Sylvia Burwell

The One About How Nine Justices Walk Into a Bar ….

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. (Photo: Stephen A. Masker)

“Congratulations, Congress, you’ve literally sunk to the level of a punch line.”

Steve Benen

The proposition that Congress is a punch line strikes few as new material. Even the idea that a Solicitor General would take the shot is not so strange. Yet Steve Benen makes the point about Justice Scalia’s blithe view of the 114th Congress:

Scalia wasn’t kidding. “I don’t care what Congress you’re talking about,” he added. “If the consequences are as disastrous as you say, so many million people ­­ without insurance and whatnot – yes, I think this Congress would act.”

On a purely theoretical level, this is not ridiculous. Major new laws have routinely needed minor technical fixes for generations, and many of these corrections are intended to bring clarity to ambiguous phrases. Under normal circumstances, the King v. Burwell case wouldn’t even exist because Congress would have clarified the ACA structure years ago.

And, again in theory, if the Supreme Court were to decide in this case that the statute needs clarification, a sane, mature, responsible legislative branch would simply add a few words to the ACA law and ensure that consumers receive the same insurance subsidies they’re receiving now.

But that’s all the more reason to understand exactly why Scalia is wrong.

Perhaps it is Justice Scalia who is the punch line. Then again, neither is that news.

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The Growing Scandal of King v. Burwell

FILE - In this Feb. 12, 2008, file photo, Chief Justice John G. Roberts, Jr., is seen in Providence, R.I.  Turned away at the Supreme Court, congressional Republicans sketch a filibuster-proof strategy to repeal the nation's health care law in 2013.  But it hinges on two uncertainties ― Mitt Romney capturing the White House and the party seizing even narrow control of the Senate (AP Photo/Stephan Saviola, File)

Sometimes the lede buries itseslf; the point will hide in plain sight. It is an easy thing to do, hiding in plain sight, when nobody is looking for you:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: “What’s it to you?”

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.

Which brings us to the four plaintiffs in the latest threat to President Obama’s health care law, to be heard next week. Recent news reports have raised the question of whether any of them has a dog in the fight.

But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do. The court is sometimes accused of being opportunistic in using the standing doctrine to avoid legal questions it wants to duck, but ignoring the issue when it is eager to weigh in.

(Liptak)

Two sentences; did you miss them?

No, really, this is important: “But it is not clear that the Supreme Court will address that question, which could determine the outcome of the case. The court’s recent decisions have been inconsistent and provide few clues about what it might do.”

One of the hallmarks of the Roberts Court is its disrespect for standing case law and precedent. The Chief Justice is an example of why the longstanding conservative complaint about liberal judicial activism is a swindle. John Roberts seems to apply more of an “if it feels good, do it” attitude to the judiciary, but at the same time he’s conscious of appearances, which is why conservative majorities on the Court will occasionally do that weird thing where they overturn case law but then disclaim that they’re not overturning anything, such as we’ve seen in Ricci (Civil Rights Act) and Texas (Voting Rights Act). And there is also the conservative majority’s clear tendency to throw cases for politics by carving out one-time exceptions to the law, such as we saw in Safford, in which a school was forgiven a sex offense because ignorance is bliss and, well, why would a young girl be upset by adults forcing her to strip down so they can leer and prod at her body, and Ricci, in which the New Haven Civil Service Board followed the law but was held in fault for doing so.

One of the reasons this Court is so hard to predict is, in fact, its inconsistency. And the reason it is hard to pin down that inconsistency is because it is so inconsistent. To the one, it is not a purely institutionalist streak. To the other, it is not purely traditionalist. Rather, it seems Chief Justice Roberts is happy to keep pushing the image of calling balls and strikes just as long as nobody points out that the strike zone keeps changing.

The Constitution is John Roberts’ playground, nothing more. Inconsistency will be the hallmark of his chiefdom. (more…)

The Main Attraction?

Speaker of the House John Boehner (R-OH8)

“Just because some Republicans want to pretend that before January 2009 presidential power had been limited to pardoning Thanksgiving turkeys doesn’t mean they are right.”

Jonathan Bernstein

And the hits keep coming. ‘Tis a bold headline for Bloomberg View: “Boehner Betrays Congress”, and Jonathan Bernstein leaves little room for doubt about his perceptions:

I’ll say it again: Speaker John Boehner and House Republicans aren’t asking for authority to be returned from the White House to Congress. They want an imperial judiciary that could trump either of the elected branches.

Jonathan Bernstein (via BloombergView)In a system of separated institutions sharing powers, which is what the Constitution created, all three branches do things that look a lot like legislating, but laws can trump administrative or judicial rule-making. That gives Congress serious clout within the system. This lawsuit, however, is an abdication of that clout. In effect, it says that the courts, not Congress, should have the last word when there’s a dispute between branches.

Filing this lawsuit amounts to institutional treason. Boehner and House Republicans should be ashamed. The rest of us can only hope that the courts rescue them by keeping to precedent and tossing this lawsuit into the garbage.

To the other, the suit is filed. In a way, that is actually surprising. It is not quite that it seems like yesterday that House Republicans found themselves in need of a new lawyer after the one they hired quit the case, owing to the sort of political pressure one’s law firm might apply when one is about to publicly humiliate the firm with an act of juristic malpractice; it wasn’t yesterday, but two months ago. After hyperpartisan lawyer David Rivkin quit the case for having bitten off too much hyperpartisanship for his firm, Baker Hostetler, to chew, the GOP turned to William A. Burck of Quinn Emanuel Urquhart & Sullivan, who had just finished the laborious task of failing to defend former Virginia First Lady Maureen McDonnell.

Late last month, then, we learned that Mr. Burck was also stepping down. Josh Gerstein and Maggie Haberman of Politico summarized the situation thus:

Rivkin’s firm withdrew in September after health-care-related clients pressured the firm to back out of representing the House in the Obamacare-related suit. Two sources told POLITICO in recent days that a similar scenario played out with Burck’s firm, with clients bringing pressure to get the firm off the case.

How about three days ago? Is that close enough to feel like yesterday? For whatever reason, Jonathan Turley of George Washington University decided to take up the case. Lauren French of Politico reported ot Tuesday:

“Professor Turley is a renowned legal scholar who agrees that President Obama has clearly overstepped his constitutional authority,” said Michael Steel, a spokesperson for Speaker John Boehner. “He is a natural choice to handle this lawsuit” ....

.... “Even for $500-per-hour in taxpayer dollars, Speaker Boehner has had to scour Washington to find a lawyer willing to file this meritless lawsuit against the president,” said Drew Hammill, a spokesperson for Minority Leader Pelosi. “Now, he’s hired a TV personality for this latest episode of his distraction and dysfunction.”

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