A great day for foes of Obamacare

The Court of Appeals for the D. C. Circuit has issued a ruling in the case of Halbig v. Sebelius, which says that the subsidies in the Affordable Care Act (a. k. a. Obamacare) can only apply in states that have created their own exchanges, a clear interpretation of the plain language of the Act, which makes total sense. Meanwhile, the 4th Circuit, in the case of King v. Burwell, has ruled the opposite way. When two appeals courts have issued rulings so sharply in conflict, this guarantees that the Supreme Court will get to settle this. If Halbig is sustained by the Supreme Court, many other parts of the Act will fail to apply in all those states which use the federal exchange. So this could send Obamacare crashing down.

It's a case of bad drafting, because the Congress and President Obama were in such a hurry to force this down the throats of the American people. If they had been willing to work things out, and not dismiss the Republicans' efforts to change the plan, perhaps a clearer bill would have passed, but it might not have met Obama's demand to give health care that covers certain things to everyone whether they want it or not. Of course, that would have been a better bill, though Obama would not have liked it as much. But now he may be left with such a mess that the Act will have to be repealed and the government will start over. And that is good news.

The Virginia gay-marriage decision

Judge Arenda L. Wright Allen issued an opinion voiding Virginia's ban on gay marriage. And while I approve of the decision, I wonder how ignorant a judge can be of our Constitution, as in her decision she stated that “Our Constitution declares that ‘all men’ are created equal.” Surely it would be incumbent on a Federal judge to know that those words are nowhere to be found in the Constitution, but come from the Declaration of Independence, a document written by a prominent Virginian, Thomas Jefferson.

In fact, Judge Allen issued a revision of her opinion correcting this mistake afterward, but only after the error was pointed out to her by commentators. The basic idea of the opinion is right, of course. And it's fitting that the decision be made in Virginia, the state whose ban on interracial marriage was overridden by the Supreme Court in the Loving v. Virginia case. And in fact, Judge Allen began her decision with a quote from Mildred Loving, the wife in the marriage that was upheld in Loving v. Virginia. This, of course, is not a Supreme Court decision, but hopefully it will lead to one.

So, I view the decision favorably, but it gives me great pause that the judge that issued it could make such an egregious error as to the contents of our Constitution, which governs our laws.

The right to marry advances

Six days ago, a Federal court forced the state of Utah to legalize same-sex marriage, a day after another court decidid the same issue for New Mexico. There are now eighteen states, more than a third of the fifty total, with legal same-sex marriage.

Utah is a major surprise. It is a very conservative state, heavily Mormon, and the Mormon church has strongly opposed the right to marry for same-sex couples. A poll in 2011 found Utah citizens strongly opposed to same-sex marriage. If a judge can legalize same-sex marriage in Utah, it may well be the case that nationwide recognition of same-sex marriage will follow sooner than I would have thought.

The division among the people will still persist, and this may well become as divisive an issue as abortion has become since Roe v. Wade. Yet there is really less reason for that. In the case of Roe, I can really understand some people's conviction that a fetus is a person and abortion is murder — I can understand it, though I think they are totally wrong! But I do not understand how allowing John and Joe (or Jane and Joan) to marry affects anyone else's marriage. No clergyman is forced to perform a same-sex marriage, any more than a rabbi who will not perform an interreligious one is forced to, and if a florist or a baker is made to provide his product for use at such a marriage, he is not being called to recognize such a marriage as a marriage,: he is only selling a bouquet or a cake to some people having a party. I can't see how his religious freedom is being impacted, as some conservative columnists have intimated.

But things are moving faster than 'd expected!

New Mexico and gay marriage

In most of the country, the question of same-sex marriage is coming up state by state. Thirteen states have legalized it; many of the remaining ones have tried to ban it, but cases like the decisions by Federal Judge Timothy Black (affecting only Ohio, so far) seem to indicate that even those states that will not perform same-sex marriages will have to recognize them when performed in the states that will. But in New Mexico, things are taking a county-by-county path. New Mexico has no state law that either permits or prohibits same-sex marriage. So some counties have recently begun issuing licenses for same-sex marriages, whil others have refused. And so in New Mexico, it depends on what county you live in.

However, this is about to change. The New Mexico Supreme Court has been asked to rule, so when it decides, this should decide it statewide.

An Ohio First Amendment case that deserves attention

The Wall Street Journal recently posted, on its Website, a column by Bradley A. Smith of Columbus, Ohio, entitled “The Supreme Court and Ed Corsi's Life of Political Crime — How one Ohio man's blog on politics got him in trouble with campaign-finance law.” This is probably the next big First Amendment issue that will be decided by the Supreme Court, so we need to follow it. Here is the article:

In the winter of 2008, Ed Corsi decided that he was tired of stewing about the politics in his home of Geauga County, Ohio, and the country at large. He started a website, put Thomas Jefferson's quote, “The price of freedom… constant vigilance” at the top, dubbed the site “Geauga Constitutional Council,” and set about blogging his thoughts on local and national politics. So began his life of political crime.

