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Reversal: The ACLU Supports Limits on Free Speach

Floyd Abrams, writing in the Wall Street Journal:

Nonetheless, we've come to this: The premier First Amendment organization in America now favors limitations on the First Amendment in the area in which all agree it must have its most powerful application—political speech during election campaigns.

Experience has shown that the kinds of campaign finance limits the ACLU now endorses have entrenched the powers-that-be even further. Thus the ACLU is prescribing a lot of First Amendment pain for no real democratic gain. And in the process of changing its policy, the principal defender of free-speech rights will abandon that field to others.

In essence, the rhetoric of egalitarianism has won a victory over freedom of speech: The new restrictions the ACLU supports will never bring about the equality it claims is its goal. This is a self-inflicted wound from which the ACLU will not soon recover.

SCOTUSreport.com

The Federalist Society has launched SCOTUSreport.com. From the website's About section:

The Federalist Society is pleased to announce the launch of a new website, SCOTUSReport.com. The purpose of this site is to collect in one place the key news and documents, as well as commentary from across the legal, political and philosophical spectrum, regarding the upcoming Supreme Court nomination. We have regularly been asked by the media and others whether there is any such web-based resource. To date there has not been. So we decided to launch one, both in order to meet this demand and, in light of the public attention focused on these issues during Supreme Court nominations, to use the occasion to promote widespread public debate and education about the role of courts in our constitutional democracy.

Obama and "Conservative Judicial Activism"

Speaking aboard Air Force One, President Obama appeared to fire a shot across the bow when he warned of "conservative judicial activism." In remarks that seemed to be clearly aimed at the constitutional challenges to Obamacare,

He said the notion of judicial restraint should apply to liberal and conservative jurists. Instead, the president said arguments over original intent and other legal theories end up giving judges a lot of power — sometimes more power than elected representatives have.

Obama said judges should presume that the laws produced by the House and Senate and state legislatures should get "some deference as long as core constitutional values are observed."

As always, the devil is in the details. For example, what does Obama mean by "core constitutional values?" With respect to Obamacare he certainly doesn't mean limited government, federalism, or individual liberty - at least in the economic sense. What Obama means, essentially, is the Court should be deferential to his big government boondoggles while striking down laws that interfere with liberal "core constitutional values."

Why Obamacare is Unconsitutional Under Congress' Power to Tax

Steven J. Willis and Nakku Chung have a forthcoming article in Tax Notes arguing that Obamacare's individual mandate is unconstitutional. The abstract:

Willis and Chung demonstrate how I.R.C. § 5000A – the HEALTH CARE ACT penalty – is an unapportioned Capitation Tax, violative of U.S. CONSTITUTION ARTICLE I, Section 9. As they demonstrate, the "penalty" is – at least on its face - a tax. To be a Constitutional tax, it must be an Excise Tax, an Income Tax, or a proportional Capitation Tax. Through the process of elimination, they demonstrate the penalty is none of these.

Others convincingly demonstrate the "penalty" is unconstitutional under the Commerce Clause. They argue the "penalty" is indeed a penalty and not a tax. Willis and Chung pick up where that argument leaves off: if that argument fails and the Court finds this is a tax, it is an unconstitutional unapportioned Direct Tax.

Despite being labeled an Excise Tax by Congress, the penalty is unlike any existing Excise Tax because it applies to the failure to act by an individual. Existing failure-to-act Excise Taxes differ because they apply to entities which have chosen to partake in particular activities. The provision thus fails the historic requirements of an Excise Tax, namely that it apply to an activity, transaction, or the use of property. The tax also fails the traditional "pass-on" nature of Excise Taxes. If the Court were to approve it as a uniform Excise Tax, the Direct Tax apportionment requirement would be eviscerated.

The penalty similarly fails the 16th AMENDMENT definition of an Income Tax. Not only does it appear not to tax income, it fails to operate as an Income Tax, and it fails the 16th AMENDMENT realization requirement long accepted by the Supreme Court. Willis and Chung dismiss - as unrealistic academic dogma - arguments for ignoring the realization requirement. They acknowledge, but refute, academic arguments criticizing the Pollock and Macomber decisions, as well as arguments for ignoring the CONSTITUTION's Direct Tax apportionment requirement.

