Supremes hear Obamacare arguments today

Today the Supreme Court will hear arguments on whether or not Obamacare is constitutional.  The issue hinges on whether or not Congress can force citizens to buy a product, as the healthcare law requires of health insurance.  (George Will noted a killer argument filed by the Institute for Justice in an amicus brief:  According to the whole history of contract law, no one can be coerced into signing a contract.)

Does anyone know if the individual mandate is the only aspect of the law the court will hear?  Is the contraceptive and abortion pill mandate also on the table?  I suspect these are separate issues.

The court might overturn the mandate requiring that everyone buy health insurance while still leaving the rest of the law intact.  Which would make it worse than ever, since it would recast health care without even taking care of the uninsured.  Or the court might throw out the whole law on the grounds that its key provision is unconstitutional.  Or the court might uphold the whole law.

So what do you think will happen?

The constitutional right to a plea bargain

The Supreme Court  just rocked our criminal justice system:

A divided Supreme Court ruled for the first time Wednesday that the guarantee of effective legal representation applies to plea bargain agreements, significantly expanding the constitutional rights of defendants as they move through the criminal justice system.

In a pair of cases decided by 5 to 4 votes, the court opened a new avenue for defendants to challenge their sentences on grounds that their attorneys gave them faulty advice, lawyers on both sides of the issue said. The vast majority of criminal cases end with a guilty plea rather than a trial, and the ruling could affect thousands of cases.

“The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities . . . that must be met to render the adequate assistance of counsel that the Sixth Amendment requires,” Justice Anthony M. Kennedy wrote. He was joined by the court’s liberal justices, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

That is the case, the majority said, even if the defendant is unquestionably guilty or has received a fair trial after turning down a plea bargain.

Since more than nine in 10 cases involve a plea rather than trial, the decision will mean greater constitutional scrutiny of the negotiations central to almost every prosecution.

“It seems to me the court has created a new body of constitutional law,” said Connecticut Assistant State’s Attorney Michael J. Proto, who wrote a brief for 27 states urging the court not to extend the constitutional guarantee to plea bargains. “There are a lot of unanswered questions, and it is going to spawn a lot of litigation.”

Margaret Colgate Love, who helped write an American Bar Association brief that advocated for the court’s action, agreed about its impact.

“What makes these cases so important is the Supreme Court’s full-on recognition of the centrality of plea bargaining in the modern criminal justice system and its extension of constitutional discipline to the outcome of the plea process,” she said.

The decisions prompted a scathing rebuttal from Justice Antonin Scalia, delivered from the bench to signal his displeasure.

Scalia called the rulings “absurd” and said the majority had twisted the constitutional right to ensure defendants get a fair trial into one in which they have a chance “to escape a fair trial and get less punishment than they deserve.”

He added in a written dissent, “Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement.”

The court’s conservatives — Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. — voted with Scalia.

The court was considering two cases in which all parties agreed that the lawyers involved had failed their clients.

In one, Galin Edward Frye’s attorney never told him of plea bargain offers from Missouri prosecutors on charges that he was driving with a revoked license. He later pleaded guilty and was sentenced to three years in prison. Prosecutors had offered Frye a couple of deals, one of which would have required 10 days in jail.

In the other, Anthony Cooper was charged under Michigan law with assault with intent to murder and other charges after shooting Kali Mundy in the buttock, hip and abdomen. She survived the attack.

Prosecutors offered Cooper a deal of 51 to 85 months in prison in exchange for a guilty plea. Cooper turned down that and other offers, allegedly because his attorney told him he could not be found guilty of the attempted murder charge, because he had shot Mundy below the waist.

Cooper went to trial, was convicted and was sentenced to 15 to 30 years in prison.

In the Frye case, the majority held that “when defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”

In Cooper’s case, the court said the “defendant who goes to trial instead of taking a more favorable plea” may be harmed by receiving “either a conviction on more serious counts or the imposition of a more severe sentence.”

