona’s law).

Justice Scalia dissented from the parts of the opinion finding pre-emption, and said he would vote to uphold the entire law. Justices Thomas agreed with Justice Scalia, but on other grounds. Justice Alito agreed with the other two dissenters, but also agreed with the majority as to making failure to register a state misdemeanor. It is Justice Scalia’s dissent, as usual, which states the issue most powerfully:

The United States is an indivisible “Union of sovereign States.”  Hinderlider v.  La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938).  Today’s opinion, ap­proving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result.  I dissent.

Justice Scalia goes on to score point after point against the majority’s inisipid endorsement of federalism, while allowing Congress to override the sovereign powers which a State brings to its union with the other States. He points out that an 1837 decision (which the majority ignores) allowed New York to screen all passengers arriving on ships, and nothing was said then about the federal government preempting state sovereignty. He also takes a good whack at the government’s ridiculous argument in its brief:

The brief for the Government in this case asserted that “the Executive Branch’s ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely.”  Brief for United States 21. Of course there is no reason why the Federal Executive’s need to allocate its scarce enforcement resources should disable Arizona from devoting its re­sources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift….
Must Arizona’s ability to protect its borders yield to thereality that Congress has provided inadequate funding for federal enforcement—or, even worse, to the Executive’s unwise targeting of that funding? 

But he’s just getting started. Next on his target list: the Obama administration’s latest pronouncement that it will bypass Congress altogether to defer deportation proceedings against any undocumented aliens who came here before they were 16, who have not committed any serious crime, who have either a high school diploma, or are in school, or served in the armed forces, and who are not over age 30:

The husbanding of scarce enforcement resources can hardly be the justification for this ... The President said at a news conference that the new program is “the right thing to do” in light of Congress’s failure to pass the Administra­tion’s proposed revision of the Immigration Act [citation omitted]. Perhaps it is, though Arizona may not think so.  But to say, as the Court does, that Arizona contradicts federal law by enforc­ing applications of the Immigration Act that the President declines to enforce boggles the mind…. 

A Federal Govern­ment that does not want to enforce the immigration laws as written, and leaves the States’ borders unprotected against immigrants whom those laws would exclude.  So the issue is a stark one.  Are the sovereign States at the mercy of the Federal Executive’s refusal to enforce the Nation’s immigration laws?

Justice Scalia reasonably asks: “Would the States conceivably have entered into the Union if the Constitution itself contained the Court’s holding?  Today’s judgment surely fails that test.” His concluding two paragraphs are worth quoting in full, because they show that he is a justice who is not just sitting in an ivory tower:

As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from en­forcement, and will be able to compete openly with Ari­zona citizens for employment.

Arizona has moved to protect its sovereignty—not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.

Perhaps no case this term has served to point up the differences between the Court’s liberal and conservative justices as this one from Arizona—and to show as well the all-too-decisive role which that divide generates for Justice Kennedy. With Justice Kagan having recused herself, that left only eight justices to rule on the case. Had Chief Justice Roberts not joined the four who were prepared to rule against the Arizona statute (which Justice Kennedy had already decided to do, since the Chief Justice assigned him to write the majority opinion), the result would have been a 4-4 decision, and the Ninth Circuit’s egregious ruling would have been affirmed in its entirety. By joining to make a majority, therefore, Chief Justice Roberts at least managed to preserve Arizona law enforcement’s right to check undocumented aliens’ status whenever they make a stop. (But even that right, as the Justice Kennedy spells out, must be narrowly construed in order to avoid federal preemption. Some days, you just have to take what you can get.)

The court granted certiorari in ten new cases. You may read more about these chosen cases at the SCOTUS blog.

The Court also denied review in the Mount Soledad cross case. However, Justice Alito filed an opinion concurring in the denial, and explained that the case was still in a preliminary stage (the Court of Appeals had remanded the case to the district court to fashion a remedy which might allow the cross to remain on its site). Thus, the Supreme Court could still take up the case after there is a final judgment with regard to whether the Memorial Cross can remain on government land, without violating the Establishment Clause. Said Justice Alito:

This Court’s Establishment Clause jurisprudence is undoubtedly in need of clarity, see Utah Highway Patrol Assn. v. American Atheists, Inc., 565 U. S. __, __ (2011) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 17), and the constitutionality of the Mount Soledad Veterans Memorial is a question of substantial importance….

Nevertheless, as we saw in the two church property cases last week, the Court just does not seem interested in fixing up the mess it has made of the Establishment Clause. Meanwhile, it finds plenty of time to consider the correctness of the EPA’s stance on channeling storm water runoff from Forest Service roads in national forests (sigh). When, O Lord, when?

After it was done announcing its orders and decisions today, the Chief Justice stated that the Court would reconvene on Thursday to release the remainder of the decisions for this term. In other words, expect a decision on the Obamacare cases this next Thursday, shortly after ten o’clock a.m.

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No sooner were those words above—“Some days, you just have to take what you can get”—written than I learned of an “unofficial announcement” (meaning no official will go on the record yet) to the effect that the Obama administration is suspending all cooperation with Arizona law enforcement in regard to illegal immigration. Not only that, but they say that any increased level of inquiries from Arizona will not be dealt with, because they have their “own priorities”! (Those obviously do not include the safety of Arizona citizens.)

This is lawlessness, sheer lawlessness, declared in a fit of pique by President Obama. (He must be behind this; administration officials would not dare to make up such a policy without his approval.) He shows by this, almost more than by anything else he has done to date, his unfitness to serve this country as its president.

The problem is that impeachment channels are blocked, due to the Democratic majority in the Senate. And a lawsuit to enforce the Constitutional guarantee against invasion and domestic violence (Art. IV, Sec. 4) would not only be a long shot, but it would take too long, as well. Nevertheless, the House should immediately bring articles of impeachment against the President, Attorney General Holder, and Secretary Napolitano, if only to publicize their petty irresponsibility and scofflaw attitude, and hopefully make it impossible for Obama to be reelected.