What a Judicial Nominee Should be Entitled to

The Washington Post endorses 9th Circuit nominee, Goodwin Liu, in a short, unsigned editorial. There is much that could be commented on, but I want to focus on one paragraph in particular.

It would be no surprise if Republicans gave Mr. Liu a taste of his own medicine and cast party-line votes against him. But it would be wrong. Mr. Liu, like every other judicial nominee, should be judged on his qualifications and voted down only if he is ethically compromised or if his views fall far outside accepted strands of legal theory.

This is flat out wrong. Judicial Nominees are not and should not be entitled to a Yes vote. They are entitled to a fair, timely process and, in my opinion, an up or down vote. While Mr. Liu's views may not be "far outside accepted strands of legal theory," they are certainly far outside the views of mainstream Americans. As such, Senators should be able to reflect the views of their constituents by casting a No vote.

Addendum: Much like The New York Times, The Washington Post leaves itself plenty of wiggle room to advocate against conservative nominees with their "far outside the strands of legal theory" language. Because academia is so dominated by left wing views, conservative legal beliefs are often necessarily out of the academic mainstream. This generally puts them, however, within the views of mainstream Americans.

SCOTUS Nomination Round-Up

Potential Supreme Court pick Garland could find foes on left

Democrats Aim to Tap Populist Anger in High-Court Fight accessible via Google News

Obama considering former Detroit Public Schools teacher as Supreme Court nominee

Fit to Judge: What the Goodwin Liu hearings reveal about the judicial confirmation process

The Case For Diane Wood

Nine Supreme Court justices? Why not stick with eight?

3 Reasons Why Obamacare is Unconstitutional Under the Power “To Lay and Collect Taxes”

Robert Levy takes on the constitutionality of Obamacare under the taxing power in National Review. He points to three reasons why Obamacare is unconstitutional.

First, the penalty is not a tax; it’s a fine. The president said as much when confronted with the argument that it violated his promise not to raise taxes on the middle class. ...

Second, even if the penalty for noncompliance is deemed to be a tax rather than a fine, it does not meet the constitutional requirements for income, excise, or direct taxes. ...

The third reason the power to tax cannot justify an insurance mandate is that, even if the penalty is considered a tax and somehow survives the test for apportionment or uniformity, Congress cannot use the taxing power as a backdoor means of regulating an activity, unless the regulation is authorized elsewhere in the Constitution.

Read the whole thing.

RELATED: Randy Barnett discusses Obamacare on the Healthcare Channel.

In WH meeting, the Two Republicans Were Only Ones Never to Filibuster a SCOTUS Nominee

From Byron York.

When Senate leaders went to the White House Wednesday morning to discuss the Supreme Court opening, the meeting was attended by President Obama, Vice President Joe Biden, Senate Judiciary Committee chairman and ranking member Patrick Leahy and Jeff Sessions, and Senate majority and minority leaders Harry Reid and Mitch McConnell. ...

"It didn't go without being noticed that only two of the elected officials in the room had never filibustered a Supreme Court nominee," says one Republican Senate aide. Those two, of course, were McConnell and Sessions. So at the moment, the only lawmakers who are being criticized for even being open to the possibility of a filibuster are the ones who have never, in fact, taken part in one. "It's kind of challenging for Democrats now to make the case that Republicans ought to be helpful and speed things up when they not only tried to slow Alito down but voted against cloture," says the Senate aide.

Obama's Short List

As reported by Jan Crawford.

Martha Minow, dean of Harvard Law School

Elana Kagan, Solicitor General, former Harvard Law dean

Sid Thomas, Montana federal appeals court judge

Merrick Garland, federal appeals court judge, Washington DC

Jennifer Granholm, Michigan governor

Diane Wood, Chicago-based federal appeals court

Janet Napolitano, Secretary of Homeland Security

Leah Ward Sears, former Chief Justice, Georgia Supreme Court

Ann Claire Williams, federal appeals court judge, Chicago

The Golden Age of Free Speech

From Adam Liptak:

It has been more than a quarter-century since the Supreme Court placed a category of speech outside the protection of the First Amendment. Tuesday’s resounding and lopsided rejection of a request that it do so, along with its decision in Citizens United in January — concluding that corporations may spend freely in candidate elections — suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.

And in the next couple of months, the court is set to decide several other important First Amendment cases about anonymous speech, the right of free association and a federal law that limits speech supporting terrorist organizations.

