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Justice Thomas: ‘Honor Scalia by Reining in Government’

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Thomas told 1,700 people at a dinner in honor of Scalia that the Supreme Court has too often granted rights to people that are not found in the Constitution.

Supreme Court Justice Clarence Thomas called on fellow conservatives Thursday to continue the work of the late Justice Antonin Scalia to keep the power of the courts and other branches of government in check.

Thomas told 1,700 people at a dinner in honor of Scalia that the Supreme Court has too often granted rights to people that are not found in the Constitution. He cited the decision in 2015 that made same-sex marriage legal across the country.

Thomas said he and his longtime friend and colleague formed an “odd couple” of a white New Yorker and a black man from Georgia.

He paraphrased Lincoln’s Gettysburg address to exhort the audience to “be dedicated to the unfinished business for which Justice Scalia gave his last full measure of devotion.”

Thomas and Supreme Court Justice Samuel Alito were the bookends of the Thursday meeting of the Federalist Society, at which conservatives were reveling in Donald Trump’s unexpected victory in the presidential election because it is likely to result in the appointment of conservative judges to the Supreme Court and other federal courts.

Justice Scalia testifies on Capitol Hill in Washington

Alito issued his own rallying cry to conservatives, describing religious freedom and gun rights as among “constitutional fault lines,” important issues at stake in the federal courts.

The conference of conservatism’s leading legal lights took on a new air of importance with Trump’s victory, and included a list of judges the president-elect has named as candidates to fill the vacancy created by Scalia’s death last February.

In their remarks, Thomas and Alito didn’t mention the election or the vacancy, rather using the platform to pay tribute to Scalia, a longtime colleague and conservative ally in high-court battles on hot-button social and political issues. Read the rest of this entry »

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David Harsanyi: GOP Has A Duty To Reject Obama’s SCOTUS Pick

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Republicans should follow Sen. Barack Obama’s advice and filibuster the president’s SCOTUS nominee.

headshot4-001David Harsanyi writes: Although nothing in his political history suggests magnanimity, Barack Obama may surprise us by nominating one of those moderate-consensus types who would provide some of that national healing he promised us eight years ago. But he’s certainly under no constitutional obligation to do so. He can nominate whomever he pleases in the wake of the vacancy left by Antonin ScaliaAnd Republicans have plenty of precedent for rejecting his choice.

I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled.

You’ll notice, as well, that precedent only matters sporadically. Democrats were uninterested in historical guidance when they were shoehorning a massive generational reform through Congress without any consensus for the first time in history or filling imaginary recess appointments. When it works out for them they transform into strict traditionalists.

Whatever precedent says, if Republicans truly believe Obama has displayed a contempt for the Constitution, they have a moral obligation to reject his choice—whether it’s someone who argues in favor of book banning or enables abusive power. Because we’re not talking about good-faith disagreements over what the Constitution says anymore, we’re talking about a party that believes enumerated powers stand in their way.

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Contemporary liberalism is fundamentally opposed to any precedential restrictions that curb “progress.” Wilsonian progressives were skeptical of the Constitution and separation of powers, and so are modern progressives. Only the former had the decency to be honest. So why do we pretend otherwise?

[Read the full story here, at thefederalist.com]

Just like Wilson, Democrats argue that the Supreme Court is holding back many morally advantageous policies. What they do not do, and haven’t done for years, is offer any limiting principles (other than for few incidental partisan policies they happen to support for reasons have nothing to do with individual liberty). For them, process exists solely to further ethical policy (which they don’t believe could possibly be subjective).

(Photo: Karen Bleier, AFP Getty Images)

Even Donald Trump, who claims to believe America is limping towards extinction, felt the need during the last debate to claimed he would build consensus when applying trade and immigration policy rather than act unilaterally. There is no such inclination, not even rhetorically, on the Left. Just listen to the Democratic Party debates. Bernie Sanders’ litmus test for a Supreme Court nomination is pretty simple: the candidate must support restrictions on the First Amendment. Most Democrats agree.

Read the rest of this entry »


Supreme Court rules against EPA

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John Siciliano reports: The Supreme Court ruled 5-4 against Environmental Protection Agency pollution rules for power plants Monday, in a blow to President Obama’s environmental agenda.

The majority decision, written by Justice Antonin Scalia, said the EPA has to consider the costs of complying with the rules and sent the air pollution regulations back to the agency.

The EPA rules in question regulate hazardous air pollutants and mercury from coal- and oil-fired power plants, known as the MATS regulations. The regulations went into effect April 16. The utility industry had argued that the rules cost them billions of dollars to comply and that EPA ignored the cost issue in putting the regulations into effect.

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“EPA must consider cost — including cost of compliance — before deciding whether regulation is appropriate and necessary. It will be up to the agency to decide (as always, within the limits of reasonable interpretation) how to account for cost,” Scalia wrote in agreeing with the industry.