The majority rejected the view of Scalia, the states and the Obama administration that any ineffective advice from Cooper’s attorney was remedied by what Scalia called “the gold standard of American justice — a full-dress jury trial before 12 men and women tried and true.”

That view, wrote Kennedy, “ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials.”

On one level, this ruling would seem to protect the guilty by opening up litigation possibilities that could a lot of imprisoned criminals free.  But I think it could also harm defendants who are accused but are innocent.

If we aren’t going to have trials, I suppose the alternative needs to be brought under constitutional principles, but aren’t we supposed to have trials, which have all of the rigorous rules of evidence and formalized protection of the defendants’ rights?  In plea bargains, defendants are manipulated to plead guilty for the price of a lesser sentence.  But what if they aren’t guilty?  Justice Kennedy’s statement, above, is chilling.

 

The UN & NATO authorize our wars, not Congress

So says our Secretary of Defense and the Chairman of the Joint Chiefs:

The Obama administration and Defense Secretary Panetta are contending that when offensive military action is needed, it does not have to go to Congress first for permission but that international agreements, the UN or NATO can override Congressional acts of authorization of war or use of force.

At a hearing that was held in Washington on March 7, 2012, Sen. Sessions of the Senate Armed Services Committee questioned not only Defense Secretary Leon Panetta but also of Joint Chiefs of Staff Chairman Gen. Martin Dempsey about offensive military action and the permissions that are needed.

Both Panetta and General Dempsey indicated that “international permission,” rather than Congressional approval, provided a ‘legal basis’ for military action by the United States.

In other words, they explained that they didn’t need permission by the Congress and can pursue offensive military action without Congress’ involvement and that the UN would dictate when and how the hostilities would occur, therefore bypassing the War Powers Act.

via Panetta: ‘Use of military force can be granted by UN or NATO, not Congress’ – Atlanta Paulding County Republican | Examiner.com.

Nevermind the Constitution, which as a War Powers Clause that specifically invests the power to make war with Congress:

[Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
Article I, Section 8, Clause 11

That’s Congress and not the Executive branch–even though presidents have been running roughshod over this Constitutional requirement for our last several wars–and certainly not international agencies!

Forcing a company to give away a product for free

Charles Krauthammer points out yet another problem with President Obama’s contraceptive mandate compromise:

The president of the United States has just ordered private companies to give away for free a service that his own health and human services secretary has repeatedly called a major financial burden.

On what authority? Where does it say that the president can unilaterally order a private company to provide an allegedly free-standing service at no cost to certain select beneficiaries? . . . .

To solve his own political problem, the president presumes to order a private company to enter into a contract for the provision of certain services — all of which must be without charge. And yet, this breathtaking arrogation of power is simply the logical extension of Washington’s takeover of the private system of medical care — a system Obama farcically pretends to be maintaining.

Under Obamacare, the state treats private insurers the way it does government-regulated monopolies and utilities. It determines everything of importance. Insurers, by definition, set premiums according to risk. Not anymore. The risk ratios (for age, gender, smoking, etc.) are decreed by Washington. This is nationalization in all but name. The insurer is turned into a middleman, subject to state control — and presidential whim. . . .

This constitutional trifecta — the state invading the autonomy of religious institutions, private companies and the individual citizen — should not surprise. It is what happens when the state takes over one-sixth of the economy.

via Charles Krauthammer: Overreach — Obamacare vs. the Constitution – The Washington Post.

Is the U.S. Constitution obsolete?

[An earlier version of this post went up with just the raw quotation and with my introduction, edits, and commentary  not showing up, for some reason.  Sorry for the confusion.]

Conservatives worry that the U. S. Constitution is being ignored.  The next step is for the Constitution to be spoken against and then repudiated.  That seems to be happening, even by a Supreme Court Justice!  In the meantime, the rest of the world has stopped imitating America’s constitutional system, which, in many people’s minds does not parcel out enough rights, and the rights it does recognize are the wrong ones:

In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree [with the irrelevance of the Constitution to new nations today]. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.