Over the next two years, Mr. Corsi and a few friends would sometimes gather to talk politics. He occasionally sponsored meetings featuring speakers (not political candidates) on public policy issues (not elections), and charged a nominal fee for seating to offset his costs. He and two friends passed out political pamphlets they made at the Geauga County Fair.

Mr. Corsi spent $40 a month to maintain his website, and perhaps a couple [of] hundred dollars a year in other expenses. According to the state of Ohio, however, these activities are illegal under campaign-finance laws[,] because Mr. Corsi did not first register with the state, report to the state on his activities, and subject himself to the regulations governing the operation of a state political action committee.

When he was summoned to a hearing before the Ohio Elections Commission in April 2011, Mr. Corsi asked, “Do I have to hire a lawyer to [do] these things?” Commission Chairman Bryan Felmet replied, “Yeah, I guess so. I think that it's very complicated without going to those lengths.” The commission ordered Mr. Corsi to register and report his activities to the state.

When the Supreme Court reconvenes in October, the big campaign-finance case will be McCutcheon v. Federal Election Commission, which nervous censors have dubbed “the next Citizens United.” McCutcheon deals with the ability of affluent Americans to contribute to political parties and candidates. Never mind that the candidates and causes these people support represent the views of millions of citizens. “Reformers” argue, and many Americans seem to agree, that “big money” in politics must be regulated.

It is inconceivable, however, that America's founders thought the First Amendment would allow the government to routinely require citizens to report their political activity, and be subjected to such complex regulations. They wanted to prevent government from doing precisely this sort of thing. Yet Mr. Corsi lost in state court. Now he waits to see if the Supreme Court will agree to hear his case.

The “big money” in politics can afford the accountants, consultants and lawyers needed to cope with campaign- finance law. The burdens frequently fall more heavily on grass-roots politics—the very thing we ought to be encouraging. There also is abundant anecdotal evidence that the main result, if not the purpose, of campaign-finance laws is to allow political insiders and government officials to harass grass-roots activists. The IRS targeting scandals are merely the most prominent example of the way these laws are used by those in power to harass their opposition.

On his blog, Mr. Corsi was critical of Ed Ryder, the chairman of the Geauga County Republican Party and a member of the county Board of Elections, and of various officials and candidates supported by Mr. Ryder. The initial complaint against Mr. Corsi was filed by Mr. Ryder, who admitted spending two months to find out who constituted the “Geauga Constitutional Council,” so he could file a complaint against Mr. Corsi.

In Buckley v. Valeo (1976), and again in Federal Election Commission v. Massachusetts Citizens for Life (1986), the Supreme Court held that the regulatory requirements of operating a political action committee could not be imposed on groups that lacked the primary purpose of supporting or defeating political candidates in elections. But across the country, states are flouting that command, imposing rigid requirements on ordinary citizens who are trying to express their political opinions.

In Colorado, for example, a group of friends calling themselves the Coalition for Secular Government operate a website on which they posted a long policy paper on abortion and church-state relations. The paper concluded by urging Coloradans to vote “no” on a ballot measure. For that, the state says they must register as a political committee and report their activities, income and expenses.

Most state statutes now simply ignore the Supreme Court and require that two or more citizens who spend even nominal amounts on politics to register and report to the government. Even printing yard signs or running an email list can trigger these requirements. In Ohio, a single dollar in expenditures will do, so be careful if you talk politics over a cup of coffee.

As a former commissioner at the Federal Election Commission, I have seen the effects these laws have on citizen participation and civic-mindedness. I have read the plaintive letters from citizens who could not afford a lawyer, and could not believe their government was fining them for political activity.

In the past, both liberals and conservatives on the Supreme Court were sensitive to this problem. Liberal Justice William Brennan wrote the majority opinion in the Massachusetts Citizens for Life case. But that sensitivity appears to be vanishing.

Forty-seven years ago, in Mills v. Alabama, the court struck down a lawprohibiting election-day newspaper editorials, noting, “there is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs."

Is that still true? Will the court leave millions of Americans who want to engage in politics at risk of prosecution? Will it leave Mr. Corsi hanging?

Like the author of that column, I would like to see how the Supreme Court answers these questions.

Another victory for gay marriage

The Treasury Department yesterday ruled that same-sex couples who were married in a state or country where it was legal and subsequently moved to a state that does not recognize that marriage will be considered married for income-tax purposes. They can file as single people until Sept. 12 of this year if they choose to, but afterward will have to file either as married filing separately or as married filing jointly.

It's probably a good thing, but will lead to some interesting complications. Before the Supreme Court ruled DOMA unconstitutional, same-sex couples had to be treated as single individuals under Federal law, so they'd have to file Federal returns as single even if their state permitted them to file jointly. Now, the reverse is true: same-sex couples whose state does not permit them to file jointly can do so on their Federal returns.

