Late June Decisions

No one can have a satisfying summer vacation if there’s unfinished business to think about. Unresolved issues generate too much background noise. Vague worries – and the thought that something will go terribly wrong when the dreary world starts up again in September – can ruin the best sunny day. It’s best to clear the deck in June, which is what the Supreme Court does each June, handing down definitive rulings on the big scary issues, and then getting the hell out of town, fast. What’s done is done, and with any luck, come September, no one will care about any particular June decision. There will be other issues then, and what was decided in June will seem to be “settled law” – worth no more than a shrug.

There was the decision in the big copyright case – a case that turned almost entirely on the fact that that start-up, Aereo, was retransmitting television signals, which are covered by a very specific statute. They were explicitly in the business of retransmitting content that was almost one hundred percent copyrighted – and they cannot do that. Yeah, they said they were just selling antennas and mass storage, but that argument didn’t fly – they were streaming other people’s content, for their own profit. What did they expect? That one was easy, even if some tech-heads, who hold that information wants to be free, and should be, were unhappy. That’s okay, they’ll think of some other clever workaround, but the police are out of luck now – “The Supreme Court brought the constitutional right of personal privacy into the digital era Wednesday, ruling unanimously that police may not search a smartphone or similar device without a warrant from a judge.”

That’s a bigger deal, and Tim Lee argues that this decision protecting cell phones from warrantless searches might signal a turning point for the Supreme Court’s attitude toward digital information in general:

The government has typically pursued a simple legal strategy when faced with digital technologies. First, find a precedent that gave the government access to information in the physical world. Second, argue that the same principle should apply in the digital world, ignoring the fact that this will vastly expand the government’s snooping power while eroding Americans’ privacy. …

The government hoped the Supreme Court would take this same narrow, formalistic approach in this week’s cell phone privacy case. It wanted the justices to pretend that rifling through the vast quantity of personal information on a suspect’s cell phone is no different from inspecting other objects that happen to be in suspects’ pockets. But the Supreme Court didn’t buy it.

Here’s the difference:

The Supreme Court clearly recognizes that in the transition from information stored on paper to information stored in computer chips, differences of degree can become differences of kind. If the police get access to one letter or photograph you happen to have in your pocket that might not be a great privacy invasion. If the police get access to every email you’ve received and every photograph you’ve taken in the last two years, that’s a huge invasion of privacy.

Kevin Drum riffs on that idea:

This is a problem that’s been getting more acute for years. The basic question is whether courts should recognize the fact that digital access to information removes practical barriers that are important for privacy. For example, the state of California keeps lots of records about me that are legally public: DMV records, property records, birth and marriage records, etc. In the past, practically speaking, the mere fact that they were physical records provided me with a degree of privacy. It took a lot of time and money to dig through them all, and this meant that neither the government nor a private citizen would do it except in rare and urgent cases.

In the digital world, that all changes – if a police officer has even a hint of curiosity about me, it takes only seconds to compile all this information and more. In a technical sense, they don’t have access to anything they didn’t before, but in a practical sense I’ve lost a vast amount of privacy.

So this is a big deal:

In the past, the Supreme Court has rarely (never?) acknowledged this. In yesterday’s cell phone case, they not only acknowledged it, they acknowledged it unanimously. Is it possible that this means they’ll be applying a more skeptical view to similar cases in the future? Or even revisiting some of their past decisions in light of the continuing march of technology? We don’t know yet, but it’s certainly possible. Maybe the Supreme Court has finally entered the 21st century.

They are nine old farts who probably think those in-dash cassette players are nifty, but if Drum is right, that would be nifty and cool.

That’s the positive, and Jessica Valenti in the Guardian speaks to what’s not cool:

Imagine trying to walk into a building, trying to get a medical treatment – and someone screams at you. Someone is two inches from your face – two feet from the front door – and that someone is videotaping you, calling you a whore. There’s ketchup poured in the snowbanks around you, made to look like spurted blood. You try to take a step forward, but people block your way, yelling that you’re going to be “mother to a dead baby”. They hold signs in your faces, whisper “murderer” in your ear as you pass. Maybe they shove you.

