Lake Erie Conservative

thoughtful discussion(s) about issue(s)

Posts Tagged ‘Supreme Court of the United States’

… This Court Case has the Liberals Scared to Death …

Posted by paulfromwloh on Tuesday,December 24th,2013

.. and they have a likely settlement (it would be my guess) to thank for making the case ” moot ” at the U.S. Supreme Court …

.. otherwise , there were at least 6 votes to shoot down the union ‘ s favourite tactic these days , the neutrality agreement …

.. [h/t the Wall Street Journal] …
.. [h/t Cornell Law Library] …

..[link] to the WSJ editorial [from December 14th , 2013]

..[link] to the law library case description …
(*note* — the Cornell University Law School library site is a real dandy . It is fantastic for so many things legal . If you can contribute , great . feel free to make use of it for your legal needs …)

Does an agreement stipulating that an employer will remain neutral and give access to employee information in exchange for a union’s support of an employer-friendly ballot initiative, constitute a “thing of value” in violation § 302 of the Labor-Management Relations Act; or, must a thing of value be monetary for purposes of § 302?

.. the case is Unite Here Local 335 v Mulhall . It was up before the Supreme Court for oral argument . They were already held , but in December , the case was ” DIGed , ” or dismissed as improvidently granted . Basically , the case was (I think) settled to prevent a unions loss at the Supreme Court . I believe that there were definitely 5 , and probably 6 , votes to win the case . It would have set a disastrous nationwide precedent , taking away one of the union ‘ s favourite tactics , the neutrality agreement .

.. It would also , by extention , neuter any union ‘ s attempt at a corporate campaign against a company . The loss of the neutrality agreement would render the c. c. useless , since the company could agree to nothing , and the union could receive nothing in return . Neither side could do anything to stack the deck . It would empower individual members , as it had before , to sue to stop the tactic .

.. Eventually , a new case will make it to the court . The 11th Circuit case rings out loud as a bell , and sets a pattern that sets the way for a new fact pattern to be brought before the court . This time , the legal representatives will be prepared to block any potential settlement before a decision is reached ..

.. from the WSJ editorial ..

This has large potential implications for Big Labor, which has increasingly sought these neutrality agreements to make it easier to organize a work site. The rights of workers get washed out in such bargains that violate the Taft-Hartley Act’s ban on giving a “thing of value” to help organizing. Let’s hope the Justices find another case soon to make clear that such sweetheart deals are illegal.

.. LEC here again — So do I . I believe that a pattern has been set , and the Right – to – Work folks will have several cases that will come through . I hope that they do …

Posted in constitutional opinion, illegality, legal opinion, personal opinion, political strategy | Tagged: , , , , , , , | Leave a Comment »

… Here We Go [plural marriage ruling in Utah] …

Posted by paulfromwloh on Monday,December 16th,2013

.. ever since Windsor v US and Hollingsworth v Perry came out , people have been warning about this . They brought out warnings about it long before those 2 rulings emerged from the last U.S. Supreme Court term . Now , it gets much worse ..

.. the cause of so – called ” gay marriage ” continues to advance . Gays and lesbians are continuing their unabashed legal offensives , even against states who have constitutional prohibitions against this immoral offense . The radicals in the federal judiciary continue to accomodate them . How gross is that ?

.. ” Gay Marriage ” is unnatural and immoral . It must not be allowed to happen . Marriage is the natural and moral coupling between one man and one woman . It is that simple , folks . That is it …

[h/t —]

.. Now , this . A federal judge in Utah has ruled that major parts of the state ‘ s polygamy prohibition law are unconstitutional . Yes , unconstitutional . Yea , amazingly enough … [article]

[update] [h/t —]

.. an update to this — the ruling is not quite that dire , at least not yet . It does effectively de – criminalize polygamy in Utah . No , the state will not touch this . It cannot . Utah ‘ s admission to the United States was made on condition that you-know-what was banned . So , they cannot go back on this .

.. However , the courts can act in this area . I expect them to continue to do so . The TLC ” Sister Wives  ” could appeal the partts of the ruling that they lost . The state will likely appeal , itself . Since Utah is in the 10th Federal Appeallate Circuit , they have a decent chance of winning an appeal . Not great , but a decent chance .