Of course, if couples like John Arthur and Jim Obergefell, whose Maryland marriage had not been recognized in Ohio, succeed in their suits (Arthur and Obergefell did get a judge to rule in their favor, though Ohio may appeal), based on Article IV of the Constitution, this anomalous situation where couples can file Federal returns as a married couple, but not state returns, will eventually fall. That is, obviously, the best solution: in states like Virginia they may yet be unable to get married, but by crossing over to another state, they will marry, and their states will have to recognize it. Eventually a Loving v. Virginia sort of ruling will come, even though in 2013 it's too early for that.

Obamacare and the First Amendment

The Obamacare assault on our Constitutional rights has not been settled by last year's Supreme Court decision that the penalties under the individual mandate were constitutional because of Congress's taxing authority. The next front is posited on the First Amendment — can someone be forced to provide coverage that runs counter to their religious beliefs? And a post dated August 22, 2013 by Sam Baker on the site of “The Hill,” entitled “ObamaCare birth control mandate on fast track to Supreme Court,” shows what is coming up:

ObamaCare's birth control mandate is putting the president's signature legislative issue on a fast track back to the Supreme Court.

Lawyers on both sides of the issue say the high court will almost certainly have to rule on the controversial policy, possibly as early as its next term.

Two federal appeals courts have come down with opposite rulings on an important question related to the policy: whether for-profit businesses and their owners have the right to challenge in court the requirement that businesses provide contraception as part of their insurance coverage.

“I think it’s likely the Supreme Court is going to end up deciding this thing, and the question is when,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which has organized many of the 60-plus lawsuits challenging the contraception mandate.

The different rulings by the two federal appeals courts significantly increase the likelihood the mandate will end up with the Supreme Court, possibly with a ruling just two years after the justices ruled ObamaCare’s insurance mandate was constitutional.

Louise Melling, deputy legal director at the American Civil Liberties Union, which supports the contraception mandate, said it’s “likely” the Supreme Court could hear oral arguments in its next term, depending on the timing of appeals.

“I would anticipate, when there’s this much activity … that the court will hear one of these,” Melling said.

Last month, a panel of judges on the 3^rd Circuit Court of Appeals ruled against the owners of a for-profit corporation who sued to block the mandate.

Members of the Hahn family, which owns a cabinet-making firm called Conestoga, said complying with the contraception requirement would violate their Mennonite faith.

But the 3^rd Circuit said the family could not sue over a policy that applies to its company.

“Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything,” the court said. “All responsibility for complying with the Mandate falls on Conestoga.”

The owners’ religious beliefs do not “pass through” to the corporation they own, the court said in its ruling.

“The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns,” the court said.

The ACLU’s Melling said the 3^rd Circuit got it right. The Constitution guarantees freedom of religion to individuals, she said, not businesses.

“Corporations don’t pray and have values,” Melling said.

Alliance Defending Freedom, the group representing Conestoga and the Hahns, has vowed to appeal the ruling to the Supreme Court. Matt Bowman, the alliance’s legal director, said the group will file its appeal as soon as possible.

“We are hopeful that the court will take this because whether families can exercise religion in their daily lives is an extremely important issue, and it can’t be an issue that has a different answer based on what part of the country you live in,” Bowman said in an interview.

ObamaCare’s birth control mandate requires most employers to include contraception in their employees’ healthcare plans without charging a co-pay or deductible.

Churches and houses of worship are completely exempt. Religious-affiliated employers, like Catholic schools and hospitals, don’t have to offer or pay for the coverage themselves, but their insurance companies still have to make it available without cost-sharing.

Most lawsuits against the mandate have been filed by religious-affiliated institutions, but some for-profit corporations without a religious mission have also sued, citing the religious beliefs of their owners.

Critics of the mandate won an important victory in June, when the 10^th Circuit Court of Appeals ruled in June that the owners of Hobby Lobby, a chain of arts-and-crafts stores, could sue to block the mandate from applying to their company.

“Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” the 10^th Circuit asked. “The kosher butcher, of course, might directly serve a religious community … But we see no reason why one must orient one’s business toward a religious community to preserve Free Exercise protections.”

It’s possible the court could simply agree to hear the Conestoga case, but legal experts said they’re primarily keeping an eye on the Hobby Lobby suit.

How quickly the mandate makes it to the Supreme Court will likely depend on whether and when the Justice Department files an appeal in the Hobby Lobby case, they said.

“I assume they are eager to get this thing resolved,” the Becket Fund’s Rienzi said. His organization represents Hobby Lobby.

Justice could forego a quick appeal and let the issue continue to play out in lower courts. Neither the 3^rd Circuit nor the 10^th Circuit actually ruled on the merits of whether the contraception policy is constitutional, and similar lawsuits are still pending in two more circuits.

For either case to make it onto the docket in the court’s next term, Justice would need to file its appeal by about Sept. 25, legal observers said.

If the court agrees to hear the case, oral arguments would likely take place early next year and a decision would come by next summer — about two years after the court’s landmark ruling upholding the law’s central provisions.