While I am sure neither right nor left agree with all the speakers involved in these cases, it is interesting to see the breadth of free speech protection secured by the Roberts' Court. This is especially noteworthy at a time when countries around the world are actively engaged in stifling free speech.

Related: Artistic Expression v. The Nanny State

Both stories courtesy of Hit & Run

Is Diane Wood the Public Option?

I have been cruising some lefty sites to see who is being talked about to replace Justice Stevens, and I came across this interesting analogy from Glenn Greenwald.

If one were to analogize the search for Justice Stevens' replacement to the recently concluded health care debate, Seventh Circuit Court of Appeals Judge Diane Wood would be the public option. Just as the truly left-wing health care approach (a single-payer system) was eliminated from consideration before the process even began, so, too, have the truly left-wing candidates to replace Justice Stevens (Pam Karlan, Harold Koh) been ruled out as "not viable." As a result, the moderate-progressive compromises (i.e., the public option for health care and Diane Wood for Stevens' replacement) are falsely depicted as some sort of liberal extremism, merely because they're the least conservative options allowed to be considered.

I would expect this analogy to gain traction with the far left. For context, here is Greenwald's preventative strike against Kagan.

Is White House Signaling a Kagan Nomination?

Sam Stein takes a look at the recent defenses of Kagan by the White House and wonders if they are signaling that she is the choice to replace Justice Stevens.

The aggressive pushback by the White House against speculation that potential Supreme Court nominee Elena Kagan is a lesbian -- she's not, the administration says -- has spurred talk that the Solicitor General currently tops the president's short list for the bench. The notion was posited early on Friday by the Plum Line's Greg Sargent. And there is other evidence to suggest it might be true.

On Wednesday, the Huffington Post learned, former White House Communications Director Anita Dunn, who is leading outreach efforts around the upcoming court vacancy, reached out to progressive allies to dismiss a critical article written about Kagan. The article, authored by Salon.com's Glenn Greenwald, attacked the former Harvard Law School dean for her expansive interpretation of executive powers. Dunn's response, however, focused on a much narrower Greenwald critique -- that Kagan didn't have sufficient experience and lacked an extensive written record, having never been a sitting judge.

The outreach left the impression that the White House has been aggressive in defending Kagan from attack. That, in turn, suggests that they have plans to tap her to replace Justice John Paul Stevens on the court.

Goodwin Liu & Clarence Thomas

The following quote, attributed to CFJ Executive Director Curt Levey, aired Friday in a story about 9th Circuit nominee Goodwin Liu on National Public Radio’s Morning Edition and also appeared in a print story on NPR’s web site:

“Goodwin Liu is not your typical liberal. He's very far out on the left wing, even in academia. So I think you could think of Liu as the Democratic Clarence Thomas.”

In response to questions about the quote, we present Mr. Levey’s unedited remarks below. With the full context – including the 78 words omitted between the second and third sentences of the quote – we hope it’s clear that Mr. Levey intended the comparison to be about grooming Liu for a seat on the Supreme Court.

Mr. Levey’s unedited remarks (excerpts used by NPR are in caps):

“Everybody expected Obama to nominate liberals to the federal courts, and that's what he's done, but GOODWIN LIU IS NOT YOUR TYPICAL LIBERAL. HE'S VERY FAR OUT ON THE LEFT-WING, EVEN OF ACADEMIA. He is an unabashed defender, really advocate, of judicial activism, and add on top of that, the fact that I think everyone knows that Obama would love to groom him for a spot on the Supreme Court. Obama would love to, you know, be able to say that he nominated the first Asian to the Supreme Court. As you know, it's been almost forty years since somebody who was not a judge was appointed to the Supreme Court. SO I THINK THAT YOU CAN THINK OF GOODWIN LIU AS THE DEMOCRATIC CLARENCE THOMAS. I think everyone knows that he's being groomed to be on the Supreme Court, and you know, that scares people because he's to the left of even Justice Ginsburg.”

In What Sense is the Personal Health Insurance Mandate “Unconstitutional”?

Professor Randy Barnett clarifies his previous remarks regarding the unconstitutionality of Obamacare's individual mandate and adds why he now feels more strongly about his opinion.