.. LEC here — given the legal environment , especially with those two ” gay marriage ” cases and Lawrence v Texas , eventually polygamy will be legalized . Not that I like it . I do not , not at all . Given the appalling lack of quality of judges that His Lordship is appointing to the bench , one should not be surprised …

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… Excellent (Pro Life Decision in Texas) …

Posted by paulfromwloh on Tuesday,November 5th,2013

… from CNSnews …

AUSTIN, Texas (AP) — A federal appeals court on Thursday ruled that most of Texas’ tough new abortion restrictions can take effect immediately — a decision that means a third of the state’s clinics that perform the procedure won’t be able to do so starting as soon as Friday.

A panel of judges at the 5th Circuit Court of Appeals in New Orleans said the law requiring doctors to have admitting privileges at a nearby hospital can take effect while a lawsuit challenging the restrictions moves forward. The panel issued the ruling three days after District Judge Lee Yeakel said the provision serves no medical purpose.

In its 20-page ruling, the appeals court panel acknowledged that the provision “may increase the cost of accessing an abortion provider and decrease the number of physicians available to perform abortions.” However, the panel said that the U.S. Supreme Court has held that having “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate” a law that serves a valid purpose, “one not designed to strike at the right itself.”

The panel left in place a portion of Yeakel’s order that prevents the state from enforcing the U.S. Food and Drug Administration protocol for abortion-inducing drugs in cases where the woman is between 50 and 63 days into her pregnancy. Doctors testifying before the court had said such women would be harmed if the protocol were enforced.

After Yeakel halted the restrictions, Texas Attorney General Greg Abbott had made an emergency appeal to the conservative 5th Circuit, arguing that the law requiring doctors to have admitting privileges is a constitutional use of the Legislature’s authority.

“This unanimous decision is a vindication of the careful deliberation by the Texas Legislature to craft a law to protect the health and safety of Texas women,” Abbott, a Republican who is running for governor, said in a written statement.  Lawyers for Planned Parenthood and other abortion providers had argued that the regulations do not protect women and would shut down a third of the 32 abortion clinics in Texas.

Twelve of Texas’ abortion clinics won’t be able to perform the procedure starting as soon as Friday.  In a statement Thursday, Planned Parenthood said the appeals court decision means “abortion will no longer be available in vast stretches of Texas . ”        “This fight is far from over,” Planned Parenthood President Cecile Richards said in the statement. “This restriction clearly violates Texas women’s constitutional rights by drastically reducing access to safe and legal abortion statewide.”

The court’s order is temporary until it can hold a complete hearing, likely in January.

.. LEC again here — Excellent news out of Texas — the activist witch district court judge ‘ s ruling was struck down . Only in part , for now . When the case comes up for argument in front of the appeallate court panel in January (presumably , in front of the same judges) , the case can likely come after the entire district court ruling . The fact that the same judicial panel will hear the case bodes well for the subject material at hand …

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… How Dense is Main InJustice …

Posted by paulfromwloh on Thursday,October 17th,2013

.. and with this one , you can add Main MisEducation to the mix …

Race-Based Admissions after Fisher

.. It is depressing that the legality and morality of racial discrimination in education continues to be a contested issue.

English: United States Supreme Court

English: United States Supreme Court (Photo credit: Wikipedia)

.. You have to consider the so – called “guidance” that was issued by the ObamaCraps for universities on the meaning of the Supreme Court’s decision last June in Fisher v. University of Texas. The guidance (and accompanying “Questions & Answers “)predictably reiterates that the administration “strongly support[s] diversity” — including, of course, using discrimination in order to achieve it — but, as a legal matter, this is irrelevant if a school is sued .

.. The fact is that this “guidance” is designed not to help schools follow the law , but to push them to adopt dubious race-based policies that the Supreme Court has warned against . These policies will continue to provoke and prompt lawsuits , but are policies that the ObamaCraps and its political allies stubbornly support. The whole tone of the new guidance is to offer encouragement to schools that want to engage in racial discrimination: The administration promises that it “will continue to be a resource” for such schools. It is as if the FBI offered eager encouragement to state and local police that wanted to engage in racial profiling without violating the law.

.. What is worse though, is that the guidance is probably telling many schools just what they want to hear: Study after study by the Center for Equal Opportunity has shown that universities across the country are only too happy to weigh race very heavily indeed in their admissions. What they end up doing is taking up race as not one factor  , but as the primary factor . Which is not what the Supreme Court  had in mind , or intended .