Don’t believe portrayals to the contrary – from anti-choice activists and the news media – that these kinds of protestors outside abortion clinics are not grandmas praying, or kindly “counselors” who just want to talk reasonably to women. These people wait outside clinics to shame and to harass; they are there to scare.

Despite the horrifying experiences of women across the country trying to obtain abortions, the US Supreme Court ruled unanimously on Thursday that a Massachusetts law providing a 35-foot buffer zone outside of clinics is unconstitutional, and violates protesters’ first amendment right to engage in “personal, caring, consensual conversations” with women seeking abortions.

Yeah, right – harassment and violent intimidation are free speech, as long as your don’t punch the other party in the nose or just pull out a gun and shoot them dead. That’s still illegal, much to the disappointment of the pro-life crowd – but free speech is free speech. Maybe so, but consider a hypothetical. If I approach you and point an assault rifle at you, along with twenty of my friends who do the same, and call you a baby-killer and scream in your face that you should die, I’ve “done” nothing to you. I might also consider that “personal, caring, consensual conversation” too – from my point of view, and of course consider it a consensual conversation – because you’re right there on the street. You, on the other hand, might see it differently.

Damn – the court will now have to decide what constitutes a “personal, caring, consensual conversation” in public discourse. How the hell are they going to decide that?

Think of the old gangster movies. That’s a nice little wife you’ve got there. It’d be a shame if anything happened to her. That’s a personal and caring comment. How else can you read those words? The words mean what they mean. Can a court insist on a sinister interpretation? On what basis could they – an unusual context or on subtle mind-reading? And of course the abortion clinic is a special context in this decision. This isn’t over yet.

And then there was this:

The Supreme Court on Wednesday limited the president’s power to fill high-level vacancies with temporary appointments, ruling in favor of Senate Republicans in their partisan clash with President Barack Obama.

The court’s first-ever case involving the Constitution’s recess appointments clause ended in a unanimous decision holding that Obama’s appointments to the National Labor Relations Board in 2012 without Senate confirmation were illegal.

Kevin Drum again provides context:

Republicans had argued that the Senate wasn’t really in recess when Obama made those appointments. Obama argued that, in practice, the Senate was indeed in recess, and simply gaveling open a few pro forma “sessions” during the break didn’t change that. In this case, the justices decided to go with the letter of the law, and Obama lost.

This result doesn’t bother me much. I actually agree with Obama that these pro forma sessions are shams, but sometimes the law allows you to get away with technicalities like this. In any case, it’s good that we have a definitive ruling here.

On the other hand, the related ruling on a tea party hobbyhorse – that virtually all recess appointments are illegal anyway because the only real recess is the annual end-of-year break – is more problematic. This one struck me as completely ridiculous and contrary to 200 years of precedent, but the court rejected it only by a 5-4 margin. That’s four votes for an entirely invented bit of nonsense, and that’s not a good sign.

This was, then, a limited victory for the Republicans, and they knew it, which might have something to do with what Talking Points Memo’s Sahil Kapur discusses here:

House Speaker John Boehner (R-OH) told colleagues on Wednesday he’ll bring up legislation “in the coming weeks” to authorize a lawsuit against President Barack Obama for allegedly exceeding his executive authority and failing to faithfully execute the law.

The move appears to be unprecedented and is already facing allegations from Democrats of political gamesmanship. Experts say the House of Representatives has never before endorsed a lawsuit against a President. Boehner declined to say which executive actions he’ll challenge when he was asked Wednesday, nor did he get specific in his memo to colleagues declaring his intentions.

“We elected a president, Americans note; we didn’t elect a monarch or king,” Boehner wrote.

Well, that’s unusual, or it isn’t:

Norm Ornstein, a congressional historian at the American Enterprise Institute, said “there is no precedent that I know of for Congress suing over executive orders,” but he noted that there have been lawsuits by ad hoc members of Congress against several presidents.

