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Stare Decisis

Discussing Judge Vinson's ruling on the health bill, Orin Kerr writes:

If you are an originalist, [. . . i]f you’re a libertarian [Judge Vinson's ruling] is [. . .] very appealing [. . .]. But there’s a technical problem here that I want to draw out: Judge Vinson is only a District Court judge. Under the principle of vertical stare decisis, he is bound by Supreme Court precedent. See, e.g, Winslow v. F.E.R.C., 587 F.3d 1133. 1135 (D.C. Cir. 2009) (Kavanaugh, J.) (“Vertical stare decisis — both in letter and in spirit — is a critical aspect of our hierarchical Judiciary headed by ‘one supreme Court.’”) (citing U.S. Const. art. III, § 1). [. . . T]he judge has to apply the doctrine established by the Supreme Court and has to ignore the original meaning.

[. . . Y]ou have to confront the doctrinal test that the U.S. Supreme Court offered in a majority opinion just a few months ago in United States v. Comstock:

[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.

[W]hen the Supreme Court says that this is what “we look to see” when determining if a power falls within the Constitution, then that is a doctrinal test to which a trial judge is bound under the principle of stare decisis.

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The Politics of "Judicial Activism"

Atrios writes:

I'm Not Sure What Judicial Activism Is

Even when their side does "it," I still think it's a very poor term which most of the time means "rulings I don't like." There are judges who are more or less deferential to the other branches, and there are judges who are total hacks who will contradict themselves across rulings, or make absurdly stupid arguments, in order to achieve whatever political/policy ends they want to achieve, but "judicial activism" is a bad frame which suggests that it's somehow illegitimate for the judiciary to act. Call out the hacks for being what they are, but don't call them "activists."

(Emphasis supplied.) I'm sympathetic intellectually to Atrios' point. but the context of the historic use of the term "judicial activist" as a pejorative, which arose in response to the Warren Court's series of decisions on individual liberty, makes the phrase a potent political weapon for progressives attempting to hold back the attempted radical conservative judicial counterrevolution. It would be naive for progressives to discard it now. More . . .

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FL Federal Judge Rules Individual Mandate Unconstitutional, Strikes Down Health Bill

Finding the individual mandate unconstitutional and not severable from the health bill, a Florida federal judge has struck down the health bill. The Opinion (PDF):

The threshold question that must be addressed is whether activity is required before Congress can exercise its power under the Commerce Clause. [. . .] It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. [. . . T]he individual mandate regulates inactivity.

But what of the Necessary and Proper Clause? The judge has the chutzpah to cite McCulloch v. Maryland:

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Kucinich Settles Olive Pit Lawsuit

Rep. Dennis Kucinich has settled his lawsuit over biting into an olive pit in a sandwich at a federal cafteria, breaking his tooth and requiring multiple dental procedures. While the amount is confidential, he says it covers his out-of-pocket expenses.

"I feel that the defendants have responded fairly and reasonably," Kucinich said. "I don't want to have to make another dental visit for a very long time and will be making no further comment on this matter."

After filing the lawsuit, Kucinich released the following details: [More...]

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What Is Monopoly Power?

Matt Yglesias writes:

Apple doesn’t have “monopoly power” (its market share isn’t even that big) in the markets for laptops or smart phones. What Apple has is intellectual property—operating systems.

The definition of "relevant market" is crucial here. In a good comment thread, the issue is fleshed out a bit. It's complicated though. A lot of my work involves this issue so I'm not going to write about it here. I will point you to this related development from the past few years - the Bush DOJ's policy on Sherman Act Section 2 enforcement (PDF) and the Obama DOJ's withdrawal of the policy. Now talk amongst yourselves about it.

Speaking (or not, as the case may be) for me only

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Justice For Some, Again

The Fed takes care of banks:

[B]anks have never acted as if they bear responsibility for the mortgage mess. They have pursued foreclosures in violation of borrowers’ rights to due process, as revealed by the recent robo-signing scandal. And, despite having been bailed out for their mistakes, they have pursued their self-interest, not the public interest, when it comes to modifying bad loans. They have resisted reducing principal balances for troubled borrowers, for instance, because that could force them to take losses they would rather delay.

Now, despite mounting evidence of borrower mistreatment, the Federal Reserve has proposed a rule that would disable the most effective legal tool that borrowers have to fight foreclosures. [. . .] Citing concern over banks’ compliance costs, [the Fed] would require a borrower to pay off the remaining principal before the lender gives up its security interest. That would be clearly impossible for troubled borrowers. So the Fed’s proposal would benefit the creditor who violated the law rather than the borrower, paving the way for foreclosures that otherwise could be avoided.

The Fed failed to protect consumers before the financial crisis, and is failing again. [. . .]

The entire government has failed consumers and is still failing. This is not new.

Speaking for me only

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Justice For Some

Glenn Greenwald's new book shows promise of being his best one yet. The proposed title, part of which I stole for the title of this post, is With Liberty and Justice for Some: How the Law Is Used to Destroy Equality and Protect the Powerful. I suspect Glenn will, as he mostly does, concentrate on civil liberty issues but there are indications he will go further:

The book's central theme -- the legal immunity which political and financial elites have bequeathed to themselves even for egregious illegality, contrasted with the merciless system of punishment and coercion imposed on ordinary citizens -- was potently highlighted by two very recent events and necessitated substantial work to include them: (1) the mortgage/foreclosure fraud scandal and the political class's reflexive attempts to immunize the banks from the consequences of wrongdoing [. . .]

