It’s that season, when all of us watch, with nailbiting
expectation, to see who the winners and losers are.
No, I’m not referring to World Cup Soccer. That’s for normal
households. In the Spherical Model household, we’re watching the Supreme Court
rulings come in. (If I had a graphic arts team here at Spherical Model, I'd have justices in robes kicking around a soccer ball in a grand stadium. Please imagine that here.)
The biggies for this session (Hobby Lobby and others who don’t
want Obamacare to force them to purchase things against their religious views)
have not shown up yet. There are still a few more days.
But there are a few things that appeared so far this week.
Recess appointments--Canning v. NLRB (National Labor Relations
Board)
This was a 9-0 decision, slapping the president’s hand for
reaching into the power cookie jar. But it isn’t as strong a rebuke as it could
have been. The Constitution expects presidential appointments to be subject to
Senate approval or disapproval (advise and consent). The president doesn’t like
to submit to that—even though he has a Democrat Senate, because there are
enough Republicans that might bring up the inappropriateness of many of his
appointees. He is not the first president to misuse the recess appointment
procedure.
It’s in the law because, at the time of the founding, when
the legislative branch took a break and people returned to their home
districts, it could take weeks to call them back to reassemble. If a need came
up during their absence, it made sense to make a temporary appointment, so work
would not be held up.
It doesn’t take weeks to recall the Senate now. But the
Constitution doesn’t include reasons and intentions, so presidents have used
this clause for their own political purposes—more so as transportation becomes
less and less an issue. The SCOTUS today ruled that, while the president can
indeed appoint during breaks in session, he can’t decide that a long weekend is
a break. Even 10 days is probably too short a break. The justices fell short of
defining the length of the break, but clearly ruled that the president shouldn’t
be doing what he’s been doing.
The more conservative members of the Court held that the
rule should be when the legislature is actually not in session—probably just
during their annual August break. I’m with them. My son Political Sphere
suggests that they ought to have also added the requirement that the appointment
be urgent, couldn’t have been made in time before the legislative session
ended, or couldn’t wait until the legislative session was to meet again. And of
course such appointments ought to be approved or disapproved as soon as the
legislature meets again—rather than just letting the appointment stand. In
other words, change the expectations for Senate approval of appointments back
to what the Constitution requires. What a concept.
I heard several times today that this ruling was the 12th
(maybe 13th) time SCOTUS has ruled unanimously against Obama’s
executive power overreach.
Buffer Zones at
Abortion Clinics—McCullen v. Oakley
In this Massachusetts case, there was a rule that within a 35-foot
buffer zone, no one could enter the space near an abortion clinic except
patients, workers, and anyone with business in the vicinity. In other words, no
one could approach someone who might be going for an abortion and offer them “counseling,”
or information that might sway their behavior.
This is a free speech argument. We’re talking about public
sidewalks, which are traditionally places where demonstrations of speech are
legal. And here the restriction is on specific speech on a specific topic—to prevent
anti-abortion speech. Why that speech? Why is that targeted, but other speech
could be allowed other similarly public locations? What makes the public space
around an abortion clinic a non-free-speech zone?
The Obama administration supported censorship. The plaintiff
asked for support of free speech rights. While there could be a safety issue to
consider, the government must choose the least intrusive alternative. The Court
could see that banning all free speech in a specified area, mainly to prevent
speech on a specific issue, was not the least intrusive means. (A good discussion was on Hugh Hewitt's The Smart Guys segment Thursday--available by subscription.)
Here are a couple more of the rulings, with links to read
further:
·
EPA
Greenhouse Gas Regulation—Utility Air Regulatory Group v. Environmental
Protection Agency (read here
and here).
Meanwhile, in the Tenth Circuit Court, the state of Utah has been disallowed to define marriage.
You’ll probably read errant headlines
that the state’s ban on same-sex marriage has been found unconstitutional. That’s
not really accurate. The 3-judge panel of the 10th Circuit ruled
against the state, in a 2-1 split, based on the Windsor ruling of June 2013,
which decided that the US DOMA law was wrong to define marriage as between one
man and one woman if other entities (i.e., state governments) defined it
differently. In other words, the Supreme Court was leaving the defining of
marriages to the states. But every time it has come up since then, some court
has decided that states do not have
the right to define marriage as between one man and one woman, because it’s
unconstitutional. Hmm.
So, the courts are ruling that defining a term in a contract
cannot be done at the federal level nor at the state level. That is very
troubling. So how can governments define terms in a contract? The way the unelected
and nebulous but powerful politically correct police say they can, according to
the whims of the day—of course.
In this case, Kitchen v. Herbert, the steps may include
appeal to the 10th Circuit en
banq (the full panel of 10th Circuit Court judges). That may or
may not be tried or accepted. If it is, then that court will hear the case
first. If not, it could go to the Supreme Court as early as this coming fall. In
the meantime, the Court stayed its ruling (will not in the meantime allow
same-sex “marriages” to take place while the issue isn’t ultimately settled).
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