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January 2011

January 7, 2011
Effort Ongoing to Punish Iowa Justices over Marriage Equality Decision
The effort in Iowa to oust state Supreme Court justices who voted in favor of a constitutional right to same-sex marriage did not end last fall at the ballot box when voters removed three of the justices who supported equality, writes Bert Brandenburg in an op-ed for The Washington Post.
Brandenburg, executive director of Justice at Stake, notes that organizers behind the campaign against the Iowa justices have "vowed to impeach and remove the court's four remaining justices, who weren't up for election in November."

Brandenburg continues:

The debate may have started over same-sex marriage, but the specter of impeachment has transformed it into an assault on constitutional government. Impeaching judges to redress political grievances would trigger a political circus that would paralyze government and undermine courts. Witch hunts against judges could also threaten state economies by driving out investments that create jobs, since businesses count on stable courts to settle disputes.

But there are deeper reasons why Iowans and Americans elsewhere need to catch their breath and avoid waging war on the courts.

Impeachments of judges were not designed as a tool for this kind of political disagreement, and the reason is essential to our democracy. If courts can't make tough calls, they won't be able to uphold the Constitution and protect our rights.

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Tags:
Access to Justice, LGBT issues, Constitutional Interpretation and Change, Equality and Liberty, Bert Brandenburg, Iowa retention vote, Iowa Supreme Court justices, Justice at Stake, 1st Circuit
January 7, 2011
House Republicans Push Attack on Health Care Law, Ignoring Budget Office Report
Many new members of the U.S. House of Representatives came to power expressing outrage over the federal deficit. Apparently, however, repealing the landmark health care reform law, the Affordable Care Act, is more pressing even if doing so adds the nation's debt.
The Congressional Budget Office, described by The New York Times as the "non-partisan budget scorekeepers in Congress," said that repealing the health care law would "ratchet up the federal deficit by about $230 billion over the next decade and leave 32 million more Americans uninsured," The Washington Post reports. The CBO report was rejected by the House Republican leadership as it presses forward to vote on a measure to repeal the law. "C.B.O. can only provide a score based on the assumptions that are given them" House Speaker Boehner said in dismissing the analysis.

The Post continues:

Specifically, the CBO, in what it called a preliminary analysis, said the law's repeal would cost $145 billion by 2019 and $230 billion by 2021, then swell after that, because various money-saving and revenue-raising provisions would be undone. The 32 million uninsured Americans refers to the number predicted to gain coverage under the law.

A spokesman for Rep. Louise Slaughter, the outgoing Rules Committee chair, told Politico that House Republicans repeal bill allows them "to pretend that their campaign promise to repeal the health care bill will have no cost - their resolution simply instructs the House to ignore the trillion dollar increase in the deficit that will result."

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Tags:
Economic inequality, Economic, Workplace and Environment Regulation, Affordable Care Act, Congressional Budget Office, Health Care Reform, 1st Circuit
January 6, 2011
Despite its Rhetoric, Tea Party is a Tool of Corporate Interests, Report Says
Although many Tea Partiers proclaim to be populists and staunch defenders of the Constitution, a look behind their lofty rhetoric reveals yet another political group devoted to corporate interests, according to a new study by Jamie Raskin, a Maryland state senator and law professor at American University.
Raskin, also a senior fellow at People For the American Way, writes in "Corporate Infusion: What the Tea Party's Really Serving America," that the "Tea Party movement dresses up its agenda in populist, constitutional and libertarian rhetoric but these gestures are almost always in service of a conservative corporate agenda."

A century ago, Raskin notes, populists fought "against the ‘coercive potential of the emerging corporate state,' in the words of historian Lawrence Goodwyn (Democratic Promise, 1976). They fought hard for the Constitution to be a charter of democratic rights, freedoms and powers that could enable the people to achieve collective social progress."

Moreover, Raskin notes the "striking historical irony" of the movement's use of the Tea Party moniker.

Raskin writes:

The original Boston Tea Party was a mass popular movement against the special favors and subsidies that the British parliament conferred upon the East India Company, a rapacious corporation that cultivated cozy relations with politicians and an official monopoly on trade with the Far East. When the managers of the East India Company found themselves on the verge of bankruptcy because of their wild and predatory behavior, the Parliament bailed them out by passing the Tea Act of 1773, which exempted the company from having to pay any and all of the taxes that England imposed on colonial merchants, thus essentially extending the company's monopolistic favor to North America.