“I’m just assuming that the court is going to hear one of these cases,” the ACLU’s Melling said.

Obamacare is so complex and involves so many convoluted relationships that it may end up with enough pieces ruled unconstitutional that enforcing it will be impossible. And that may be the path to repealing it.

The marriage front advances

Now that the Supreme Court has repealed DOMA, so that the Federal Government recognizes same-sex marriages where the people live in a state that does, obviously the next step is to have more states recognize them. As I said in a post at the end of last month, I thought the best way to proceed was to use an Article IV argument, and at least in some states (Pennsylvania and Ohio) this is how they are going. The Ohio case is of some interest because a couple came here, to Maryland, to marry. (This was a case of the sort that I thought was less likely to succeed; they were really Ohioans, but just went to a state where they could marry specifically for that purpose. So this will be a real test of how well the Art. IV argument works.) So far, a Federal District Court judge has bought the Art. IV argument. Will this case go higher? To the Supreme Court? Only the state of Ohio can decide — as they might appeal this courageous decision.

And yet, there are people who want to stand in the way. A post by Shane Vander Hart, entitled “Federal Judge Ignores Ohio’s Marriage Amendment,” seems to think Art. IV does not apply, because marriage between a man and a woman is something special:

This is a sad circumstance, no doubt, but yes Ohio can. They have a Constitutional Amendment that forbids marriage licenses to be issued to same-sex couples and for their marriages to be recognized in the state of Ohio. The Supreme Court, when it struck down the Federal Defense of Marriage, act did state that the definition of marriage has traditionally been up to states. Ohio doesn’t have to recognize marriages between cousins and involving minors if they chose not to, but the difference with those is that they are involving – one man and one woman. Judge Black is comparing apples to oranges.

This is exactly why the Federal Defense of Marriage act was passed so other states would not be forced to adopt another state’s redefinition of marriage. This is an example of why it would have been helpful for the U.S. Supreme Court to rule on California’s Proposition 8. Can Federal judges ignore or overturn state constitutional amendments? I’d say in most circumstances no they shouldn’t unless there is a compelling Constitutional argument that a person’s enumerated rights spelled out in the Constitution are violated. There is no right to redefine marriage or, frankly, even a right to a marriage license. I know some would argue the government shouldn’t even issue marriage licenses – I can sympathize with that viewpoint, but the horse is already out-of-the-barn on that. It’s instances like fuel that help make the case for a Federal marriage amendment if Federal courts continue to insert themselves.

States have always been able to determine their own marriage laws and issuing marriages licenses to one man and one woman is demonstrating equal protection under the law. Every man and every woman in states like Ohio have the ability to marry one (willing) spouse of the opposite sex – provided it’s not an incestuous relationship and they are not minors.

But in fact, the judge's decision rests, among other things, on the fact that Ohio has honored marriages performed in other states between first cousins (considered incestuous under Ohio law) and people who were considered minors under Ohio law! Mr. Vander Hart even quotes ABC News, although the actual source is the Associated Press:

In his ruling, Black said that historically, Ohio law has recognized out-of-state marriages as valid as long as they were legal where they took place, pointing to marriages between cousins and involving minors.

So Mr. Vander Hart is undermining his own argument by the last sentence of the quoted portion (which I emphasized in blue) of his post.

And, I note, Mr. Vander Hart uses the phrase “another state’s redefinition of marriage.” I don't understand how anybody is “redefining marriage,” when all they have done is open it up to a larger class of people. As I said on July 11,

[Michael] Geer (the president of Pennsylvania Family Institute) is, as conservatives try to do, defining this as a “redefinition of marriage”: but it is hardly a real redefinition; it is simply redefining who is eligible. When the vote was extended to 18 year olds, it did not “redefine” an election; it simply made more people eligible. This is no different.

Why do conservatives like Mr. Vander Hart think it is so important that same-sex couples not be afforded equal marriage rights? Well, it is telling that the blog on which he made the post has the subtitle “Stimulating Christian conservative news and commentary.” He is not just “conservative,” but his commentary is from a “Christian” angle. And there's the rub. No matter what Christians like to say, this is not “a Christian nation.” It is a pluralistic nation, with a First Amendment that recognizes all religions as equal — even atheism! Mr. Vander Hart wants to impose “Christian values” — and not just any sort of “Christian values,” but the values of his particular version of Christianity (since some Christian churches are willing to accept same-sex marriage!) — on all of us, regardless of our own religious values.

The one thing that no “Christian conservative” has been able to demonstrate to me is how allowing same-sex couples to marry affects, in any way, the rights of opposite-sex married couples. And that would be the only justification for restricting them.

