Archive for the ‘Checks & Balances’ Category

a_002

WHAT HAPPENED – XBOXs were created with (at least one) mechanical fallacy that ended breaking the system without warning.  Plaintiffs (*cough* NERDS) filed a class action lawsuit in California against XBOX because of this defect.  The California Court hearing this issue denied the Plaintiff’s right to proceed with a class action lawsuit on grounds that the class and case was not suitable for class action status.  As is common in California, the plaintiff’s stipulated to a dismissal of their suit, appealed the denial of class certification and won.

WHY IS THIS BEFORE THE SUPREME COURT:  The State of California is the Chekov’s gun on this case brief, as the practice of dismissing a class action suit and appealing it subsequent to that dismissal is a procedure that is only done in California, as the Federal Rules require a different procedure in order to appeal this decision.  The issue here is whether or not the Supreme Court is down with that procedure or not.

WHAT ARE THE RAMIFICATIONS:  Allowing this procedure to pass would create two possible scenarios, one being specific to this case, and the other being more general.  First, saying that this procedure is OK would allow an unwritten, contrary rule to be written in the Rules of Federal Procedure.  Considering that the Supreme Court usually does that on their own, good money says that they are not OK with goddamn liberal Californians making their own rules.  More broadly speaking, this case could allow individual jurisdictions to make their own rules all the time, which also is probably not what the Supreme Court wants to do either.

ROOT FOR MICROSOFT IF: you want that extra class action money going toward more HALO sequels.

ROOT FOR BAKER IF:  the Rules of Civil Procedure were made to be broken.

PREDICTION:  Microsoft 9-0

Advertisements

a_002

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obama’s appointment to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

WHAT HAPPENED:  SW General lost a case before the National Labor Relations Board, and instead of appealing (you know) the merits  of the case, SW General argued that the head attorney was appointed by President Obama unlawfully under the Federal Vacancies Reform Act.

WHY IS THIS BEFORE THE SUPREME COURT:  The Federal Vacancies Reform Act was intended as a way for the President to fill agency positions when Congress was being either (1) lazy or (2) assholes.  The FVRA states that the President can bypass Congress on appointments when the new appointee is the first assistant, or when the new appointee is a senior official within that agency.  The question for this case is whether or not the second half of that clause requires that the person to serve in the position ninety days before appointments, or if the ninety day waiting period only applies to first assistants.  SW General argues that it does apply, thus blocking Obamas appoint to the NLRB, whereas the NLRB argues that it does not apply and the appointment was valid exercise of executive power.

WHAT ARE THE RAMIFICATIONS –  This case seems relevant to a much larger point about today’s government; however, this case will likely not have the effect that it could or should.  We are certainly having a moment right now where our government seems to be prioritizing grudges and power-grabs over actually doing their job and running the government.  This case is a great example of how political moves can cloud the proper and efficient organization of a government agency.  That being said, the FVRA doesn’t deal with Supreme Court justices, or executive orders, or health care, or impeachment proceedings, so all the things that you want this to resolve, it probably won’t.  The only interesting point here could be within the text of the opinion, as you can’t put it past the Court to include their own opinions within their decisions, either subtly or not-so subtly.  For example, a few months prior to the Obgefell v. Hodges decision which required universal recognition of same-sex marriage, the Supreme Court fought intensely about the due process right to get married in the case of Kerry v. Din.  The subtext of that case maybe wasn’t as clear at the time, but in hindsight, you can see an underlying subtext in the decision through the scope of something totally different.  Considering the Court is being treated like a 10 year-old at a child custody hearing, it wouldn’t be all the surprising to get some kind of temper tantrum.

ROOT FOR NLRB IF:  you hate the government right now.

ROOT FOR SW GENERAL IF:  you hated the government four months ago, but now things are pretty sweet.

PREDICTION:  SW General 5-3

balance_by_incisler

As I previously mentioned, in December, the North Carolina legislature passed a law limiting the future governors’ powers. The background to this action is that the legislature belongs to one party (with a veto-proof majority), and the governor to the other. The current governor, on his way out, signed the bill into law. Specifically, the new law strips future governors of their power to appoint a majority to the State Board of Elections. It also makes it more difficult for certain types of cases to appeal directly to the NC Supreme Court, which is controlled by the future governor’s party. Pending legislation (pdf warning) also strips the governor of his ability to name members to the boards of state universities, and reduces the number of state employees the governor appoints from 1,500 to 425. Further, the governor’s cabinet appointees become subject to approval by the State Senate.

In an interesting turn of events, a NC Superior Court judge temporarily blocked the new law with an injunction, citing McCrory v Berger (pdf warning). In that case, the legislature created an agency within the executive branch. The court held that separation of powers required that the governor, as leader of the executive branch, must have effective control of the agency. But, since the legislature selected a majority of the agency members, and it could remove members for cause, the court decided that the governor didn’t have enough control over the agency for it to respect the separation of powers required by the NC state constitution.

The current case, however, is slightly different: the election board at issue is an independent state agency (and since it’s not an executive agency, it presumably doesn’t need to be controlled by the governor), and the members are evenly selected by the governor and the legislature. My guess is that it should come out okay because of those differences, but it’s a new issue for the NC courts – which makes the injunction a smart play by the judge. I don’t expect this to be appealed to the Federal Supreme Court, because it’s squarely a state constitutional issue, but it’s nice to see courts not shy away from these very real constitutional issues just because politics are involved. Although, admittedly, state courts are much more likely to be politically active, since state judges often are heavily tied to one party or another, unlike federal judges, who tend to distance themselves from the political machinations of Washington DC. Relatively speaking, of course.

Right? Right? I mean, we know the fantastic lies they tell, but it would be crazy to just make everything a congressperson said simply on the record, and make them liable for perjury if they said something false.

Right?