When discussing the “constitutionality” of a governmental action, one must distinguish between three senses of “constitutionality”: (1) What the Constitution says and means; (2) what the Supreme Court has said and meant, and (3) whether there are five votes on the Supreme Court to uphold or invalidate the action. ... I have been very clear in my publications and media statements that I am not offering an originalist objection to the individual health insurance mandate.

Instead, I have objected that the mandate that individuals purchase health insurance from a private company is unconstitutional under existing Supreme Court doctrine–the second of the three senses of unconstitutionality. And, in response to confident predictions that the Supreme Court will uphold the mandate, I have suggested that they may be less inclined to do so if the bill continues to be unpopular, one or both houses of Congress flip parties, a serious repeal effort is blocked by a presidential veto or filibuster in the Senate, and the “benefits” promised by the bill have yet to be implemented. Everyone should know I think this last type of analysis should have nothing to do with whether a measure is or is not “constitutional,” but I do not deny these factors are relevant to whether the Supreme Court will uphold or invalidate an act of Congress. My point is that those who confidently predict that the Supreme Court will uphold this bill are not taking these sorts of factors adequately into account.

Part of my constitutional assessment (in the second sense) involves the unprecedented nature of this claim of power by Congress. (The other part is analysis of what the Supreme Court has said about the Commerce power since the New Deal.) Having made this observation back in December in my co-authored paper for the Heritage Foundation, my confidence in its accuracy has been increased by two developments. The first is the change of subject to the Tax power of Congress. Think about it. If the claim that this legislation was as clearly authorized by post-New Deal Commerce Clause doctrine as so many law professors seem to assume, then why almost immediately change the subject to the power of Congress to tax? This switch telegraphs a fundamental weakness of the Commerce Clause claim.

The second development is the inability of supporters of the bill to generate any examples of when the Commerce Clause power has been exercised in the past to mandate individuals engage in economic activity by entering a contract with a private company. True the early Militia Act mandated militia members provide their own private arms, but this was not an exercise of the Commerce Power. And we have been treated to the discovery of an early statute taxing sailors and spending the money on hospitals for their care. Of course, this is very much akin to how Medicare works (which is clearly “constitutional” in the second and third senses), and the regulation of navigation is squarely within the original meaning of the Commerce Clause (as I have shown in Restoring the Lost Constitution: The Presumption of Liberty), so this provision seems “constitutional” in the first sense as well.

Should Conservatives Rethink Judicial Activism?

From George Will's latest column:

Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious "public use" of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)

The recent decision most pleasing to conservatives was this year's Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives' refusal to defer to Congress's expertise in regulating political speech.

So conservatives should rethink their rhetoric about "judicial activism." The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?

Huh?

"Dems take aim at court conservatives"

Democrats hope to turn the upcoming Supreme Court confirmation hearings into a referendum of sorts on controversial recent decisions by the Roberts court — portraying the conservative majority as a judicial Goliath trampling the rights of average Americans.

As President Barack Obama mulls possible replacements for retiring Justice John Paul Stevens, the administration and congressional aides are gravitating toward a strategy that goes beyond the goals of a run-of-the-mill confirmation fight – to define a corporations-vs.-the-common-man battle between Democrats and the high court.

In addition to building a defensive perimeter around Obama’s pick — whoever that may be — Democrats will use the hearings to attack what they view as a dangerous strain of conservative judicial activism espoused by Chief Justice John Roberts and Associate Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

So, we are going to have another nominee that eschews explaining the liberal view of judging to the American people? Sounds like a losing strategy for the Democrats to me.

CFJ to Congress: Oppose “Net Neutrality” Mandates

The Committee for Justice and about 30 other groups have written to members of Congress to express their concern about “a dangerous effort underway at the Federal Communications Commission” to “fundamentally alter the federal government’s role in regulating the Internet by imposing so-called ‘net neutrality’ mandates.” The letter asks members to oppose the mandates and instead support innovation and competition.

Justice Stevens and Liberty Cont'd

Writing at Townhall, Jacob Sullum takes his turn at debunking the myth that Justice Stevens was a champion of individual rights.

As Supreme Court Justice John Paul Stevens "gradually became the leader of the court's liberal wing," The New York Times reports, "he became increasingly skeptical of claims of government power." According to a Washington Post editorial, "his voice was consistently raised on behalf of those vulnerable to government excesses."

