Friday morning briefing: Budget, taxation and representation

February 27, 2009

capitolfrontPresident Barack Obama unveiled his budget proposal this week, sending folks in the capital in numbers-crunching mode as they scrutinize the plan in search of the administration’s priorities. On Capitol Hill, a bill that would give bankruptcy judges the power to change the terms of mortgages in foreclosure proceedings hit a snag when Democratic lawmakers couldn’t quite hammer out all the details yesterday. Across the street, the Supreme Court justices conference today, and may serve up some fresh new grants of certiorari before the day is over.


‘Loaded’ voting bill passes: The Senate approved a bill to give the District of Columbia a seat in the House of Representatives. But the bill included an amendment that D.C. officials may not like too much: it repeals the District’s post-Heller gun restriction laws. (DCist, WaPo)

stevenssmileSeparation of powers: Justice John Paul Stevens doesn’t think Supreme Court justices should take their oaths in the White House. The practice, which has become popular with the most recent new justices, creates “incorrect symbolism” for the independent judicial branch, Stevens said. (AP)

State secrets in foreclosure crisis: The housing foreclosure crisis that has put millions of Americans out of their homes is being worsened by old, antiquated state laws that give homeowners far fewer legal protections than renters or credit card customers, according a new report from the National Consumer Law Center. (Lawyers USA)

Stimulating conversation: The recently enacted American Recovery and Reinvestment Act of 2009 contains several new tax credits and changes for both business and individual taxpayers. Most of the credits, however, are subject to income phase-outs. (Lawyers USA)

Short-term gains: Federal judges could get a pay post this year. Next year, not so much. (Legal Times)


The funniest justice, week 9: Ginsburg gets giggles

February 26, 2009

rbginsburgAt one point during Tuesday’s oral arguments in Carlsbad Technology v. HIF Bio, Justice Ruth Bader Ginsburg asked about the Court’s 1995 case Things Remembered, Inc. v. Petrarca.

“I looked again at Things Remembered, and it turned out to be just as I remembered it,” she said, drawing laughs from the crowd.

That was one of two laughs that the normally serious Ginsburg earned this week in her much anticipated return to the bench after cancer surgery, showing that her sense of humor is also healthy.

Meanwhile, the race for the title The Funniest Justice has tightened again this week, as quips by Chief Justice John G. Roberts, Jr. and Justice Stephen Breyer brought them a little bit closer to possibly overtaking Justice Antonin Scalia, who usually runs away with the title. (To be fair, Scalia’s normally booming baritone voice seemed quieter – and a bit hoarse – this week. Perhaps  a cold is affecting his funny bone?)

Here are the laugh standings after nine weeks of oral arguments:

Justice Antonin Scalia: 30

Justice Stephen Breyer: 24

Chief Justice John Roberts: 23

Justice David Souter: 10

Justice Anthony Kennedy: 9

Justice John Paul Stevens: 7

Justice Ruth Bader Ginsburg: 3

Justice Samuel Alito: 2

Justice Clarence Thomas: 0 (Thomas hasn’t made a remark during oral arguments since Feb. 22, 2006).

In First Amendment ruling, Scalia kills two clauses with one stone

February 25, 2009

Today the Supreme Court ruled that a permanent monument erected in a public park is a form of governmental speech, and is therefore not subject to scrutiny under the First Amendment’s Free Speech Clause.

10commThe closely-watched case Pleasant Grove City v. Summum involved a bid by the religious group Summum to erect a monument containing the Seven Aphorisms of Summum in a Utah park where several other monuments, including one bearing the Ten Commandments, stood. When the town denied the groups’ request, the group launched a First Amendment action.

But the Court – in a decision that was unanimous, yet fractured with concurrences citing different legal justifications for the outcome – ruled in favor of the town. In an opinion authored by Justice Samuel Alito, Jr., the Court found that the process municipalities take in deciding which monuments are to be erected in public parks shows that it is government speech, and therefore not subject to Free Speech challenges.

Reading the decision, it occurred to DC Dicta that the town may have traded one battle for another: if the Ten Commandments monument is government speech, does it run afoul of the Establishment Clause of the First Amendment?

scalia1In a concurrence, Justice Antonin Scalia says emphatically: “No.”

“The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire,” Scalia wrote in the concurrence in which Justice Clarence Thomas joined. “Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.”

Scalia cited a 2005 case in which the Court rejected a similar claim brought in connection with another Ten Commandments monument deemed to be government speech.

“The city can safety exhale,” Scalia wrote. “Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary-and, yes, even its Ten Commandments monument-without fear that they are complicit in an establishment of religion.”

Today the Court also ruled in the case Pacific Bell Telephone Co. v. LinkLine Communications that a price-squeeze claim may not be brought under §2 of the Sherman Act when the defendant has no antitrust duty to deal with the plaintiff at wholesale.

The new argument against the death penalty: It costs too much

February 25, 2009

As states around the nation struggle to stretch their budgets to cover payrolls and expenses in this bad economy, opponents of the death penalty are pushing states to repeal the punishment – to save cash.

In Colorado, Kansas, Nebraska, New Hampshire, Maryland, Montana, New Mexico and other states, the discussion around bills seeking to end capital punishment is focusing on dollars and cents.

New Mexico Gov. Bill Richardson, a longtime supporter of the death penalty, said he is considering signing a bill there seeking to end capital punishment for a number of reasons. But the economic argument is “a valid reason in this era of austerity and tight budgets,” he said, according to The New York Times.

Opponents of ending capital punishment call the economic argument short-sighted, adding that the cost of increased crime down the road could dwarf any savings.