Recess appointments

In my last posting, I said that “as good as our Constitution is in so many ways, it has a few blemishes resulting from the fact that the world has changed in the 200+ years since its adoption, without the necessary amendments.” And one of those outdated provisions refers to the fact that, since it would be hard (given the state of transportation in the 1780s) to reconvene the Senate after it has adjourned and its members gone home, the President was given the power to make appointments which would normally require Senate confirmation, without that confirmation, during a recess of the Senate:

The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. (Article II, Section 2, U. S. Constitution)

With the Congress in almost continuous session, it would appear that this clause would be almost defunct in its effect, except that Presidents have construed “recess” in a very generous way, considering relatively short periods when the Senate has closed up shop as recesses within the meaning of this clause — no President more than our incumbent, President Barack Obama. He has made a number of appointments during periods when the Senate had simply closed for the weekend — particularly, ones that might not pass the Senate's muster. He has particularly used this power to stack the National Labor Relations Board with pro-organized-labor appointees, destroying its ability to make impartial decisions.

But now the chickens have come home to roost.

The U.S. Court of Appeals for the D.C. Circuit has just ruled that some appointments made to the NLRB in January of last year were unconstitutional. And in that ruling, (Canning v. NLRB), the court specifically defined a recess:

…we hold that “the Recess” is limited to intersession recesses.

Now this is only a decision of the Circuit Court of Appeals, and the Obama Administration will surely appeal to the Supreme Court. But unless the Supreme Court rules otherwise, it is a powerful tool to rein the Obama Administration's attempt to do an end run around the Constitution's “advise and consent” clause. There were a number of interpretations current on what the “recess appointments” clause actually means, and the Court adopted the most restrictive one possible. It is surely to be hoped that this court's opinion will be sustained if and when appeal is made to the Supreme Court. Let us await their decision, with hope for the best.

Indiana and right-to-work

Earlier this year, the State of Indiana put into force a right-to-work law, and the results of this were treated by Asheesh Agarwal in a posting on Friday on the Liberty Law site entitled “After Right to Work Takes Effect in Indiana, Unions Seek a Judicial Bailout.” Agarwal's post is very interesting, and because I am very sympathetic to the ideals of right-to-work legislation (I wish we had it on the national level!), I would like to look into his post in some detail. He begins:

Amidst a series of setbacks at both the ballot box and the court house, the fate of the compulsory union movement may depend in large measure on the outcome of two lawsuits currently pending in Indiana. In early 2012, Governor Mitch Daniels signed into law a bill that made Indiana the nation’s twenty-third right-to-work state. Unions have filed two challenges to that law, one each in state and federal court. The outcome of those lawsuits will help to determine whether Indiana remains a right-to-work state and whether other states follow Indiana’s lead.

Indiana became a right-to-work state after a protracted two-year struggle in the state legislature. In 2011, under the direction by Minority Leader Pat Bauer, Democratic state representatives fled to Illinois for several weeks to deny Republicans a quorum in the state house. The Democrats’ departure generally sat poorly with the public, which sympathized with Republican arguments that the Democrats should do their jobs. Republicans also ran a series of amusing attacks, including a radio commercial entitled, “Won’t You Come Home, Pat Bauer?” (sung to the tune of “Won’t You Come Home, Bill Bailey.” Nevertheless, the tactic worked as Governor Daniels ultimately acceded to the Democrats’ demands to table the right-to-work bill for the rest of 2011, in order to secure passage of his education reform agenda.

Not terribly surprising. As I have said in various posts before, the Democratic Party is heavily beholden to organized labor, one reason I am a Republican. And Democrats, in Texas and Wisconsin as well, have resorted to leaving the state to prevent a quorum when they cannot get their way. Agarwal continues:

In 2012, the legislature again took up right-to-work legislation. This time, the Democratic state representatives walked off the floor for a few days, largely as a symbolic measure. The Democrats knew that the public had lost its tolerance for legislative shenanigans. Democrats also knew that they faced re-election later that year. Perhaps most importantly, in early 2012, Hoosiers were much more concerned with serving as hospitable hosts to the Super Bowl than to refereeing protracted policy disputes. Not coincidentally, Governor Daniels signed the right-to-work bill into law on February 1, 2012 – four days before the Super Bowl.

Under the right-to-work law, individuals are neither required to join, nor prohibited from becoming members of, a union. The law makes it a Class A misdemeanor to require an individual to become or remain a member of a labor organization, or pay dues, fees, or other charges to a labor organization, as a condition of employment. The law also establishes a private right of action for violations, including the ability to obtain damages, civil penalties, and attorneys’ fees.

In its first few months of operation, the right-to-work law has, by almost any measure, helped to attract new businesses to Indiana. Indiana has only 2.2 percent of the nation’s population. In April, the first full month after the law took effect, more than one in eight jobs created around the country were created in Indiana – more than in states several times the size of Indiana. According to the state’s economic development arm, almost fifty out-of-state companies cited the right-to-work law as one reason that they were considering opening a location in Indiana.

