Sunday, July 5, 2015

Continuing a discussion of the Supreme Court's term

Authority of Law by James Earle Frasier

So now for the two Big Ones.

1) The Supreme Court's third big Obamacare case came down this June.

The Court's response to the first Obamacare challenge, you will remember, the NFIB decision of 2012, upheld the health-insurance mandate against the charge that it did not come within any one of the federal government's "enumerated" powers under the constitution. The decision, in the law's favor, held that it didn't come within the meaning of "commerce among the states" but that this doesn't matter all that much because it did come within the meaning of the taxing power. This vote came down 5 to 4.

The second challenge involved religious objections to the provision of certain types of health insurance. The opponents of the law won that one at the high court, 5 to 4, carving out a religion-based exception to the scope of the employer mandate. The winning bloc of five consisted of Justices Alito, Roberts, Scalia, Kennedy, and Thomas. This left Ginsberg, Breyer, Kagan, and Sotomayor in dissent. Personally, my expectation going into June 2015 was that the same five-Justice bloc would hold together to take another swipe at the over-all scheme via the issue of statutory interpretation raised in  the third challenge, King v. Burwell. 

I was wrong. The The court voted 6 to 3 to uphold the over-all statutory scheme, even though that required a generous reading of some poorly drafted language. The winning bloc this time consisted of Justices Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Last years' dissenters plus the Chief Justice and Kennedy.

The opinion was a much more sweeping affirmation of the statutory scheme than was necessary to get to that result. The court could have used Chevron reasoning, after all - it could simply have said, "in such matters of statutory construction, we defer to the administrative expertise of the relevant executive officials." That would have left the scheme in place, but would have left it subject to being overturned if the Republicans win the next election and the partisan loyalties of the relevant administration officials change. But it didn't.

Something else the majority could have done, but didn't, was invoke federalism arguments. This would have given a conservative slant to the decision, saying "a literal construction of the disputed phrase would leave the federal government too demanding vis-a-vis the states, so our duty to the federal-state balance is to avoid such a reading." Some observers expected such reasoning, based on observations that Justice Kennedy made during oral argument.

Kennedy told the attorneys for the law's opponents during argument that if their interpretation of the law prevailed, "the states are being told either create your own exchange, or we'll send your insurance market into a death spiral." Dahlia Litwick of Slate called this the "most important moment" from the arguments. It's less important-seeming now. Kennedy didn't write for the majority, nor did he write a concurrence (as of course he could have had the federalism angle been important to him), nor did Roberts' opinion for the court give that argument more than a brief passing glance.

Why not? I'm not sure. But the bottom line is that Roberts' decision gives the administration an uncomplicated victory as to what the statute means, without dragging either federalism or administrative discretion in to it.

2) Gay Marriage and the 14th amendment

Even bigger, Obergefell v. Hodges. Justice Kennedy, writing for the majority (no concurrences, four dissents), found that prohibitions on the marriage of same sex couples violate the fourteenth amendment, apparently as a consequence of the "synergy" between the equal protection clause and the substantive reading of the due process clause.

I won't try to find something new to say about this case. I will only say that Kennedy is a bit too sparse for my taste in his discussion of doctrinal matters. For example, especially on the equal protection side of the synergy, readers will naturally want to know what is the level of scrutiny that is supposed to attach to laws that discriminate between homosexuals and heterosexuals.  Strict? intermediate? mere rationality?

I think Kennedy is trying to say that the laws in question fail even at the lower tier, they are simply irrational. So he doesn't need to inquire which level is the right one. That either indicates that the whole conceptual apparatus of tiered scrutiny has outlasted its usefulness and Justices will feel free hereafter just to ignore it, OR it is simply sloppy. I would welcome the former but suspect the reality is the latter.

The phrase that comes to mind, the phrase often used to define when strict scrutiny is called for, is "discrete and insular minority." I'm not sure how discrete homosexuals are as a group. They surely are not insular. Thus on one traditional way of looking at the problem, discrimination against them is not subject to strict scrutiny. Still, it seems that the case is strong (leaving the liberty clause aside) that such discrimination should be subject to the intermediate level, the same level that applies to discrimination against women for example. And that it should fail of such scrutiny. If the three-tiers stuff is going to survive at all, it would have been good for the court to be clear about the fact that it does survive, and the place of this particular fact pattern therein.

That concludes my summary of five decisions of this term. But there is more to be said about this term, that escapes an opinion-by-opinion review, and I will say some more about it in my next post, Thursday.