This gets tricky:

The first question is whether the House has standing to sue, given that the Democratic-led Senate won’t go along with a lawsuit. Precedent for that is mixed. In the 1997 case Raines v. Byrd, the Supreme Court ruled that six congressmen challenging a presidential line-item veto lacked standing to sue because they couldn’t prove injury. But in 2013, when the House majority sought to stand up for the Defense of Marriage Act, the Supreme Court granted standing, warning that it “poses grave challenges to the separation of powers for the Executive at a particular moment to be able to nullify Congress’ enactment solely on its own initiative and without any determination from the Court.”

A senior Republican aide posited the DOMA precedent and a favorable House vote should be enough to ensure that the GOP has its day in court against Obama’s executive actions.

David Rivkin, a former Justice Department lawyer under Presidents Ronald Reagan and George H. W. Bush, made a similar case earlier this year when exploring legal options to stop Obama’s executive orders.

“If congressional standing is denied in such cases, there will be no other way to check such presidential usurpation short of impeachment,” he wrote in a joint op-ed with law professor Elizabeth Price Foley. “As the court observed in Clinton [v. City of New York], the president does not have ‘unilateral power to change the text of duly enacted statutes.'”

So it’s this or impeachment. Boehner is doing Obama a favor, even if this is a long shot:

If the courts grant standing, the next question is whether such a legal challenge has merit to succeed. The answer is unknowable without specifics on which actions would be challenged and under what legal grounds, something Boehner did not reveal during a news conference or in his memo. Republicans have raised hell about the president’s executive moves to tweak Obamacare, grant some leniency to young undocumented immigrants and propose rules to limit climate-warming pollution from coal-fired power plants.

Obama may have the right to have done those things. He is charged with administering the laws Congress has passed, and he’s doing that, so this about how he’s doing that, not that he’s doing that – so all this is open to interpretation. Maybe he should have told the starting pitcher to take a shower and brought in the young reliever with the killer fastball, but baseball managers are paid to make those decisions – and this might be like that – but something else seems to be going on:

Politically the issue is tricky for Boehner. It comes on the heels of the shocking defeat of House Majority Leader Eric Cantor (R-VA) in a Republican primary, followed by the election of a more conservative GOP leadership team. Thirst for a confrontation with Obama is rising and Boehner feels pressure to quench it. It remains to be seen whether this lawsuit will satisfy Republicans’ hunger or whether it will empower the fervent anti-Obama wing of the party which has toyed with the idea of impeaching the president.

“This is not about impeachment,” Boehner told reporters.

The White House and Democrats fumed the lawsuit was a partisan stunt to gin up the Republican base and waste taxpayer money.

The Washington Post’s Jonathan Capehart sees it this way:

After going out on a not-so-wobbly limb to suggest that Republicans would push to impeach President Obama if they succeeded in retaking the Senate, George Will’s Sunday column read like a real threat. Fed up with what he views as Obama’s “offenses against the separation of powers,” the conservative columnist advocated that Congress sue the executive branch to stop a lawless president… At the end of his column, Will advocates for the courts to allow Congress to sue the president if only to keep it from utilizing ‘”the cumbersome and divisive blunderbuss process of impeachment.” He says such a move “should be a rare recourse.” Then there was this key line: “Furthermore, it would punish a president for anti-constitutional behavior but would not correct the injury done to the rule of law.” For many Republicans, the punishment of impeachment is exactly what they want. This lawsuit threat is just the first step.

So, the idea came from George Will, and Boehner is throwing his rabid base a bone – knowing that impeaching Democratic presidents is what ruins Republicans (see Bill Clinton) – but the base thinks this is just the first step and Obama will be gone soon. What does the sign at the zoo say? Don’t feed the bear? He (or even worse, she) may bite you.

Christopher Ingraham wonders what’s going on here:

Back in February I analyzed the numbers on executive order frequency and found that Obama has actually been less likely to resort to the pen and phone than any president since Grover Cleveland. Just a few days ago, John Hudak at Brookings updated the chart through June 17 of this year and found that those numbers haven’t budged, at all. … As John Hudak writes, “claims that President Obama is issuing more than his predecessors is just flat wrong—and continues to be a talking point completely at odds with real data.”