Such descriptions of Stevens, which were common after he announced his retirement last week, are based on a highly selective concern about state power. A closer look at Stevens' record shows he has been anything but consistent in his opposition to government excesses and that in some ways he has become less inclined to protect constitutional rights. ...

When it comes to reining in government excesses, the doctrine of enumerated powers, which says Congress needs specific constitutional authority for its legislation, is at least as important as the protection of enumerated rights. Yet Stevens has consistently opposed efforts to define the limits of the power to regulate interstate commerce, treating it as a blank check that Congress can fill in as it pleases. In 2005, he wrote a decision that said even a single marijuana plant grown by a patient in a state that allows medical use of the drug can be treated as interstate commerce.

In many of the cases where Stevens has sided with the government, he has been opposed by Antonin Scalia and/or Clarence Thomas, justices who have undeserved reputations as authoritarians hostile to civil liberties.

UPDATE: Tim Carney: Justice Stevens was no champion of the little guy.

President Obama said his nominee to replace John Paul Stevens on the Supreme Court would "be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

Tell that to the "ordinary citizens" of New London, Conn., whose homes were stolen by the government for use by real estate developers at the request of the largest drug company in America -- with the approval of Justice Stevens. ...

[I]n practice, liberalism often isn't really about the "little guy" as much as it is about central planning. The company and the city, Stevens wrote, had exhibited enough "thorough deliberation" and had "carefully formulated" a "comprehensive" plan -- and that was enough.

The hotel was never built, the bulldozed neighborhood is still rubble, and Pfizer has announced it is ditching the New London facility in the wake of its merger with Wyeth.

Also, Podcast: "Justice Steven's Undue Deference" featuring Cato's John Samples



UPDATE 2: David Harsanyi takes a look at Patrick Leahy's strategy for the upcoming SCOTUS hearings.

So, Leahy, who believes Stevens is a model jurist, will likely ask many piercing questions (How evil is corporate America? Nixon evil or merely Nazi evil?) in defense of average Americans.

But I wonder if the average American believes, like Justice Stevens, that an unelected federal agency like the Environmental Protection Agency should bypass Congress and, by fiat, regulate carbon dioxide, a chemical compound that permeates everything, without any consideration for cost or imposition or the electorate? ...

Do they believe, like Justice Stevens, that government should continue to use racial quotas and preferences rather than allow citizens the freedom to succeed or fail on their own merits — or even their own luck — rather than color of their skin? ...

It's no mystery why Leahy would want to turn the tables on conservatives and make the confirmation hearing about corporations rather than the Constitution or the reckless manner in which justices like Stevens treat it. I would do the same if my agenda's success was intricately tied to the pliability of the document.

Obamacare and Privacy Rights

The first private lawsuit has been filed challenging the constitutionality of Obamacare. In addition to the general arguments against Obamacare, i.e. Commerce Clause objection, it brings up the privacy issue inherent in turning over one's medical information to an insurer.

You still have to give a big, scary, mean corporation a lot of private medical and psychological information about yourself and your family. Then, forever after, the insurance corporation’s bureaucrats will gather this private information without even bothering to let you know. As our Complaint states:

Moreover, compelling Plaintiffs to enter into a private contract to purchase insurance from another entity will legally require them to share private and personal information with the contracting party. Specifically, by requiring Plaintiffs to abide by the Act’s individual mandate, Congress is also compelling Plaintiffs to fully disclose past medical conditions, habits and behaviors. Not only will the insurer be privy to all past medical information, Congress’s individual mandate will, by necessity, allow the compelled insurer access to Plaintiffs’ present and future medical information of a confidential nature. If judicially enforceable privacy rights mean anything, then private and confidential medical details certainly merit Constitutional protection. Plaintiffs should not be forced to disclose the most intimate details of their past, present and future medical information.
Do you have an STD? How many abortions have you had? How about a sexual dysfunction? Did your

father or mother have cancer? Do you have a birth defect? Have you ever been prescribed drugs for a mental condition, such as anxiety or depression? There are many reasons people have concerns over their medical privacy. The desire to keep one’s medical history private is universal.

I think this is an interesting angle that perhaps has more legs than other arguments for the reasons that Michael Barone points out in the column linked below. At the very least, I would love to see the liberal Justices uphold the mandate and attempt to square the privacy concerns inherent in the individual mandate with Roe and its progeny. Should make for some entertaining mental gymnastics.