The decision will have repercussions for other EPA regulations that are key to Obama’s climate change agenda. The EPA will now have to examine the cost of compliance for the Clean Power Plan, which is at the heart of the president’s environmental agenda. Read the rest of this entry »


George F. Will: On Obamacare, John Roberts helps Overthrow the Constitution

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George F. Will writes: Conservatives are dismayed about the Supreme Court’s complicity in rewriting the Affordable Care Act — its ratification of the IRS’s disregard of the statute’s plain and purposeful language. But they have contributed to this outcome. Their decades of populist praise of judicial deference to the political branches has borne this sour fruit.

“Since the New Deal, courts have permitted almost any legislative infringement of economic liberty that can be said to have a rational basis. Applying this extremely permissive test, courts usually approve any purpose that a legislature asserts. Courts even concoct purposes that legislatures neglect to articulate.”

The court says the ACA’s stipulation that subsidies are to be administered by the IRS using exchanges “established by the State” should not be construed to mean what it says. Otherwise the law will not reach as far as it will if federal exchanges can administer subsidies in states that choose not to establish exchanges. The ACA’s legislative history, however, demonstrates that the subsidies were deliberately restricted to distribution through states’ exchanges in order to pressure the states into establishing their own exchanges.

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“The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power. Such power would result if its branches behaved as partners in harness rather than as wary, balancing rivals maintaining constitutional equipoise.”

The most durable damage from Thursday’s decision is not the perpetuation of the ACA, which can be undone by what created it — legislative action. The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.

[Read the full text here, at The Washington Post]

The court’s decision flowed from many decisions by which the judiciary has written rules that favor the government in cases of statutory construction. The decision also resulted from Chief Justice John G. Roberts Jr.’s embrace of the doctrine that courts, owing vast deference to the purposes of the political branches, are obligated to do whatever is required to make a law efficient, regardless of how the law is written. What Roberts does by way of, to be polite, creative construing (Justice Antonin Scaliadissenting, calls it “somersaults of statutory interpretation”) is legislating, not judging.

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” The paramount injury is the court’s embrace of a duty to ratify and even facilitate lawless discretion exercised by administrative agencies and the executive branch generally.”

Roberts writes, almost laconically, that the ACA “contains more than a few examples of inartful drafting.” That is his artful way of treating “inartful” as a synonym for “inconvenient” or even “self-defeating.”

Rolling up the sleeves of his black robe and buckling down to the business of redrafting the ACA, Roberts invents a corollary to “Chevron deference.”

Named for a 1984 case, Chevron deference has become central to the way today’s regulatory state functions. It says that agencies charged with administering statutes are entitled to deference when they interpret ambiguous statutory language. Read the rest of this entry »


BREAKING: Supreme Court Rules Obama Administration Can’t Make Catholic Group Obey Pro-Abortion HHS Mandate

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WASHINGTON D.C. – Steven Ertelt reports: The Supreme Court issued an order today preventing the Obama administration from forcing a Catholic group in Michigan to obey the HHS mandate that requires them to pay for abortion-causing drugs for their employees. This is the fifth time the staffphotos-482-rienziSupreme Court has rebuked the Obama administration and prevented it from making such a mandate.

“The government keeps making the same bad arguments and the Supreme Court keeps rejecting them – every single time. This is because the government can obviously come up with ways to distribute contraceptives without the forced involvement of Catholic ministries.”

— Mark , Senior Counsel of the Becket Fund for Religious Liberty

For the sixth time in a row, the Supreme Court took steps to protect another religious objector from the HHS mandate. It ordered a lower court to reconsider its ruling that denied a group of Catholic ministries in Michigan the freedom to follow their faith.staffphotos-601-e1414080373406

“That argument has always been absurd. Every time a religious plaintiff has gone to the Supreme Court for protection from the government’s discriminatory mandate the Court has protected them. That’s what happened to the Little Sisters of the Poor, Wheaton College, Notre Dame, and Hobby Lobby.”

— Lori Windham, Senior Counsel for the Becket Fund for Religious Liberty

“The government keeps making the same bad arguments and the Supreme Court keeps rejecting them – every single time. This is because the government can obviously come up with ways to distribute contraceptives without the forced involvement of Catholic ministries,” said Mark Rienzi, Senior Counsel of the Becket Fund for Religious Liberty, which filed an amicus brief in the case.

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“How many times must the government lose in court before it gets the message? For years now the government has been claiming that places like Catholic Charities and the Little Sisters of the Poor are not ‘religious employers” worthy of an exemption.’”

“As with the Supreme Court’s decisions in Little Sisters of the Poor and Hobby Lobby, this is a strong signal that the Supreme Court will ultimately reject the government’s narrow view of religious liberty.