This does not bode well for the Supreme Court’s announcement of its Obamacare decision next Thursday, either. Like it or not—we may soon all be caught up in turbulent forces that will take our country into uncharted territory.

[1] Posted by A. S. Haley on 6-25-2012 at 05:03 PM · [top]

Allan, the news in your comment #1 is truly awful.  I’ve made initial contact with Rep. Noem (SD only has one in the House) and Sen. Thune.  From what you describe, it is a shot in the dark.  But I hope others will make an effort as well.

[2] Posted by Timothy Fountain on 6-25-2012 at 07:05 PM · [top]

1, I never would have thought it possible, but this administration is more dangerous and evil than that of Nixon.  Obama and the Democratic party have made systematic lawlessness government policy and are establishing a federal government operation without ligitimate consent of the governed that we have not seen since the days of the Revolution and King George the III.

[3] Posted by Br. Michael on 6-26-2012 at 05:45 AM · [top]

[4] Posted by Br. Michael on 6-26-2012 at 05:51 AM · [top]

And for those contemplating sitting on their hands in November because Romney does not pass your conservative “sniff” test, I urge you to swallow your Pride and vote; if not “for” Romney, then please vote “against” Obama and the trajectory that surely takes us into the uncharted territory that Mr. Haley talks about in post #1.

[5] Posted by Capt. Father Warren on 6-26-2012 at 07:24 AM · [top]

The problem is that Romney is little different from Obama and certainly not one to unravel the evil Obama has done.  The Republican party only wants to unravel the Republic in a different direction.

The problem is systemic and Obama is only a product, or symptom, of the system.  Look at the SCt which has now said that the refusal of the Executive to enforce the law is a legitimate policy decision!  And the state of Arizona has to accept foreign invasion of its soil because it’s the policy of the Federal Government to ignore the law which says otherwise and allow that invasion!  So now the Executive branch is free to pick and choose which laws it will enforce, obey and ignore.  We have created executive agency’s that have in dependent funding apart from Congressional appropriations.  Banana republic dictators do this.  And still the Republican House does absolutely nothing.

I fear the Federal Government is totally corrupt and beyond the law.

[6] Posted by Br. Michael on 6-26-2012 at 09:06 AM · [top]

I fear the Federal Government is totally corrupt and beyond the law

No argument there

Romney is little different from Obama

Nothing could be further from the truth.  For example, Mr. Obama’s whole life is a fiction [or, at the account of it is]

Obama did not grow up in this country.  Obama has grown up with marxist ideology, that is all he has known.

Obama has never had a job that created anything, including wealth.

I agree that Romney is not the conservative I wish he were.  But not only is the Government corrupt, the media is corrupt, people’s perceptions of the proper relationship to and with Government is corrupt.  Thus Romney may be the only person who could get elected [no apologies to Ron Paul fans].

And Romney is not ideologically bent on destroying the country.  He has made dumb decisions, but he has also made a large number of very good decisions.

Can Romney singlehandedly fix everything?  Of course not.  Really that is our job.  But we need time and that is what you get with a Romney vote.  Time.  What we do with the time is on our watch.

With Mr. Obama, you know darn well the time is up.  Good Lord, look what he is willing to do in a first term.

[7] Posted by Capt. Father Warren on 6-26-2012 at 09:47 AM · [top]


“And Romney is not ideologically bent on destroying the country. “

That’s why I will be voting for him.

“Can Romney singlehandedly fix everything?  Of course not.  Really that is our job.”

How? Why do people like Romney always float to the top? I was contributing to Bachmann and realized for the first time that perhaps the fix is in. Only people like Obama or Romney can bubble up to the top. And if that is the case how can we fix anything at all?

“With Mr. Obama, you know darn well the time is up.”
Does he I wonder?

[8] Posted by SpongJohn SquarePantheist on 6-26-2012 at 12:29 PM · [top]

Compounding his high crimes and misdemeanors, President Obama has now caused his Justice Department to open a special hotline for Arizona immigration matters.

But is this a hotline for Arizona law enforcement officials to get quick response on the queries as to the status of illegal immigrants? No, it is the exact opposite: it has been established so that fifth-column co-conspirators in Arizona can report Arizona local police to the Justice Department if they stop or arrest undocumented aliens. It is aimed directly at, for example, Sheriff Joe Arpaio and his staff’s enforcement efforts to control the flow of aliens across the border and through Pima County into his county (Maricopa).

This is Obama’s personal retaliation for Sheriff Arpaio’s questioning the authenticity of Obama’s birth certificate. Maybe to have done so was foolish and publicity-seeking; but what cannot be ignored is how Obama is willing to put the entire State of Arizona at risk just to exact personal revenge. His announcement that the Federal Government has suspended all immigration cooperation with Arizona authorities is an open invitation to Mexican drug smugglers to invade Arizona without any consequences.

This is simply breathtaking in its arrogance and hubris. It is as though President Obama has declared war on Arizona, its governor, its law enforcement officials and its citizens. He is actively encouraging the invasion of the State by smugglers and criminals!

The sooner the House brings impeachment articles against him, the better. This maelstrom will get much worse before it gets better, and cannot end well for our country.

[9] Posted by A. S. Haley on 6-26-2012 at 12:47 PM · [top]

What arrogance and hubris is right!  Sigh, this is absolutely wrong and stomach turning. I don’t think any President has ever acted with this sort of total arrogance and disregard for the law.  I certainly hope the house brings impeachment articles.

[10] Posted by SC blu cat lady on 6-26-2012 at 12:52 PM · [top]

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