Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘court decision’

… the Department of InJustice has Totally lost It [#interpret the law]…

Posted by paulfromwloh on Tuesday,November 22nd,2016

.. how else can you figure it than from something like what outgoing AG Holder & Company have done with the law …

.. now , it is the Civil Rights Act … specifically , to wit , Title VII …

.. it applies to sex discrimination , among other things . Most of all , it helps protect women from sex discrimination by men …

.. [h/t — pjmedia.com]…
.. [link] to the blog news …

.. now see this legal stupidity …

Attorney General Eric Holder has issued an edict, through a memorandum, that cross dressing and transsexualism is now protected under federal civil rights laws which were designed to protect women from sex discrimination. Existing federal law provides no statutory support for treating cross-dressers and transsexuals as the law treats female victims of discrimination.

This means that the Justice Department could now, for example, consider the decision by a school or church to not hire a transvestite as a violation of federal law.

Holder ordered that the Department of Justice will stop making arguments in litigation suggesting that transgender people are not covered by Title VII, the federal law that prohibits sex discrimination in employment.

Holder’s memo says that “sex” under Title VII doesn’t only now pertain to sex discrimination. To Holder and his army of DOJ lawyers, federal law now prohibits discrimination based on transgender status, including discrimination “because an employee’s gender identification is of a particular sex, or because the employee is transitioning, or has transitioned to another sex.” The memo says that “the Department will no longer assert that Title VII’s prohibition against discrimination based on sex does not encompass gender identity per se (including transgender discrimination).”

.. if you want to see the offending memo , here is the [link] ….

.. following a court decision is a no – brainer : you have to do it . It is a part of our system . But the EEOC ? Especially now . The EEOC under the ObamaCraps has gone totally looney . And Main InJustice chooses to give its decisions the same legal deference that you have to to a court decision . That is insane …

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… Dummies , the Point is Religious Freedom [#accomodation][#religious freedom]…

Posted by paulfromwloh on Saturday,November 14th,2015

.. the 7th Circuit is highly libertarian , and the D.C. Circuit has [for now] gone totally loonie – leftie with Dingy Harry Reid ‘ s court – stuffing stunt ..

.. neither one seems to get the point , though . The point is that the filling out of the HHS form is a substantial burden on the religious order ‘ s freedom of religion , dummies ….

.. [h/t — HotAir.com]..
.. [link] to the blog post …

.. D.C. Appeals Court Judge Janice Rogers – Brown [a future GOP Supreme Court justice nominee] puts it very well in her stinging dissent , exceprted here …

This seems to miss an obvious causal step: the “mandate on insurers” at issue here is not merely a general ACA requirement to provide contraception coverage, but a series of cost-sharing mandates that are not triggered unless the religious groups fill out the form. In a powerful dissent, Judge Janice Rogers Brown explains why this is nonsense:

[T]his case is not “paradoxical” because Plaintiffs object to regulatory requirements the government intended as a religious accommodation. That the government’s expressed intent in enacting the regulations at issue was to allay religious adherents’ concerns about the contraception mandate is not determinative of the ultimate question of whether Plaintiffs were in fact accommodated. Where the government imposes a substantial burden on religious exercise and labels it an “accommodation,” that burden is surely as distressing to adherents as it would be if imposed without such a designation. Therefore, heightened skepticism is not appropriate. We should look at Plaintiffs’ claims as we would any RFRA claim. After all, in the substantial burden analysis, the government’s motivations— no matter how benevolent—are irrelevant; we ask only whether the government’s action operates to place “substantial pressure on an adherent to modify his behavior and to violate his beliefs.”

[…]

Plaintiffs identify at least two acts that the regulations compel them to perform that they believe would violate their religious obligations: (1) “hiring or maintaining a contractual relationship with any company required, authorized, or incentivized to provide contraceptive coverage to beneficiaries enrolled in Plaintiffs’ health plans,” Pet. for Reh’g En Banc at 3; and (2) “filing the self-certification or notification,” id. at 4. Plaintiffs have therefore shown both that they are being compelled to modify their behavior and that, if undertaken, the modification would be a violation of their religious beliefs.

[…]

The panel did not dispute that federal law operates to compel Plaintiffs to maintain a relationship with an issuer or TPA that will provide the contraceptive coverage and to execute the self-certification or alternative notice. Their disagreement with Plaintiffs is about the significance of those compelled acts; in other words, the panel rejected the “adherents’ claim about the religious meaning of the undisputed operation of [] federal regulation[s].”

.. you can count on this one going before the Supremes . SCOTUS will not be able to avoid it . The Court could even be down one justice , though . Why ? ..