This looks to me as only fair. people should not be compelled to join an organization with which they disagree just to get a job. And others have also noted that right-to-work states seem to be doing better at getting business, because having a right-to-work law is perceived as friendliness to business. (Would a national right-to-work law help our job numbers? Perhaps, though the case is not provable.) But, Agarwal continues,

Nevertheless, the right-to-work law is now facing legal challenges in state and federal court, both from affiliates of the AFL-CIO. The federal lawsuit throws a number of charges at the law, most focused on alleged violations of the U.S. Constitution. The union argues that the law violates the First Amendment, Equal Protection Clause, Ex Post Facto Clause, Contracts Clause, Takings Clause, a federal statute, and the state constitution. Among other complaints, the union alleges that the law interferes with existing contracts and restricts its ability to spread its message.

The union’s primary complaint, however, is that the law reduces its revenues. In a revealing affidavit, a union organizer explained that, in light of the right-to-work law, union members would have the freedom to pursue their own self-interest, to the detriment of the union: “I believe the ability to cease paying dues completely may prove too attractive for some of our members to resist. If just 10 percent of the Union’s Indiana members resign, the Union will lose at least $600,000 in annual revenues.” Remarkably, the union essentially concedes that a significant portion of its members would leave the union if they were free to pursue their own self-interest.

The state lawsuit has a narrower focus. That lawsuit alleges that the right-to-work law forces unions to represent non-members for free, in violation of state law. By way of background, the National Labor Relations Act (NLRA) requires a certified union to represent all members of a bargaining unit, including non-members. As a result, a certified union must handle grievances and other matters for non-members, even if those non-members refuse to pay dues. The unions complain that the NLRA thereby allows some employees to “free ride” off of the union’s efforts. (One response to this complaint is that non-members are denied the right to negotiate their own terms and conditions of employment, and may not want the union’s “representation,” so they are actually better characterized as “forced riders.” Another response to this complaint is that the union’s duty to represent non-members should be viewed as a “cost of doing business” – because a certified union has the extraordinary power to represent even non-members, and because that monopoly power enhances the union’s bargaining position, the union therefore also must have the responsibility to represent the non-members).

Of course, I don't think this provision of the NLRA is such a great thing — and if the unions were really concerned with a fair solution, they would ask to be released from the need to represent nonmembers, rather than having the nonmembers forced to become members! But, continuing,

In any event, state law comes into the picture through the backdoor. Indiana’s constitution forbids the government from demanding that anyone provide services, without just compensation. For example, if the state requires an attorney to represent an indigent defendant, the state’s constitution requires that the attorney receive just compensation. According to the union, by enacting the right-to-work law, Indiana has denied unions the ability to require fees from non-members, and therefore improperly “demanded” that unions serve non-members without compensation.

In moving to dismiss both lawsuits, the state pointed out that the right-to-work law does not require unions to do anything. As the state explained, it is the NLRA, a federal law, that requires a union to service non-members. The union is not “required” to service anyone – if a union does not want to represent non-members for free, it need not seek to become the exclusive representative for a bargaining unit that includes non-members. Unions are free to advocate to employers for their members, and to engage in lobbying and other activities, whether or not they are exclusive bargaining representatives.

But fortunately, the unions are not unopposed in their legal activity:

With the help of the National Right to Work Legal Defense Foundation, several employees have filed amicus briefs in support of the state. These employees point out that courts have upheld similar laws in other right-to-work states. The employees also argue that federal law preempts the union’s argument. In other words, if the state’s constitution mandated that non-members must pay dues, then the state constitution would be preempted by federal law, which gives employers the option not to agree to forced unionism requirements, employees the option to deauthorize such requirements, and states the option to prohibit them.

The outcomes of the two lawsuits in Indiana, both pending in trial courts, will help determine the future of the union movement. Indiana lies in the heart of the central Midwest – a/k/a the “Rust Belt” – the historical heart of the union movement. Other Midwestern states, including Ohio and Michigan, are already considering right-to-work legislation. Moreover, unions are already on the defensive on multiple fronts across the country. In the aftermath of the unions’ failed effort to recall Governor Walker in Wisconsin, several other states are now considering ways to restrict public sector collective bargaining. In its recent decision in Knox v. SEIU, the Supreme Court questioned the “free rider” rationale for forced unionism and sent a strong signal that, in the near future, public unions will have to persuade non-member employees to affirmatively “opt in” to fund the unions’ political speech, as opposed to the current system, in which non-member employees have to affirmatively “opt out” of funding such speech. Another loss in Indiana could prove the straw that broke the (unionized) camel’s back.

Perhaps, as I said a few days ago, this may end up being the first of many cases where the precedent of Knox v. SEIU will lead the way to fairer labor laws. I certainly hope so.

One more nail in the coffin of DOMA

A three-judge panel of the First Circuit Court has ruled the so-called “Defense of Marriage Act” unconstitutional. Unfortunately, it is unlikely that this will be the end of it; one of the few things I strongly dislike about the current Republican leadership in the House of Representatives is that it has taken up the cause of the homophobic bigots of this country, and has retained legal counsel that will probably appeal this verdict, even though the Obama administration will not. But given that this ruling was unanimous, it gives hope that the Supreme Court will let this decision stand.