Supremes rule on gun law, Indian land case, and union First Amendment claim

February 24, 2009

supremesA conviction for a misdemeanor violent offense against domestic partner is enough to trigger the Federal Gun Control Act, which prohibits the possession a firearm, even where a domestic relationship was not a predicate of the underlying offense, the U.S. Supreme Court ruled today.

That ruling in U. S. v. Hayes was one of three decisions handed down by the U.S. Supreme Court this morning.

In Carcieri v. Salazar, the Court held that the federal government did not have the authority to take a 31-acre parcel from the Narragansett Tribe and hold it in trust under Indian Reorganization Act, because the tribe wasn’t in existence when the statute went into effect.

And in Ysursa v. Pocatello Ed. Assn., the Court held that an Idaho law allowing payroll deductions for general union dues but prohibiting deductions for union political activities does not infringe the unions’ First Amendment rights.

Kagan in her own words

February 24, 2009

elenakaganElena Kagan’s nomination for solicitor general is set to go before the senate for a confirmation vote this week.  The Senate Judiciary Committee has published a series of supplemental answers submitted by Kagan in response to several members’ questions. Some excerpts follow.

On the death penalty:

“I am fully prepared to argue, consistent with Supreme Court precedents, that the death penalty is constitutional. As Solicitor General, I would represent the interests of the United States, as expressed in legislation and executive policy. Like other nominees to the Solicitor General position, I have refrained from providing my personal opinions (except where I previously have disclosed them), both because these opinions will play no part in my official decisions and because such statements of opinion might be used to undermine the interests of the United States in litigation. But I can say that nothing about my personal views regarding the death penalty (relating either to policy or law) would make it difficult for me to carry out the Solicitor General’s responsibilities in this area.”

On Kennedy v. Louisiana, in which the Supreme Court held that imposing the death penalty for child rape violates the Eighth Amendment:

“I do not think it comports with the responsibilities and role of the Solicitor General for me to say whether I view particular decisions as wrongly decided or whether I agree with criticisms of those decisions. The Solicitor General must show respect for the Court’s precedents and for the general principle of stare decisis. If I am confirmed as Solicitor General, I could not frequently or lightly ask the Court to reverse one of its precedents, and I certainly could not do so because I thought the case wrongly decided. There are circumstances, however, in which the Solicitor General properly can petition the Court to reconsider a decision. Relevant to this inquiry are whether a rule of law has been found unworkable, whether subsequent legal developments have left the rule an anachronism, or whether premises of fact are so far different from those initially assumed as to render the rule irrelevant or unjustifiable. The last of these factors would seem the one most potentially relevant to the Kennedy v. Louisiana decision. But I currently do not know enough about this decision or the facts and circumstances surrounding it to say whether I would ask the Court to reconsider it if I were confirmed as Solicitor General; nor would I make this determination without going through the extensive process that the Solicitor General’s office typically uses in such cases.”

On other Court decisions, including the Second Amendment handgun ban case D.C. v. Heller:

“As noted earlier, the Solicitor General owes important responsibilities to the Court, one of which is respect for its precedents and for the general principle of stare decisis. I do not think it would comport with this responsibility to state my own views of whether particular Supreme Court decisions were rightly decided. All of these cases are now settled law, and as such, are entitled to my respect as the nominee for Solicitor General. In that position, I would not frequently or lightly ask the Court to reverse one of its precedents, and I certainly would not do so because I thought the case wrongly decided.”

On judicial activism, and whether the courts should take an active role in policy creation:

“I do not agree with this view. I think it is a great deal better for the elected branches to take the lead in creating a more just society than for courts to do so.”

On what she would do if she disagrees with the president of attorney general on what position to take on a case:

” If I am confirmed and I disagree with the President on the position to take in a case for which the Solicitor General’s office is responsible, I would do my best to persuade him of the correctness of the office’s views or the appropriateness of deferring to the office. (I believe that if the disagreement were with the Attorney General, a natural step would be to appeal to the President.) If the disagreement were to continue, I would consider the nature of the case, the nature of the disagreement, and the full range of ways to deal with the disagreement. I should clarify here that the critical question is not what would happen if I “personally” disagree with the President, because my personal views would be irrelevant; the critical question is what would happen if the President and I were to disagree on the position that will advance the long-term interests of the United States, which is the Solicitor General’s client. That is the only basis on which I would act as Solicitor General, and so that is the only ground on which disagreement between myself and the President might present itself. If I believe this disagreement goes to a highly material matter – a matter, for example, that would involve me in failing to fulfill my essential obligations to the Court or Congress – I would have to resign my office. Needless to say, I do not foresee any significant likelihood that this will happen. But I believe the Solicitor General needs to be able to walk away from the job when her assessment of her role and the obligations attendant on that role differs significantly from those of the President.”

Food regulation overhaul could be on tap

February 24, 2009

peanutsHere’s a trivia question for you: What federal agency is in charge of keeping the nation’s food safe?

If you said the Food and Drug Administration, you only get partial credit.

That’s because the FDA is one of 15 federal agencies that have some food safety enforcement authority – authority granted by more than 30 different federal laws. Still, situations such as the recent salmonella outbreak in peanut butter products happen.

Some lawmakers think it’s a too-many-cooks-in-the-kitchen problem, and they have been pushing for a overhaul of the nation’s food regulation system to create a single, combined food safety agency.

“There is no one person, no individual today who is responsible for food safety,” Rep. Rosa DeLauro said to the AP. “We have an immediate crisis which requires a real restructuring.”

In the past such proposals went nowhere due to opposition from the White House. But now, resident Barack Obama’s new agriculture secretary, Tom Vilsack, said he is behind it. “You can’t have two systems and be able to reassure people you’ve got the job covered,” Vilsack told the AP.

As Lawyers USA has reported, the recent salmonella outbreak has led to a plethora of litigation (see here, here and here for related stories).