Thursday, June 26, 2014

Supreme Court Sampler

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).

·         Cell phone searches require warrant—Riley v. California (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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