I really cannot see any justification for DOMA. Marriage law has historically been a matter for the states, and the only case where the Supreme Court has invalidated a State law has been to keep a State from restricting marriage. (See Loving v. Virginia.)

So far, this is only one more nail in the coffin of DOMA, but there is only one more step available. If it is appealed to the Supreme Court, we will have to await a final decision.

One thing I find somewhat ironical is the stand of a lot of “conservative” columnists, who might in other cases cheer a Court's setting aside of a Federal law attempting to interfere with State prerogatives, but who take the other side here — even taking Pres. Obama to task for refusing to defend DOMA! But Pres. Obama is sworn to uphold the Constitution, and if he believes DOMA to be unconstitutional, he is doing exactly the right thing! (Suppose a “conservative” was in the White House, and a law under attack on constitutional grounds was one that conservatives thought to be unconstitutional. Should the President defend that kind of law too?)

The 9th Circuit Court's ruling on gay marriage

The 9th Circuit Court of Appeals has issued an opinion (Perry v. Brown) on California's Prop. 8 anti-gay-marriage vote. In keeping with a Supreme Court doctrine that judicial rulings should be as narrow as possible, covering only what is absolutely necessary, the ruling didn't try to establish a Constitutional right to marriage — which supporters of gay marriage would have liked to see — but merely stated that Prop. 8 was invalid simply because it took away rights that had already been possessed by gay people (as a result of a California court decision). And they referred to another decision, Romer v. Evans, by the Supreme Court, that prevented Coloradans from voiding already-passed anti-discrimination laws affecting gay people. And therefore it applied to California, but no other state.

The Religious Right will, of course, appeal, but even assuming they lose and the 9th Circuit Court's decision stands, nobody outside California can gain much from it. But it is an incremental win for equality. And that's a plus.

One thing is clear: By citing Romer v. Evans, the Court has made a clear appeal for the support of Supreme Court Justice Anthony Kennedy. He is often the deciding Justice in 5-4 decisions, and he wrote the opinion in Romer v. Evans.

Scoreboard on the individual mandate

At the District Court level, four courts have ruled. Two say it's constitutional, two say it's unconstitutional.

At the Circuit Court of Appeals level, two courts have already ruled, one remains to be heard from. One says it's constitutional, one says it's unconstitutional.

Whatever the 4th Circuit Court in Richmond, the remaining appeals court says, this is a sharp division. It clearly will have to go to the Supreme Court. I'm not certain why there is so much division among the judges — its unconstitutionality is clear to me. But all bets are off until the Supreme Court actually rules. I'm waiting with bated breath.

The Eleventh Circuit has ruled! Now on to the Supreme Court.

A great opinion was issued by the Eleventh Circuit Court of Appeals. The individual mandate in last year's health care law is unconstitutional.

[T]he individual mandate contained in the Act exceeds Congress’s enumerated commerce power. This conclusion is limited in scope. The power that Congress has wielded via the Commerce Clause for the life of this country remains undiminished. Congress may regulate commercial actors. It may forbid certain commercial activity. It may enact hundreds of new laws and federally-funded programs, as it has elected to do in this massive 975- page Act. But what Congress cannot do under the Commerce Clause is mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.

This is one more nail in the coffin of the bill that has been called "Obamacare." As I have maintained all along, whatever may be the good features of the bill, the individual mandate clearly has to go.

The Obama administration obviously will appeal to the Supreme Court. This, of course, they have a right to do. But I predict that the Justices of that court will accept the Eleventh Circuit's ruling. The Constitution is clear on this point.

The end of "Don't Ask, Don't Tell" -- finally!

Through the Frum Forum blog, it has come out that the military has finally complied with the court order to accept openly gay recruits. The order was issued by the Ninth Circuit Court of Appeals.

Funny, President Obama was elected with so much gay support, but it took the judiciary to end DADT. If Obama were so pro-gay, he could have issued an executive order.

In this, as in the gay marriage controversy, the President talks as if he is sympathetic to gay equality, but look at his actions! Yet the majority of gay activists remain firmly behind him. It's not really justified, but you can't convince them.

Reliving the O. J. Simpson case

I notice that on another blog, there is a post by Marcia Clark, who was the prosecutor in the O. J. Simpson trial, in which she describes the Casey Anthony verdict as "Worse Than O.J.!" This, of course, implies that the O. J. Simpson verdict was wrong. Now I want to say this: I am definitely not a football fan, so in my mind O. J. Simpson was hardly the "American hero" that, to some people, he was. And I am absolutely convinced that Simpson murdered those two people. Yet, had I been on that jury, I would have had to vote to acquit. Why? Because in our legal system, the accused is presumed to be innocent, unless guilt can be proven beyond a reasonable doubt. And the prosecution failed to make that kind of a case. With the possibility of evidence tampering by a racist policeman, the procesution's case was definitely one that could engender doubts.