Saturday, July 4, 2015

Beginning a discussion of the Supreme Court's term

Another term of the U.S. Supreme Court has come and gone. This year, the one case that is THE ONE, destined for the history books, not just the law books, is clearly ... well, there are at least two, and they were both decided very near the end of the term. The court addressed the latest challenge to a pillar of Obamacare, and it offered constitutional protection to the institution of marriage between homosexuals. 

I'll discuss each of those opinions in the second part of this three-part review. Today, I'll say a few words about each of three second-tier decisions, so to speak.  In increasing order of importance as I quite subjectively determine that, I've decided to include here Oneok v.Learjet (on preemption in the US energy markets); Brumfield v. Cain (on the death penalty and the mentally handicapped); Zivotofsky v. Kerry (separation of powers and recognition of the boundaries of foreign countries). They each raise questions foundational enough to make this an appropriate posting for the Fourth of July.

In the third and final part of this review, which I'll hold until next week, I'll address important orders the SCOTUS issued without opinion this term.


The bottom line is that federal preemption in the energy markets turns out to be less sweeping than some have thought: which is to say, the states have more pull.

The specific context is state antitrust law. A group of private businesses that buy nat gas directly out of the pipeline filed a lawsuit that alleged that the companies owning the pipelines had engaged in illegal price manipulation under Oklahoma's law. Those companies had the matter removed to the federal district court, and there they had it dismissed on the theory that federal statutes and regulations occupied the whole field

I for one am left wondering: how is the petitioner's name to be pronounced? "One oak" as in a single large tree standing alone? Or "on - ee -- oc"? something else? At any rate, the company used to be known by the less enigmatic name "Oklahoma Natural Gas Co."

The creation of a single commercial zone that stretched from Canada to the Gulf of Mexico was itself one of the key motives behind the creation of the Constitution, and the Supreme Court put itself in the business, early on, of blocking state efforts to impede movement across state lines, keeping this common market, truly common. Justice Marshall's decision about steamships crossing the Hudson was an early example.

I haven't studied Oneok as closely as I should, but my bias in such cases in with the dissenters. Scalia wrote for himself and Roberts, and issued a Marshallian warning: "Before today, interstate pipelines knew that their practices relating to price indices had to comply with one set of regulations promulgated by the Commission. From now on, however, pipelines will have to ensure that their behavior conforms to the discordant regulations of 50 States—or more accurately, to the discordant verdicts of untold state antitrust juries."


The court has this term re-affirmed its Atkins decision, 13 years ago, in which it held that the execution of an intellectually disabled person is cruel and unusual punishment and thus a violation of the 8th amendment.

Last year, in Hall v. Florida, the court gave Atkins some teeth, creating some bright lines tests as to intellectual disability.

This year, in Brumfield, SCOTUS through Sotomayor crosses some procedural Tees and dots some Eyes. She finds that a death-row convict was entitled to raise the Atkins issues before a federal court through a habeas petition.

I'll only say that I approve, and that the dissenters seem to wallow in their pique. It is as if they decided that, once this case wasn't going to be useful as a means of overturning Atkins, because they didn't have the votes, they weren't interested in even trying to make any specific arguments about possible distinctions between this case and those two precedents.

And yes, I know that there was another death-penalty-related SCOTUS decision this term, one involving the chemicals used and available for lethal injection. Frankly, I think Brumfield does more to carry the discussion forward, so this is the one that made my short list. If capital punishment is ever to be brought to an end through an ever-smaller-circle strategy that will manifest itself in precedents, then those precedents will involve an ever-smaller circle of who may be killed, rather than an ever-smaller circle of what means are to be used.


The full decision on Zivotofsky.

The bottom line here is that a 2002 act of Congress that mandated recognition of the City of Jerusalem as part of Israel for the purpose of the identification of a U.S. citizen's birthplace, has been struck down as unconstitutional.

Marty Lederman, who maintains a fascinating blog called "Just Security," makes the case that there are three critical points here on which eight Justices now agree, with only Thomas standing alone in opposition.  Those points?

1) That the President does have an implied power of recognition, extending to the territorial boundaries of a sovereign. [Thomas, OTOH, sees recognition as one of the express powers, that of the "vesting clause."]

2) On the other side of the scales in this case, eight justices now agree that Congress possesses substantial constitutional powers to control foreign affairs, even in connection with recognition. As Justice Kennedy wrote, recognition by a president would be a mere formality if Congress refused to confirm an ambassador, conclude trade agreements, confirm treaties, etc., matters that "require action by the Senate or the whole Congress."