This act of corporate welfare and favoritism on behalf of a corporate giant with no connection to the towns and farms of the local communities --not unlike the sweetheart deals and bail-outs regularly cooked up in our time for major corporations-harmed local merchants and was an assault on fair trade in the colonies . It aroused an enormous public fury. Opposition to the bloated subsidies for the East India Company exploded in a spectacular outbreak of anti-British and anti-corporate civil disobedience on December 16, 1773 when patriots disguised as Mohawk Indians boarded three of the company's ships and poured the ample contents of the tea chests into Boston Harbor. This was the Boston Tea Party.

Today's 'Tea Party' movement arises in a moment of far greater corporate misfeasance and political corruption. However, it remains curiously silent on even the most shocking corporate crimes and depredations. These misdeeds have been made possible by deregulation, weak oversight, cozy relationships among government officials and lobbyists and executives, and the capturing of regulatory agencies by the regulated industries. A Tea Party that lived up to its honorable name today would have spent the 2010 election demanding that the government bring to justice the large corporations that caused far more harm to Americans over the last decade than the East India Company ever did.

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Tags:
Corporate governance, Economic inequality, Constitutional Interpretation and Change, corporate interests, Jamie Raskin, People For the American Way, Tea Party, 1st Circuit
January 6, 2011
Annotated Guide to Constitutional Debate, and the ‘Conservative Constitution’
Debate over the meaning and reach of the U.S. Constitution is flourishing, partly due to emergence of lawmakers aligned with the Tea Party, which claims to have cornered the market on constitutional scholarship.
In order to navigate the debate, The New York Times offers "an annotated guide to the clauses most revered, and disputed, by advocates on either side of the political spectrum," and Georgetown Law Center's David Cole provides a decidedly more cutting look at the situation by revealing "for the first time" the "Conservative Constitution of the United States of Real America," for The Washington Post.

The Times annotated guide touching on those "revered" and "disputed" portions of the Constitution includes sections on the Commerce Clause, the Reconstruction Amendments, the Necessary and Proper Clause and Executive Power. According to The Times, the Commerce Clause is "the biggest source of complaint for many Tea Party activists, which explains the emphasis on it during the nomination hearings for Elena Kagan, the court's newest Justices. The strictest of Tea Party interpretations argues that this clause was intended to govern only interstate transportation."

Cole, a leading constitutional scholar and professor of law at Georgetown University, notes today's reading of a version of the Constitution on the House floor as a "first step toward fulfilling the tea party's goal of ‘restoring' our nation's founding document," in a column for The Post, in which he also reveals, with tongue firmly planted in cheek, a conservative constitution for "Real America."

Cole's preamble is especially entertaining:

We, the Real Americans, in order to form a more God-Fearing Union, establish Justice as we see it, Defeat Health-Care Reform, and Preserve and Protect our Property, our Guns and our Right Not to Pay Taxes, do ordain and establish this Conservative Constitution for the United States of Real America.

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Tags:
Methods of interpretation, Constitutional Interpretation and Change, Constitution, constitutional interpretation, David Cole, Tea Party, 1st Circuit
January 6, 2011
Obama Nominates Seitz to Head OLC
Some eight months after ACS Board Member and constitutional law professor Dawn Johnsen withdrew her nomination in the face of Senate obstruction, President Barack Obama has made a second nomination for the top spot at the Department of Justice's Office of Legal Counsel.

Virginia Seitz, a frequent ACS participant and a partner in Sidley Austin's Washington, D.C. office, was nominated yesterday for the position of Assistant Attorney General, Office of Legal Counsel. Seitz focuses on appellate litigation before the federal courts and U.S. Supreme Court, and clerked for Judge Harry T. Edwards of the Court of Appeals for the D.C. Circuit and for Justice William J. Brennan.

Obama also renominated James Cole for Deputy Attorney General, but Cole is already performing the job because Obama made a recess appointment in December after the Senate failed to vote on Cole's nomination, Main Justice reports. The recess appointment allows Cole to serve for up to two years without being confirmed.

Obama's first nominee to the OLC, Johnsen, who worked in the Office of Legal Counsel during the Clinton administration, withdrew her nomination in April after a sustained Republican filibuster threat that lasted fourteen months. In June, she wrote an op-ed in The Washington Post emphasizing the urgency of filling the position with a confirmed nominee after six years in limbo.
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Tags:
Executive power, Federalism, Separation of powers, Separation of Powers and Federalism, Dawn Johnsen, Office of Legal Counsel, 4th Circuit