Marcy Wheeler (who with David Dayen, is doing a great job on the story), covers the latest:

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The Legal System

I wonder how prevalent this view, expressed by Matt Yglesias, is:

With President Barack Obama seeking to move an ambitious legislative agenda through the molasses-like United States Senate,* it was fairly easy for Mitch McConnell and his colleagues to obstruct a given person’s nomination simply by threatening to drag things out. After all, Harry Reid and the White House had better things to do with their pressure floor time than quibble about district court nominees.

(Emphasis supplied.) Lawyers almost certainly overestimate the importance of the judiciary in our political system, but it seems to me non-lawyers underestimate its importance. Justice AND policy are often decided at the district court level, and of course, a lot of individual justice is served, or not, at that level. It's a lot more important than folks like Yglesias think.

Speaking for me only

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"Bonfire of the Vanities" Judge Burton Roberts Dies

Judge Burton Roberts has died. He was 88. The retired Bronx Supreme Court Judge was the inspiration for Myron Kovitsky, the judge in Tom Wolfe's Bonfire of the Vanities.

In “The Bonfire of the Vanities,” one of the only admirable figures is Myron Kovitsky, a Bronx judge who refuses to be influenced by the press, the public or publicity-seeking prosecutors. Mr. Wolfe modeled the character after Judge Roberts and dedicated the book to him and one of his former assistants, Edward W. Hayes. In the 1990 film version, the judge’s name was changed to Leonard White, and he was portrayed by Morgan Freeman.

Judge Roberts, a longtime prosecutor before becoming a judge, was flamboyant but always true to his strongly held principles:

[He] denigrated capital punishment, mandatory sentencing laws, and public officials who criticized rulings in ways he felt were politically motivated intrusions upon the independence of the judiciary.


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Judicial Activism For Me, But Not For Thee

Via OpenLeft, a conservative complaint about Ted Olson:

I cannot trust the legal judgment of a fellow who claims to be conservative and yet who clearly believes the Constitution should be used by the Judiciary to invalidate the will of the people [. . .]

Meanwhile, back at extreme conservative headquarters, the Wingnut AGs filed their opposition (PDF) to the federal government's motion to dismiss their complaint asking the judiciary to overturn a law enacted by the duly elected Congress and signed by the duly elected President, the health bill and its individual mandate.

Respect for "the will of the people" apparently only matters some of the time. In other words, judicial activism for me but not for thee.

Speaking for me only

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How A State Can Create Standing To Challenge A Federal Law: Pass A Law In Conflict

The absurd ruling (PDF) by Virginia federal judge Henry Hudson denying the United States' motion to dismiss the complaint filed by Virginia AG Ken Cucinelli attacking the recently enacted health care bill (specifically the individual mandate) is most notable for its reasoning for why Virginia has standing to challenge the law. Here is how Ilya Somin, who is sympathetic to the ruling, puts it:

Hudson rejected the federal government’s claim that Virginia did not have standing to challenge the mandate. Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing [. . .]

If this ruling is eventually upheld (it won't be imo, if the district court decides in Virginia's favor), here is a great new vehicle for challenging federal actions - states could pass laws that expressly conflict with federal policies they don't like and then take the United States to court and challenge the constitutionality of the federal actions. See Jack Balkin. Yes, it's stupid. But it is rather useful, for it really places in stark relief what conservatives are about - reversing by judicial activism settled law regarding the power of the federal government. Yes, they want to refight not only the New Deal but the Civil War as well. A smart and effective Democratic Party would make hay from this.

Speaking for me only

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The Glaring And Dangerous Error In The AZ SB 1070 Decision

At page 27 of the decision (PDF), Judge Bolton makes a grievous error that needs to be appealed. It leaves a huge loophole for mischief:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

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Injunction Of AZ SB 1070 Based On Preemption

From the decision (PDF):

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. [. . .T]he United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

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Parts of AZ SB 1070 Enjoined


A federal judge has granted an injunction blocking enforcement of parts of a controversial immigration law in Arizona that is scheduled to go into effect Thursday.


The parts of the law that the judge blocked included the sections that called for officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times. Judge Bolton put those sections on hold until the issues are resolved by the courts.

When I get the decision (PDF (site is swamped), I'll write a separate analysis. As regular readers know, I thought the preemption argument was a slam dunk. I wonder if the judge agreed.

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Holder Supersedes Ashcroft Sentencing Directive

Via Sentencing Law and Policy, Attorney General Eric Holder has issued a new directive to prosecutors on federal sentencing. You can read it here.

Ashcroft's sentencing memo, "Department Policy Concerning Charging Criminal Offenses, Disposition of Charges, and Sentencings" directed prosecutors to charge the most serious provable offense. I posted it here back in 2003. Former Deputy AG James Comey's January 28, 2005 sentencing directive is here. Professor Berman says of today's Holder memo:

Distilled to its essence, it seems that instead of a general policy that federal prosecutors "must" charge and pursue the most serious offense and must advocate a within-guideline sentence, this new Holder memo now asserts that federal prosecutors "ordinarily should" charge and pursue the most serious offense and "should generally" continue to advocate a within-guideline sentence. In other words, in appears that this new Holder memo is a fairly subtle change in policy, but that subtle change may still prove to be very consequential in practice.

I think the memo is a welcome change. [More....]

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