And there’s Brian Beutler with this regarding John Boehner:

The fact that he hasn’t decided which laws the president isn’t faithfully executing, or which of those ill-executed laws merits legal action, not to mention his indifference to executive overreach during the Bush years – all pretty much gives the game away. This really isn’t about the integrity of the legislature, and in a way, it really is about impeachment.

Paul Waldman simply calls this a kind of impeachment-lite:

My guess is that the suit will throw in every process-complaint the Republicans have had over the last five years, because it’s mostly about Boehner’s right flank, both in Congress and in the Republican electorate. Even if the suit gets thrown out of court, Boehner will still be able to say to the eternally angry members to his right, “Hey, I’m the guy who sued Obama! I hate him as much as you do!”

Philip Bump offers this:

This is generally being interpreted as Boehner expressing frustration about executive orders. That’s incorrect.

At least, that’s not the whole picture. This is, really, a fight about executive action. … In his letter to his peers, Boehner never mentions executive orders. “President Obama has circumvented the Congress through executive action,” he writes, without pointing to specific examples. The fight isn’t over executive orders; it’s over executive authority. That’s a much different – and much bigger – battle.

Ah, the president doesn’t get to decide things. That’s not his job. Congress decides things. The president does exactly what they tell him to do – no more, no less. That’s an interesting idea. The Supreme Court had better have a relaxing summer vacation, because they’ll be busy in the fall – and if they don’t rule for Boehner and the Republicans, Boehner will sue them too.

Waldman is not amused:

It’s irresistible to charge Republicans with hypocrisy, especially given the fact that they were unconcerned when the Bush administration pushed so vigorously at the limits of presidential power. Bush and his staff regularly ignored laws they preferred not to follow, often with the thinnest of justifications, whether it was claiming executive privilege to ignore congressional subpoenas or issuing 1,200 signing statements declaring the president’s intention to disregard certain parts of duly passed laws. (They pushed the limits of vice presidential power, too – Dick Cheney famously argued  that since the vice president is also president of the Senate, he was a member of both the executive and legislative branches, yet actually a member of neither and thus not subject to either’s legal constraints. Seriously, he actually believed that.)

Yeah, Cheney did argue that – not that it mattered – and there’s this:

According to Erwin Chemerinsky, the dean of the University of California Irvine Law School, the speaker of the House does not have the ability to sue the president in this situation, even if Congress says he does. Chemerinsky says “standing,” the doctrine that allows a person to file a lawsuit in federal court by demonstrating that real harm has been caused to them, is defined by the Constitution. As a result, even if Congress passes a law, or in this case a resolution, which only requires approval by the House, it will not be binding on federal courts, as the Constitution trumps any law, let alone a resolution, and does not give members of Congress the ability to sue if they cannot prove real harm.

Lawyers talk funny, don’t they? But the idea is simple. You can’t sue for damages if there are no damages, but even so, Charles Pierce says bring it on:

Let us have a debate, then. Let us compare what Boehner says the president has done – while, by the way, he has done less than almost all of his immediate predecessors – and then let’s compare everything his House hasn’t done because it doesn’t like the president, his party, his politics, or (sadly) his race. Let us determine who is “faithfully executing” the jobs for which they all get paid. Hell, let us determine who’s actually interested in governing the country, or is counsel for the plaintiff going to argue that, if the country elects an obstructionist Congress, and that Congress holds together, then the country need not necessarily be governed by anyone at all?

That would be an interesting point to be litigated – if, again, this were a serious legal action, and not the latest and most elaborate clown show staged by a threadbare political circus.

Well, John Boehner wanted to make things clear before summer kicked in, but unfortunately, unlike the Supreme Court, he can’t lay down the law – and he couldn’t be clear either. He’s unhappy? Everyone is. That’s what summer vacation is for.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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