.. I think that Associate Justice Ruth Bader Ginsberg is slowly dying . Especially since she has already escaped pancreatic cancer once [already] , she is living on borrowed time . She wants to do as much damage as she still can while she still lives . However , I am betting [especially with Chuck Grasseley in charge of the Senate Judiciary Cmte] that …. His Lordship will try to push thru a radical leftist as her replacement , and the GOP – controlled Senate will have nothing of it …

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… A Major Victory for Property Rights [#US Supreme Court][#Horne v Dept of Ag]…

Posted by paulfromwloh on Monday,June 29th,2015

.. what came up at the US Supreme Court recently in Horne v. Department of Agriculture …

.. The Horne family is one of raisin growers . Many of our agricultural products have been subject to what are called ” marketing orders ” since the Depression – era programs of the late 1930s . What they do is ” take ” a portion of the grower ‘ s product , and use it to ” stabilize ” the market ..

.. what has never been quite established is that these ” marketing orders ” are takings under our US Constitution under the Fifth Amendment . Yes , the Fifth Amendment , remember the second clause ..

.. [h/t — m.NationalReview.com]..
.. [link] to the blog posting ..

.. what the Supreme Court decided [and , as usual , the media butchered] is that yes , these marketing orders are a taking ..

.. Carrie Severino of National Review puts it better ..

The Court had to address three questions to decide whether this constituted a taking, and on this question, eight justices were in agreement.

First, it determined whether the Constitution’s Takings Clause, the text of which simply addresses “private property,” covers only real estate, or whether it also covers personal property (like the raisins in this case). The Court rightly held that the words “private property” are broad enough to cover property in general, so “the Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home.” This reading is particularly sensible in light of history, including Revolutionary War-era appropriations of personal property that angered the colonists and likely inspired the constitutional protections. The Chief even cited the understanding of property in the Magna Carta, which just last week celebrated its 800th birthday.

The second question for the Court was whether a contingent residual interest in the property was enough to compensate growers for the taking. In this case, after the raisins were disposed of (in various noncompetitive markets or even given away), growers were paid their share of any net proceeds – often less than the cost of producing the crop or nothing at all. The Court held that the speculative possibility of a payment at a later date was not sufficient to save the scheme. Law students will recall that even forcible installation of a cable box on a rooftop constitutes a taking due (presumably small) compensation. In light of that precedent, it’s hard to see why losing control over how one’s crop is used wouldn’t be a taking. Under the USDA’s program, the government takes title to (full legal ownership of) the raisins and has the right to dispose of them however it wants. Any residual funds paid to growers would simply be accounted to the “just compensation” due for such a taking.

It’s significant that the physical taking of the raisins was key to the Court’s result on both these questions. While many have decried the burden that purely regulatory takings place on the economy, the Court’s decision explicitly distinguishes this case from that sort of taking. So the answer may have come out differently if, for example, growers were simply limited in the ways they could use their raisins rather than having their raisins physically “appropriated” from them and title given to the government. That case will have to wait for another term.

The third question considered by the Court was whether the raisin-confiscation scheme was still a taking despite the fact that it was a “condition on permission to engage in commerce.” The government was arguing, in effect, that the raisin growers opted into this scheme voluntarily in exchange for being allowed to sell their crop at all. But Chief Justice Roberts wrote that saying “let them sell wine” (the vintner’s equivalent of “let them eat cake”) is cold comfort and anyway outside the government’s authority. While the government can require compliance with safety regulations for sellers of pesticides,

Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is . . . not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection.

As the Chief put it, “[r]aisins are not dangerous pesticides; they are a healthy snack.” And selling normal agricultural products shouldn’t require farmers to go to the government with hat in hand.

But even a wine cellar can’t reach the chilling effects of the government‘s asserted entitlement to control of the growers’ property. While the government had the good sense not to endorse the Ninth Circuit’s attempts to limit the Fifth Amendment to protecting real property, it showed little respect for property owners. Its arguments suggested that Americans should have to ask permission from their benevolent overlords to be allowed to enter the marketplace at all. The government argued that being allowed to “keep the change” after a third party disposed of nearly half the annual crop was equivalent to retaining full ownership of the literal fruit of one’s labors.

The 5-4 section of the opinion dealt with whether the Hornes had received just compensation for their raisins. The Chief held that the value of the grapes had already been established by the government itself when it assessed a nearly half-million dollar fine on the Hornes as the value of the grapes they refused to release to federal agents. The case was thus neatly resolved by simply canceling out the fine imposed by the government.