The rights guaranteed by the American Constitution are parsimonious by international standards, and they are frozen in amber. As Sanford Levinson wrote in 2006 in “Our Undemocratic Constitution,” “the U.S. Constitution is the most difficult to amend of any constitution currently existing in the world today.” (Yugoslavia used to hold that title, but Yugoslavia did not work out.)

Other nations routinely trade in their constitutions wholesale, replacing them on average every 19 years. By odd coincidence, Thomas Jefferson, in a 1789 letter to James Madison, once said that every constitution “naturally expires at the end of 19 years” because “the earth belongs always to the living generation.” These days, the overlap between the rights guaranteed by the Constitution and those most popular around the world is spotty.

Americans recognize rights not widely protected, including ones to a speedy and public trial, and are outliers in prohibiting government establishment of religion. But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care.

It has its idiosyncrasies. Only 2 percent of the world’s constitutions protect, as the Second Amendment does, a right to bear arms. (Its brothers in arms are Guatemala and Mexico.) . . . .

“America is in danger, I think, of becoming something of a legal backwater,” Justice Michael Kirby of the High Court of Australia said in a 2001 interview. He said that he looked instead to India, South Africa and New Zealand.

Mr. Barak, for his part, identified a new constitutional superpower: “Canadian law,” he wrote, “serves as a source of inspiration for many countries around the world.” The new study also suggests that the Canadian Charter of Rights and Freedoms, adopted in 1982, may now be more influential than its American counterpart.

The Canadian Charter is both more expansive and less absolute. It guarantees equal rights for women and disabled people, allows affirmative action and requires that those arrested be informed of their rights. On the other hand, it balances those rights against “such reasonable limits” as “can be demonstrably justified in a free and democratic society.”

via ‘We the People’ Loses Appeal With People Around the World – NYTimes.com.

I suspect that in the years ahead, since nations come and go, that eventually we will be hearing calls to eliminate our obsolete constitution in favor of something new.   The new constitution will feature new rights (to food?  to health care? to travel?), but other rights will pass away–the right to keep and bear arms will be sure to go.  Also, if Canada is to be our guide, the right to express criticisms of Islam.  And we can be sure that there will be lots of other “reasonable limits” to what we will be allowed to do.

Recess vs. pro forma sessions

Former U.S. Attorney General Edwin Meese on why, according to the Constitution, pro forma sessions in the Senate do not allow for recess appointments:

As a former U.S. attorney general and a former Office of Legal Counsel lawyer who provided advice to presidents on recess appointment issues, we have defended and will continue to defend the lawful use of the recess appointment power. Although originally conceived by the Framers for a time when communicating with and summoning senators back to the Capitol might take weeks, it is still valid in a modern age — but only as long as the Senate is in recess. Not only was the Senate not in recess when these purported appointments were made, it constitutionally could not have been.

Article I, Section 5, of the Constitution states that neither house of Congress may adjourn for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate, consistent with the requirements of the Constitution, must have some sort of session every few days.

The president and anyone else may object that the Senate is conducting “pro forma” sessions, but that does not render them constitutionally meaningless, as some have argued. In fact, the Senate did pass a bill during a supposedly “pro forma” session on Dec. 23, a matter the White House took notice of since the president signed the bill into law. The president cannot pick and choose when he deems a Senate session to be “real.”

It does not matter one whit that most members of Congress are out of town and allow business to be conducted by their agents under unanimous consent procedures, because ending a session of Congress requires the passage of a formal resolution, which never occurred and could not have occurred without the consent of the House.

President Obama is not the first to abuse the recess appointment power. Theodore Roosevelt did as well, but for almost 90 years the executive branch has generally agreed that a recess as recognized by the Senate of at least nine to 10 days is necessary before the president can fill any vacancies with a recess appointment.

When Senate Majority Leader Harry Reid (D-Nev.) kept the chamber in pro forma sessions at the end of the George W. Bush administration, he declared that was sufficient to prevent Bush’s use of the recess appointment power. Reid was right, whether or not his tactics were justified.

via Obama’s recess appointments are unconstitutional – The Washington Post.


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