I haven't followed the Casey Anthony case that closely. I don't know whether the not-guilty verdict there made sense — what I've seen implies she was, in fact, guilty, but read what I said about Simpson above. But I think Marcia Clark, who couldn't get a conviction herself in a case where the defendant was clearly guilty, because her side botched the case, is not the one to comment!

One more step in the vetting of the health care law

A three-judge panel of the Sixth Circuit Court of Appeals (Cincinnati) has ruled the Obama health care law constitutional. And at least one blog post, by Eli Lehrer in the Frum Forum, predicts that the law will survive. I hope not. But a lot has to happen. Two other Circuit Courts of Appeals, the Fourth in Richmond and the Eleventh in Atlanta, still have to rule. And then, it surely will reach the Supreme Court.

The Cincinnati court was upholding a lower court ruling, in Michigan. Among the District Court rulings, two found it constitutional and two found it unconstitutional. If these courts failed to agree, why does Lehrer believe the Circuit Courts will all agree? And the Supreme Court often overrules circuit court decisions anyway. So this is just one setback for justice. In the long run, nothing has yet been decided.

Yes, criticize Pres. Obama when he deserves it. But this isn't such a case!

There is a family of newspapers all called "The Examiner," published in various places around the nation, under a common ownership. One of those places is Washington, D. C., and since I live in the Washington suburbs, I get to see that edition of the Examiner regularly, without going online, though the columns appearing there do appear online, so I can link to them. The paper is pretty uniformly conservative, which means I usually agree with them on economic issues and disagree with them on social issues. And today, I saw a column on one of those social issues, and I feel I need to comment on it.

One of their regular columnists is Hugh Hewitt, and his column appeared today, under the title: "Time for government attorneys to stand up to Obama". And although some of the points that Hewitt made have some merit, Hewitt, annoyingly, said:

This president told his DOJ to refuse to defend a federal statute that has never been questioned by any federal appellate court, much less by the Supreme Court, the Defense of Marriage Act.

Now, the way I understand our Constitutional system, when no court has even ruled on a law, and perhaps even up until the Supreme Court rules on it, anyone, certainly including the President, has a right to decide whether he believes that law is constitutional. And Hewitt specifically states that DOMA "has never been questioned by any federal appellate court, much less by the Supreme Court." The way I read the Constitution, this means its constitutionality is open to each American's interpretation. And, since President Obama has sworn to "preserve, protect and defend the Constitution of the United States," if he deems some act of Congress to be unconstitutional, it is acting within the spirit and letter of that oath to refuse to defend it.

I am sure Mr. Hewitt does not read this blog. I wish he did, so I could ask him pointblank: Suppose you were President of the United States, and Congress passed a bill you thought unconstitutional. Would you feel bound to defend it in court?

Are there any readers of this blog whe can make a case for Hewitt having any case there? Does anyone feel there is any compulsion under the Constitution for a President to try to defend an act that he believes to be unconstitutional? I'd really love to see any reason that Hewitt might consider to justify his condemnation of President Obama on these grounds.

The Judiciary: guardian of freedom

Just like the days of the African-American civil rights struggles in the 1950s and 1960s, it seems that when the more bigoted elements of our populace want to take away rights and freedoms from some group (currently, gay Americans), it takes a judicial decision to rule in favor of those rights and freedoms. As I posted in this blog last August, bigots trying to kill gay marriage rights in California challenged Judge Vaughn Walker's decision because he was gay and could himself be benefited by a ruling for gay marriage. As I said in that posting, perhaps Judge Walker should have recused himself because this was bound to happen, but the ruling itself was a good one. And so it came to another United States District Court judge, James Ware, who was asked to vacate Judge Walker's decision. (Walker has retired, but this does not figure in any of the discussions here.) And, showing the good sense required of his office, Judge Ware refused to listen to the bigots' pleas. Judge Walker's decision stands — at least unless the voices of bigotry can get an appellate judge to reverse it, which hopefully will not happen

Looks like these judges get it!

According to the Associated Press,

Judges on a federal appeals court panel on Wednesday repeatedly raised questions about President Barack Obama's health care overhaul, expressing unease with the requirement that virtually all Americans carry health insurance or face penalties.

All three judges on the 11th Circuit Court of Appeals panel questioned whether upholding the landmark law could open the door to Congress adopting other sweeping economic mandates.

And later on in the same story:

...the pointed questions about the so-called individual mandate during almost three hours of oral arguments suggests the appeals court panel is considering whether to rule against at least part of the federal law to expand health care coverage to tens of millions of Americans.

It is absolutely clear to me: the individual mandate is unconstitutional. And now, even some Democratic-appointed judges are feeling that way. (Two of the three judges on the 11th Circuit Court panel are Clinton appointees.)

It won't be finally decided until the Supreme Court gets to rule. But more and more, the unconstitutionality of this is being recognized by the Federal judiciary.