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… Earth to Massachusettes [#pro – life case]…

Posted by paulfromwloh on Wednesday,August 13th,2014

.. haven’t you dummies heard of McCullen v Coakley ? Duh !! ..

.. passing another pro – death anti – speech zones bill ? ..

.. [h/t — theRightScoop]..
.. [link] to the blog news ..

.. Un – Uh … It will be tossed by a court in your local jurisdiction . Well , it sure as hell should be ..

.. if not , it will be by the 1st Circuit Appeals Court , you dummies …

.. the US Supreme Court decision was unanimous . 9 to 0 . Get the point . You can have a ” buffer zone ” law , yes . But having something like was proposed in the new state law ? No , not even close . Something that especially that is content – based …. the Supremes have said that that manuveur is a very very big no – no …

.. [h/t –– MassLive.com]..

.. [link]–to the news piece ..

.. nice try , pro – death crowd …. try again …

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… Great News on Gun Rights [#Peoples Republic of D.C.]

Posted by paulfromwloh on Sunday,August 3rd,2014

.. yes , it is free .

.. our nation ‘ s capital is now no longer a gun free zone ..

.. for many years , the District of Columbia has had one of , if not the fiercest gun grab laws in the country . You simply could not carry a gun on the streets of the District for ANY reason , for more than 50 years ..

.. [h/t — LegalInsurrection]..
.. [link] to the legal opinion ..

.. it will be interesting to see what the D.C. city government decides to do . This case is in federal court , not the captive courts of the District , and would go up to the D.C. Circuit Court of Appeals , where both Heller and McDonald originated . I think that the government wants to appeal this , and maintain their precious gun ban , but the gun grab groups may well be having second thoughts ..

.. First , this one has to go to the D.C. Circuit Court of Appeals . It now has a more stacked 7to4 democrap majority , but Heller and McDonald are binding precedent . They just may well try to mess with them, surprisingly enough . Doing so , though , would piss off the Supremes ….

.. Heller and McDonald were decided 6 to 3 , not 5 to 4  , so they are not slim majorities . The gun – grab groups may not want to risk setting a nationwide case precedent . Drake v. Jerejian might be one case . Moore v Madigan might be another case . Palmer just may be a case were  the gun grab groups are stupid enough to push it up the way , and have it blow up in their faces  ..

.. especially when the definition of ” bear ” arms comes from , not a majority opinion , but a dissent , and of all people , from Justice Ginsberg in a dissent in another case …

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… Dr. Charles is Spot On ! [#Halbig v Burwell]…

Posted by paulfromwloh on Friday,August 1st,2014

.. what Dr. Krauthammer is referring to is the guy in the video clips is the principal non – congressional author of the ObamaCrapCare bill …

.. he picks up precisely on point that where the Halbig and King cases are concerned , the plaintiffs are clearly in the right …

.. [h/t — NiceDeb.wordpress.com]..
.. [link] to the video clip …

.. just ask former senators Ben Nelson [Ne] and Max Baucus [Mt] . They both know the full truth . Nelson ‘ s is one of , if not the last . vote that was sought for the bill in the Senate . Baucus used to chair the Senate Finance Committee , and was the bill ‘ s principal congressional author …

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… Interesting News in Gun Rights [#Palmer v DC]…

Posted by paulfromwloh on Tuesday,July 29th,2014

.. Palmer v DC is , of course , the great victory for gun rights in the nation ‘ s capitol …

.. Palmer was brought to finally bring down the idiotic gun restrictions in our Nation ‘ s Capitol . The Heller case brought them down , in theory , but the DC government played dirty with their local laws . They passed local laws so onerous and disgusting that it was impossible for anyone to legally carry a gun outside the home …

.. [h/t — HotAir.com]..
.. [link] to the blog news post ..

.. now , Palmer changes all of that . It is also interesting that none of the local federal district court judges heard the case . The case went to a senior judge , and one from upstate New York . The D.C. government had to groan at that prospect , and they were right . They lost …

.. What happens now ? An appeal to the D.C. Circuit (that is the normal appeals circuit that would hear the case ) is in the offing . The anti – gun rights groups , though are scared to death , either way . The appeals decision in Moore v Madigan in the 7th Circuit is hanging over their collective heads …

.. So , win or lose , an appeal would set up a conflict between circuits , one that the US Supreme Court would love to get its hands on ….

.. now , all sorts of DC and federal agencies are going to have to come up with firearms policies …

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… A Ruling on #Halbig should be Here any day now [#ObamaCrapCare]…

Posted by paulfromwloh on Friday,July 18th,2014

.. yes , this one .

