Archive for the ‘Federalism’ Category

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

Advertisements

sq_lethal_injection_room

The Delaware Supreme Court held that, in light of the Federal Supreme Court’s holding in Hurst v. Florida, Delaware’s death penalty is in violation of the Federal Constitution because it is imposed by a judge, and not by a jury, as Hurst requires. The last execution in Delaware was in 2012, by lethal injection, another contentious death penalty issue, but the 14 guys currently on the Delaware death row are probably breathing a sigh of relief, at least until the state legislature changes the procedure, a thing that may or may not happen.

It’s also interesting that the DE Court recognizes the difficulty of the task:

In this case, we are asked to address important questions regarding the constitutionality of our state‘s death penalty statute. The Superior Court believed that Hurst reflected an evolution of the law that raised serious questions about the continuing validity of Delaware‘s death penalty statute. Specifically, Hurst prompted the question of whether our death penalty statute sufficiently respects a defendant‘s Sixth Amendment right to trial by jury.

Because answering the certified questions requires us to interpret not simply the Sixth Amendment itself, but the complex body of case law interpreting it, we have a diversity of views on exactly why the answers to the questions are what we have found them to be. But that diversity of views is outweighed by the majority‘s collective view that Delaware‘s current death penalty statute violates the Sixth Amendment role of the jury as set forth in Hurst. We also have a shared belief that the importance of the subject to our state and our fellow citizens, reflected in the excellent briefs and arguments of the parties, makes it useful for all the Justices to bring our various perspectives to bear on these difficult questions.

Full opinion of Rauf v. Delaware in this link (pdf warning).

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Tax & Spend

Posted: July 3, 2016 by Nazim in Federalism, Money Money!, Taxation

A nice, unbiased breakdown of the federal budget, courtesy of nationalpriorities.org (more detail in link).

budget-graphic

WHAT HAPPENED:  Two years ago, the Supreme Court ruled in Hobby Lobby v. Burwell that the contraceptive mandate could not compel religious institutions to provide birth control to their employees.  “Fine” said the government, “You don’t have to provide birth control, and instead you just have to fill out these two forms and we’ll take care of it for you”.

WHY IS THIS BEFORE THE SUPREME COURT:  “NO!” replied the host of religious institutions who were not satiated by the Supreme Court’s favorable ruling in Hobby Lobby.  “Two forms, as nominal as it may seem, constitutes an affirmative act in favor of providing birth control and that is a sin.”  And that is where we stand now, in that the Court must determine whether two forms is an acceptable burden to place on a company that is denying medical care to their employees, or if two forms is a condemnation to hell-fire and brimstone.

WHAT IS THE RULING:  Thankfully, this case is not yet decided.

RAMIFICATIONS:  Everything and nothing.  Everything if the idea that a hypothetical employee of the Catholic Church cannot get birth control serves as the opening of Pandora’s Box toward overruling Roe v. Wade and diminishing Women’s Rights.  Nothing if you are neither person described in the above referenced sentence.

ROOT FOR ZUBIK IF:  To you, the idea of hell isn’t ridiculous.

ROOT FOR BURWELL IF:  You would like to end more sequels to this never-ending horror movie of a Supreme Court case, which by the way, was what I was going for with the picture above of Dennis Hopper fighting Leatherface in Texas Chainsaw Massacre 2.

WHAT HAPPENED:  Defendant was arrested and convicted pursuant to the Hobbs Act, which is a federal statute that gives federal penalties to persons who engage in robbery or extortion that affect interstate commerce.  Defendant’s actions which lead to this arrest was robbing local drug dealers for nominal amounts of money (relatively speaking)

WHY IS THIS BEFORE THE SUPREME COURT:  The Hobbs Act represents an expansion of Federal Jurisdiction into crime that is more commonly classified at the State level.  At the State level, this would likely just be common-law robbery, which is no easy-breezy crime, but still does not pack the same sentencing power and punch as the Hobbs Act.  The question here is how much does the Government need to prove that this crime affected interstate commerce.  In this case, the Government provided a nominal amount of evidence connecting this to interstate of commerce and the Court has to determine if that evidence warrants federal charges here.Previous cases have held that the drug trade is inherently within interstate commerce, but that individual holding has not been applied in situations like this.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS:  This case speaks directly to the expansion of the federal government and how our society chooses to punish drug crimes.  On one level, increased federal expansion of drug crimes could hypothetically allow greater change at the federal level, but there’s no saying that change could be for the better.  More likely than not, a win for the government in this case will allow federal courts to take greater action over drug crimes.

ROOT FOR TAYLOR IF:  You wish to rebel against your omnipresent federal government overlords.  Also, you are a fan or author of THE WIRE fan-fiction.

ROOT FOR U.S. IF:  The recent passing of Nancy Regan has inspired you to double down on the War on Drugs.

WHAT HAPPENED? Texas passed a law that raised standards on facilities performing abortions.  Provisions included having a physician who had attending privileges at a hospital within 30 miles and requiring that clinics have the same standards as ambulatory surgical centers.  In response to these requirements, most of the abortion clinics in Texas closed down.