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[Read the full text here, at LifeNews]

And it makes it less likely that lower courts will accept arguments the Supreme Court has rejected over and over and over again.”

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“The government really needs to give up on its illegal and unnecessary mandate. The federal bureaucracy has lots of options for distributing contraceptives–they don’t need to coerce nuns and priests to do it for them.”

— Lori Windham

As the Becket Fund noted, the Michigan Catholic Conference and other Catholic ministries brought their request to the Supreme Court after a surprising lower court decision that would have allowed large IRS fines against the ministries because they, based on their religious beliefs, cannot provide contraceptives and abortion-inducing drugs in their employee health plans. Read the rest of this entry »


FTCA Act Update: Supreme Court Eases Rules To Sue Federal Government For Malpractice

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The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

WASHINGTON (AP) — The Supreme Court on Wednesday made it easier for people to sue the federal government for negligence, in a decision that could affect military veterans with claims of medical malpractice.

“One case stemmed from a fatal traffic accident on Interstate 10 in Phoenix in which a car passed through a safety barrier into oncoming traffic. The plaintiff, Marlene June, represents the child of one of two people killed in the crash.”

The justices, voting 5-4, ruled in two cases the deadlines for filing such lawsuits can be extended if plaintiffs tried their best to comply or simply failed to learn about important information before a deadline.

“June claimed that the Federal Highway Administration made her wait more than two years before she was allowed to depose officials and uncover evidence that the barrier had failed a crash test.”

Justice Elena Kagan wrote the majority opinion that combined the cases and upheld rulings by the 9th U.S. Circuit Court of Appeals that said the deadlines were somewhat flexible under the federal law that deals with lawsuits against the government.

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The Obama administration argued that Congress intended the deadlines to be firm and that the government should not leave itself open to old claims indefinitely.

“The other case involved a Hong Kong woman who sued the Immigration and Naturalization Service after she was detained in Oregon, strip-searched and deported.”

But Kagan said Congress did not clearly indicate it wanted those deadlines to be iron-clad when it passed the Federal Tort Claims Act. “The time limits in the FTCA are just time limits, nothing more,” Kagan wrote. Judges have discretion to extend the deadlines, she said. Read the rest of this entry »


If birth control is “not your boss’s business,” why do you expect him to pay for it?

US Supreme Court hands down decision in Burwell v. Hobby Lobby

Liberals’ Hobby Lobby Doublethink

I’m particularly fond of the Game of Thrones reference. Read Jonah’s entire column here.

For National Review OnlineJonah Goldberg writes:

Abortion-rights protesters gathered outside the Supreme Court building on Monday holding signs that read “Birth Control: Not My Boss’s Business.”

“The notion that denying a subsidy for a product is equivalent to banning that product is one of the odder tenets of contemporary liberalism.”

Much to their chagrin, Supreme Court Justice Samuel Alito agreed in his ruling in the Hobby Lobby case.

double-think-clownOf course, that’s not how supporters of the government’s contraception mandate see it. They actually believe that birth control is their boss’s business, and they want the federal government to force employers to agree.

More on that later, but it’s first worth noting how we got here.

First, contrary to a lot of lazy punditry, there is no Obamacare contraception mandate. As my National Review colleague Ramesh Ponnuru notes, even President Obama’s liberal rubber-stamp Congress of 2009–10 never addressed — or even debated — the question of whether companies can be forced to provide contraceptive coverage. Department of Health and Human Services bureaucrats simply asserted that they could impose such a requirement. Indeed, “several pro-life Democrats,” Ponnuru adds, “who provided the law’s narrow margin of victory in the House have said they would have voted against the law had it included the mandate.”

“If I like to dress up as a character from Game of Thrones on weekends, pretending to fight snow zombies and treating my mutt like she’s a mystical direwolf, that’s none of my employer’s business. But if I ask my employer to pay for my trip to a Game of Thrones fan convention, I am asking him to make it his business.”

Moreover, Hobby Lobby never objected to covering birth control per se. It already covers 16 kinds of birth control for its employees. But it objected to paying for what it considers to be abortifacients, which don’t prevent a pregnancy but terminate one. The pro-abortion-rights lobby can argue that “abortion” and “birth control” are synonymous terms, but that doesn’t make it true. Read the rest of this entry »


Reality Check: Hobby Lobby Actually Lavishes Contraception Coverage on Its Employees

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For National Review OnlineDeroy Murdock notes:

The Left is foaming at the mouth over the Supreme Court’s Hobby Lobby decision this morning….