.. this is the latest one to threaten the creation of ObamaCrapCare .

.. it does not threaten its Constitutionality , though . What it does is go after its economic and policy foundations …

.. [h/t — HotAir]..
.. [link] to the blog news …

.. you can thank the dumb – dumbs on Crapitol Hil for this one . No , not the Republicans . Remember , not one GOP rep or Senator voted for ObamaCrapCare . This drafting blooper was a DemoCrap creation . And those dummies meant it , to entice the ” states ” to create their health insurance exchanges . They wanted them to , and were going to penalize them if the did not . However , the Supremes got in the way …

Remember the Halbig case? If not, catch up right now by re-reading this post from January, written after a D.C. district court judge ruled in Obama’s favor. O-Care is a famously complex law but the lawsuit that could end up demolishing it is surprisingly simple.

In a nutshell, there’s a line buried deep in the statutory text that says federal subsidies for insurance premiums will be available to anyone who buys a plan on “an Exchange established by the State.” Question: Does Healthcare.gov, the exchange built by the federal government after 34 states refused to build their own exchanges, qualify as an “Exchange established by the State”? Or do only state exchanges qualify ?

If it’s the latter, then millions upon millions of people who’ve signed up for O-Care through Healthcare.gov since October in the expectation that Uncle Sam will be paying part of their bill are in for a nasty surprise. The only fix that’s available (unless His Majesty tries some executive gambit, of course) is for Congress to amend the statute so that subsidies are available on the federal exchange too, but what are the odds of the House GOP agreeing to that? If the D.C. Circuit, which is set to rule any day now on the appeal of the earlier ruling, sides with the challengers against O, consumers will be forced to either come up with the money for their premiums themselves or drop their coverage. And if most of them choose to drop coverage, leading to a mass exodus of healthy people from various insurance risk pools, suddenly the White House is facing a death-spiral problem where hiking premiums on the remaining enrollees is the only way to pay for all the sick people still in the pool. That’ll lead to more dropped coverage, which means even higher premiums, and then it’s spiralmania.

It’s a magic bullet, aimed right at the heart of ObamaCare. What will the D.C. Circuit do? TPM wonders:

The challenge was initially written off by some as a fool’s errand because there’s a lack of evidence that the Democrats who crafted and passed the Affordable Care Act intended to block subsidies on the federal exchange, which was designed as a backstop on behalf of the states. (They’ve signed a brief saying as much.) But the challengers seized on an ambiguity in the language of the statute which says the subsidies are to be provided by “an Exchange established by the State.”

“If the legislation is just stupid, I don’t see that it’s up to the court to save it,” Judge A. Raymond Randolph said during oral arguments in March.

Randolph, a George H.W. Bush appointee, said the text of the statute “seems perfectly clear on its face” that the subsidies are confined to state-run exchanges. Carter-appointed Judge Harry T. Edwards slammed the challengers’ claims as “preposterous.” So the deciding vote appears to be with George W. Bush-appointed Judge Thomas B. Griffith, who wasn’t resolute but sounded unconvinced of the Obama administration’s defense, saying it had a “special burden” to show that the language “doesn’t mean what it appears to mean.”

In a way, this is an analog to Obama’s power grab on immigration, which he defends as necessary because Congress is paralyzed. Will the D.C. Circuit read the statute as it’s written and leave it to Congress to resolve the ambiguity over “state” exchanges or, knowing that Congress won’t do a thing to resolve it, will the court feel obliged to minimize disruption to America’s new insurance regime by interpreting the word “state” broadly? The lower court reasoned that the federal ObamaCare exchange isn’t really a “federal” exchange, it’s an amalgamation of 34 different state exchanges that the federal government established on behalf of each of those 34 states. In that sense, the federal exchange is a “state” exchange (or a group of state exchanges) and therefore its customers are eligible for subsidies.

Law prof Jonathan Adler has led the charge in arguing the opposite, that the whole reason the statute was drafted the way it was is because Congress wanted to give states an extra incentive — namely, subsidies for its residents — to set up their own individual insurance exchanges. If a state refused to comply and forced the feds to set up an exchange on its behalf instead, its residents would be punished by having their eligibility for subsidies removed. (Adler wrote a thorough reply to the district court’s ruling for WaPo back in March.) The D.C. Circuit needs to choose between those two interpretations. And depending upon how they rule, SCOTUS may get a crack at it — which, per Jonathan Turley, is potentially also bad news for O-Care fans:

But the D.C. Circuit Court may see things quite differently, especially in light of recent Supreme Court opinions holding that the Obama administration has exceeded its authority and violated separation of powers.