WHY IS THIS BEFORE THE SUPREME COURT?  The Supreme Court has held that any law that puts an “undue burden” on a women’s right to choose violates the 5th Amendment.  This law, which could be argued is intended to increase the standards for abortion clinics, creates an undue burden not on the face of the law, but in the effect that the law has on women in Texas.

WHAT IS THE RULING?  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS?  The ramifications in both directions are fairly significant.  If the Abortion Clinics win, it adds an extra wrinkle to the “undue burden” test, that allows the Court to consider the effect of the law instead of just its intent.  If Texas wins, state government seeking sneaky ways to restrict abortion rights have the roadmap to doing so.

ROOT FOR WHOLE WOMEN’S HEALTH IF:  You a pro-choice advocate who doesn’t trust the government to follow directions on abortion, and/or admit defeat.

ROOT FOR TEXAS IF:  You are a pro-life advocate living in the middle of no where.

WHAT HAPPENED:  In 2014 and 2015, President Obama passed two “executive orders” which pertained to immigration, the DACA and the DAPA.  In the interests of brevity, those two orders granted deferred action to two general classes of illegal immigrants, (1) people who arrived in the U.S. under the age of 16 and were now over 30, and (2)  parents of natural born citizens who never obtained their own citizenship.  These orders instructed the government against deporting those citizens, and instead allowing them to stay in the U.S., even though they would not be granted citizenship rights.

WHY IS THIS BEFORE THE SUPREME COURT:  Immigration issues are primarily Congress’ jurisdiction, as the Legislature has primary authority to create policy and regulations regarding the status of illegal immigrants.  Therefore, opponents of these actions claim the President has exceeded his authority to act.  On the other hand, the agency that performs these actions is under the President’s control and the President is allows to make edicts for those agencies to follow.  Therefore, the issue, in part, comes down to whether or not the President’s executive orders are so sweeping that they require greater action, of if the executive orders are within his ability to control lower agencies.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  This case could determine the occupancy status of hundreds of thousands of people who are currently living in America, but do not have citizenship.  These people likely have no where else to go if they are removed from the country, or could be separated from their children if deported.  If the orders are upheld, this could allow the government to have a better handle on undocumented aliens, as people would be more likely to come participate in registration if they were not concerned about deportation.  On the other hand, these orders only stabilize the situation and do not provide a real solution to the concern citizenship and illegal immigrants.

ROOT FOR U.S.:  If you are OK with expanding Presidential Power to resolve a situation temporarily, and probably until a Republican is voted into office.  You are also probably an advocate for the legalization of marijuana.

ROOT FOR TEXAS:  If you hate President Obama, Obamacare, and any other Obama-related terms.  You are also probably someone who likes it when people follow the Constitution, at least when it comes to this situation.

WHAT HAPPENED:  Voters in Texas argue that their votes do not count as much as the votes of other Texas citizens who live in different districts.  The principal argument is that the method of determining districts, which counts total population instead of eligible voters, is unconstitutional.  The voters in this particular case argue that counting eligible voters is a more Constitutional way to determine districts.

WHY IS THIS BEFORE THE SUPREME COURT:  Previous cases have dealt with this issue, and while a test has been developed, it is generally recognized (or at least it should be) that voting districts are never going to perfect.  So the Court applies equal protection to these claims but has generally held that voting districts that are close enough and that are not created on the basis of discrimination are usually fine.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  If it is held that using total population violates the equal protection clause, then many states will have to go back to the drawing board to determine how to create and balance districts.  That could cause greater indecision on this topic, as there is no guarantee that calculating eligible voters will resolve the problem completely.  At very least, this would likely give States greater latitude to create their own voting districts, which can be good or bad depending on how you feel about certain States.

ROOT FOR EVENWELL IF: The principal of Constitutionality means more than the practical effectiveness of the status quo.

ROOT FOR ABBOTT IF: You’re the kind of person that is OK with things not being perfect as long as they are not fundamentally corrupt or broken.

WHAT HAPPENED:  MHN hired the plaintiffs in this action to perform services pursuant to an employment contract.  At the bottom of the contract contained an arbitration clause, which required that any dispute by the plaintiffs be brought in a separate venue that presumably favors MHN.  Plaintiffs had claims pertaining to the Fair Labor Standards Act and believed that the requirement of arbitration was unfair due to the location of the arbitration clause and their inability to negotiate for that right.  The California appellate courts agreed with plaintiffs and held that the employment contract was unconscionable.

WHY IS THIS BEFORE THE SUPREME COURT:  California has a special statute which codifies the common law and negates statutes that are unconscionable, which was the grounds of this decision.  MHN argues that (1) an arbitration clause on its own is not unconscionable, and (2)  the California law is preempted by the Federal Arbitration Act which holds that arbitration clauses are enforceable.

WHAT IS THE RULING:  This case is not yet decided.

WHAT ARE THE RAMIFICATIONS OF THIS DECISION:  If arbitration clauses of this kind are held to be unconscionable, it could green-light other decisions that would affect employment contracts, customer service contracts, and other areas where arbitration clauses are included within big contracts to favor the party drafting the contract.  Each state would have to make that decision, but it could give individual states more power to control these disputes.

ROOT FOR MHN IF: You are the kind of person who reads the iTunes service agreement every time that it updates.

ROOT FOR ZABOROWSKI IF:  You’ve stopped reading already because there were too many words.