[Read the whole thing here]

Imagine that a woman starts work at Hobby Lobby tomorrow morning — July 1. She joins Hobby Lobby’s health care plan. It includes access, copay-free, to the following categories of FDA-approved birth-control:

  1. Male condoms
  2. Female condoms
  3. Diaphragms with spermicide
  4. Sponges with spermicide
  5. Cervical caps with spermicide
  6. Spermicide alone
  7. Birth-control pills with estrogen and progestin (“Combined Pill)
  8. Birth-control pills with progestin alone (“The Mini Pill)
  9. Birth control pills (extended/continuous use)
  10. Contraceptive patches
  11. Contraceptive rings
  12. Progestin injections
  13. Implantable rods
  14. Vasectomies
  15. Female sterilization surgeries
  16. Female sterilization implants (read more)

Extra credit: Hot Air’s Noah Rothman: ‘The Left Loses its Mind Over Hobby Lobby”

“I imagine the horrified shrieks that rose from the streets outside the Supreme Court on Monday as the decision in the Hobby Lobby case began to filter out into the crowd of liberal observers was reminiscent of those poor souls who watched helplessly as the Triangle Shirtwaist Factory fire claimed the lives of 146 young, female garment workers.

In fact, the similarities are eerie. It seems that liberal commentators have convinced themselves that, just as was the case in 1911, the courts and the country have deemed women to be of lesser value than their male counterparts. The distinction between these two eras, of course, is that while that argument could be supported in 1911, it exists only in the heads of progressives in 2014.” (read more)

 National Review Online – Hot Air


David French on Hobby Lobby: ‘The Left Is Weeping Hot, Bitter Tears, and It Should’

Indulgent Pulp Fiction Propaganda disguised as prestigious literature: Left-Wing Paranoia Peddling Author Margaret Atwood in a Twist

Margaret Atwood with a Twist: Margaret Atwood is the author of “Handmaiden’s Tale”: Deliciously Fun Third-Rate Trashy Left-Wing Paranoid Pulp Fiction. Hailed by Critics as Prestigious, Important Literature.

“For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties…”

For National Review OnlineDavid French nails it:

 [Read the whole thing here]

Andrew’s and Molly’s post reflecting the hysterical reaction on the Left to the Hobby Lobby decision makes for both entertaining and instructive reading. It’s entertaining because — regarding the issue they claim to care most about, access to contraceptives — the decision blocks exactly no one from obtaining the drugs they choose to purchase. There’s just slightly less free stuff on the market. This is hardly Handmaid’s Tale territory.

It’s instructive because it demonstrates the extent to which the Left is emotionally and ideologically committed to the power of the regulatory state. For some time, the Left has been selling the public and the courts on the notion that somehow the act of forming a corporation and opening for business operates as an effective waiver of your most basic liberties, including free speech, free exercise of religion, and virtually the entire panoply of property rights. In effect, your business is not “your” business at all, but instead all aspects of its operations exist at the whim of the state, and if the state wants to draft you into its child-killing abortion crusade — or wants to muzzle you during political campaigns – then you best salute and fall in line. Read the rest of this entry »


We Told You So: Religious Liberty Trumps Federally-Mandated Employer Birth Control Requirement

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For The Associated Press, Mark Sherman reports; A sharply divided Supreme Court ruled Monday that some companies with religious objections can avoid the contraceptives requirement in President Barack Obama’s health care overhaul, the first time the high court has declared that businesses can hold religious views under federal law.

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The justices’ 5-4 decision, splitting conservatives and liberals, means the Obama administration must search for a different way of providing free contraception to women who are covered under the health insurance plans of objecting companies.

“Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs.”

— Justice Alito

Justice Samuel Alito wrote in his majority opinion, over a dissent from the four liberal justices, that forcing companies to pay for methods of women’s contraception to which they object violates the 1993 Religious Freedom Restoration Act. He said the ruling is limited and there are ways for the administration to ensure women get the birth control they want. Read the rest of this entry »


State Power: Supreme Court Ruling Expands Police Authority in Home Searches

Justice Ruth Bader Ginsburg wrote the dissent in the police search case. (Nikki Kahn / Getty Images / August 29, 2013)

Justice Ruth Bader Ginsburg wrote the dissent in the police search case. (Nikki Kahn / Getty Images / August 29, 2013)

The LA Times’  David Savage reports:  Police officers may enter and search a home without a warrant as long as one occupant consents, even if another resident has previously objected, the Supreme Court ruled Tuesday in a Los Angeles case.

“Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it.”

— Justice Ginsburg

The 6-3 ruling, triggered by a Los Angeles Police Department arrest in 2009, gives authorities more leeway to search homes without obtaining a warrant, even when there is no emergency.

The majority, led by Justice Samuel A. Alito Jr., said police need not take the time to get a magistrate’s approval before entering a home in such cases. But dissenters, led by Justice Ruth Bader Ginsburg, warned that the decision would erode protections against warrantless home searches. The court had previously held that such protections were at the “very core” of the 4th Amendment and its ban on unreasonable searches and seizures.

Read the rest of this entry »