In Michigan vs. Bay Mills Indian Community, for example, Justice Elena Kagan noted that “this court does not revise legislation … just because the text as written creates an apparent anomaly as to some subject it does not address.” In Utility Air Regulatory Group vs. EPA, Justice Antonin Scalia, writing for the majority, stressed that “an agency has no power to tailor legislation to bureaucratic policy goals by rewriting unambiguous statutory terms.” And a third strike came last week in National Labor Relations Board vs. Canning, when the Supreme Court unanimously found that President Obama had violated the Constitution in circumventing Congress through his use of recess appointments…

Moreover, a ruling against the administration would mean that Obama has been responsible for ordering what could amount to billions of dollars to be paid from the federal Treasury without authority. And it would mean the administration has committed yet another violation of the separation of powers.

It’s impossible for me to believe that the Supremes generally and John Roberts specifically, having eaten boatloads of crap from the right for upholding ObamaCare on the challenge to the individual mandate, are now going to pull a “never mind” and torch the whole thing because of a drafting ambiguity, but hope springs eternal for separation-of-powers aficionados like Turley. So much for the legal angle to all this.

Here’s the political angle: What happens if the D.C. Circuit does nuke the subsidies eligibility for federal-exchange consumers? Would the House GOP even consider a bill reinstating those subsidies in exchange for other concessions of some kind? Before you say “hell no,” bear in mind that there’ll be a lot of voters out there PO’d that they’ve just lost their sugar from Uncle Sam and a lot of Democrats whispering to them that they could have that sugar back if only the damned Republicans didn’t want to see them suffer. Plenty of hay could be made before the midterms. Phil Klein, who has more faith in Boehner and crew than me, thinks there’s no way House Republicans would dare cave on subsidies, certainly not before SCOTUS has ruled on this at least. Hopefully he’s right — emphasis on “hopefully.” But maybe it’s all moot: If the GOP held out and refused to reinstate the subsidies, His Majesty would be tempted to issue some sort of dubious executive order (say, right around November 1st) proclaiming that the subsidies will be reinstated under HHS’s authority. That might be illegal, but even if it is, what’s anyone going to do to stop him? And even if there is a way to stop him by suing him over it, how will that stop him in time to prevent him from reaping the benefits at the polls on election day? Gulp.

LEC here again — I am figuring on a 2 to 1 decision that overturns the trial court . Given the editing blooper , and the clear intent of Congress originally in drafting the thing , it is not up to the courts to rewrite it , and it is not up to H.H.S. and the Infernal Revenue Service to ” screw around ” with it .

.. the questions after that :

[-] what do the courts do — the newer and more liberal majority may want to get their hands on this one . But the Supremes may decide to intervene , once the Government appeals , and take it away from them . That would force the appeal up to the US Supreme Court , and they would not overturn that ruling …

[-] House GOP — it may well give them leverage . But His Lordship has shown no inkling towards compromise . He never does . Remember , OCC is THAT unpopular , I  will bet that the House GOP will do nothing , pending an appeal to the Supreme Court ..

[-] You – Know – Who — He is stupid , but is he that stupid to try a ” power play ” on the subsidies before the elections . If he did (or does) , he will definitely face impeachment proceedings after the elections . Congress then may well have had enough …

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… Well , What do I Think [Hobby Lobby v Sebelius] …

Posted by paulfromwloh on Sunday,March 30th,2014

.. drawn in part from ScotusBlog , and in part from National Review ‘ s Bench Memos …

.. I think that the government is in big trouble ….

.. [h/t — ScotusBlog]..

.. [link] to the blog post ..

.. — Note — this stuff by Amy Howe of ScotusBlog helps bring the dry rigamarole of law and legal arguments into plain English . It tries to translate the legal schtuff that most folks (even me , sometimes) do not always understand , and bring it to everyday folks in a simpler and plainer manner , especially less verbose …

.. back to the wars — women can still get their health insurance and their benefits . It is just that they will not be able to get their corporate bosses to finance the abortion – related part of it , the public financing of which is already illegal under federal law .

.. also , it is a substantial burden to force people over their moral objections to pay for things that for which they have substantial and paraamount moral objections to , such as abortion and abortifacient drugs . It is not that women cannot get them . The companies are not interfering in that . It is that the government cannot force individuals , either directly (as a sole proprietorship or partnership) or as a corporation (indirectly) to violate their firmly held First Amendment rights to  freedom of religion and finance something that for which they have sincerely and deeply held moral objections …

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