3) More broadly than the recognition context, "The Executive is not free from the ordinary controls and checks of Congress merely because foreign affairs are at issue."

This point about the consensus for all-except-Thomas naturally leads Lederman to a discussion of the idiosyncratic character of Thomas' decision. Thomas is saying that given the broad sweep of the vesting clause, Congress has a constitutional obligation to fall in line behind the President on such matters.  He quotes two scholars, Prakesh & Ramsey, saying that since Congress' "general power to legislate in support of the President's foreign policy goals" is "derivative of the President's power, it must be exercised in coordination with, and not in opposition to, the President."

I'll simply adopt Lederman's conclusion to his discussion of Thomas: the "most significant thing" about his views "is that the other eight Justices so unequivocally repudiated them."

Friday, July 3, 2015

Schopenhauer's Praise for Rossini

Image result for william tell archer

Music expresses, say, "heartbreak." It doesn't express, "the heartbreak you felt two years and a month ago, on that rainy Wednesday when...." 

Its essence, according to Schopenhauer, is to get to the essence, to leave aside the accidents.

"Precisely this universality, exclusive as it is to music, together with the most exact precision gives music its high value as the panacea for all our suffering. Thus if music ties itself too closely to words or tries to model itself on events, it is trying to speak a language that is not its own. Nobody has avoided this error as completely as Rossini; which is why his music speaks its own language so clearly and purely that it has no need of words at all and retains its full effect when performed in instruments alone." 

That sounds rather equivocal praise for Rossini, who composed for opera, i.e. specifically for words and a stage set, not the concert halls Schopenhauer seems to have in mind here. 

Still: here's a link to the William Tell Overture. You can decide for yourself if gloomy Arthur got or missed the point.

And that is the protagonist of that opera, portrayed above.

Thursday, July 2, 2015

Effort to control crypto-currencies

Image result for bitcoins

Bitcoin, in itself and as a paradigm for other crypto-currencies on the same model, is a powerful alternative to state-controlled monetary systems. Politicians have refused over decades to harden money, in essence because they are in bed with the central bankers who control the fiat system. In this circumstance, markets are seeking a work-around, a way of hardening their own currencies, and that is what bitcoin means as a historical development.

The free range non-proprietray nature of the system is a large part of its appeal. Thus, the news that JP Morgan is trying to put up fences in this very range is distressing.

Yet Ian Allison reported on exactly that back in August.

Sunday, June 28, 2015

Lucy: A Review

Lucy (2014) Poster

Strange movie, no suspense. Of course she's going to defeat the Taiwanese drug running bad guys. You never have any doubt. Looks of fancy symbolism. No big whoop.

Saturday, June 27, 2015

The Sudden End to the First World War

HUNDRED DAYS (2014) by Nick Lloyd.

The book is a discussion of the final campaign of the first world war, the months that brought a surprisingly quick end to the mud-drenched trench warfare standstill that had defined the western front for years.

There are a lot of reasons why the war ended when it did. One reason: German troops were famished. The blockade was effective -- civilians of course were suffering most but Germany had lost the ability even to keep its troops decently fed.

Another reason -- the leadership at the top demanded rigidity in military tactics and strategy even when it was getting sound advice that flexibility was the urgent necessity of the day. And that is the gist of the quote I want to share. Here it is.

In the summer of 1918, "Crown Prince Wilhelm reported to [high command] that the front should be immediately withdrawn to the so-called Antwerp-Meuse position, which lay far behind the Hindenburg Line. This would give ... troops a breathing space, shoirten the front considerably, and free precious reserves. These concerns were eminently sensible and a valuable recognition of Germany's dangerously exposed position in the west, having gained large amounts of territory that was difficult to defend and strategically useless, but they would not be received well by the men who ran the German war effort: the Kaiser ... the Chief of the General Staff, Paul von Hiundenburg; and his right-hand man, General Erich von Ludendorff."

Friday, June 26, 2015

Medicinal marijuana: slow research progress


"Drug development based on herbal cannabinoids has been slow in the U.S. largely because of the scheduling issue and reluctance of the National Institute on Drug Abuse to approve research studies. A great deal of the current dispensary-based knowledge about the uses and efficacies of various strains has been the product of popular trial and error, a potentially dangerous and irreproducible way to approach science."

That's a quote from Anne Wallace, writing in MJ Investor News. I'll let you consider the implications without further ado.