.. If they (and their lawyers) read the Fisher decision honestly, it ought to make them gulp and reconsider such discriminatory policies. And I should add that, in the run-up to the ruling, it became clear how increasingly unpopular and discredited racial preferences in admissions are, even among liberals who had once supported them. This ought to prompt some serious soul-searching among university presidents on whether “diversity” is really worth the price of racial discrimination.

In Fisher, the U.S. Supreme Court ruled that, before race can be used in university admissions, a university must give “serious, good faith consideration of workable race-neutral alternatives” to achieving the goals that are purportedly being achieved by weighing race in admissions decisions. The high court said that the lower court, on remand, “must assess whether the university has offered sufficient evidence that would prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity.” The Court also said that there must be “a careful judicial inquiry into whether a university could achieve sufficient diversity without using racial classifications.” And: “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.” A nondiscriminatory approach must be used if it “could promote the substantial interest about as well and at tolerable administrative expense.”

There is certainly enough in this language to justify an aggressive and thorough challenge to universities’ use of race in admissions, and so they should expect as much. Universities must now be able to document their consideration of alternatives to weighing race, including any reason for not adopting such alternatives. If they do not , they will regret it .

..  A particular example would be documentation of how the educational benefits of considering race in admissions would be greater than the educational benefits of considering other, nonracial factors instead. How is education improved by using race, exactly — and how much, exactly, are those benefits of “diversity” enhanced by considering race in admissions, rather than nonracial characteristics that provide actual diversity in backgrounds, such as income or parents’ professions/educational level or geography or age or work experience or whatever?

If a nonracial admissions system would achieve similar benefits and with fewer costs, then the consideration of race cannot be said to have been narrowly tailored to the achievement of those benefits.

More fundamentally, schools must now be able to document why and how race is considered in student admissions and must periodically review and rejustify those considerations. And they must be able to document not only (a) the anticipated benefits but also (b) the possible costs associated with the consideration of race in student admissions at the university — and especially, with regard to the latter, the relative academic performance of members of groups that have received such favorable consideration …

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… Absurdity begets Absurdity …

Posted by paulfromwloh on Tuesday,October 15th,2013

.. at least , now , we get a chance to whack back at the Climate Science lunatics . After the  judicial fraud in Mass V EPA , we get a chance to get even with those idiots . Their attempts at so – called ” global warming science ” have been debunked . The follow on science behind their pursuit of climate change is not far behind . And now , with the new case ,  Utility Air Reg Group v EPA  , we have a chance to hit back …

… from Professor Jonathan Adler , @ the Volokh Conspiracy …

This morning, the Supreme Court granted certiorari in Utility Air Regulatory Group v. EPA concerning the Environmental Protection Agency’s regulation of greenhouse gases under the Clean Air Act. This is quite significant. Although the grant is limited, it focuses on one of the most important legal questions raised by this litigation, and puts some of the EPA’s regulation of greenhouse gas emissions from stationary sources in play.

Harvard’s Richard Lazarus comments:

The Court’s jurisdictional ruling is significant in terms of both what the Court granted and did not grant. The regulations the Court has agreed to review represent the Obama Administration’s first major rulemaking to address the emissions of greenhouse gases from major stationary sources across the country. At the same time, the Court declined to review EPA’s determination that greenhouse gases from new motor vehicles endanger public health and welfare and therefore has left intact the government’s current regulation of motor vehicles emissions to address climate change.

I largely agree, but would go farther in certain respects.

Here’s some background (see also my prior posts here and here). Various states, industry groups, and activist organizations had filed cert petitions – nine in total – and others filed amicus briefs (including yours truly) urging the Court to take this case. The Court was asked to consider many different questions, but only agreed to consider one of its own devising. Specifically, the Court granted six of the nine petitions and agreed to consider the following question: “Whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.” In other words, the Court wants to know whether the EPA was required to apply Section 165 and Title V of the Act to greenhouse gases once it regulated GHGs from motor vehicles. If not, the EPA need not have rewritten these portions of the Act to avoid the “absurd results” of applying these provisions to carbon dioxide.

In my view, the grant is welcome, despite the limitations. Many of the questions for which industry sought review, such as whether the EPA properly considered the relevant scientific research or set permissible standards for vehicular emissions under Section 202 of the Clean Air Act, were not cert worthy. The issue embodied in the Court’s reformulated question presented, on the other hand, most definitely is. While I would have liked the Court to reconsider Massachusetts v. EPA, particularly given that decisions adoption of faulty premises about how the Clean Air Act works, such a grant would have been a heavy lift. The Court does not lightly reconsider its own statutory interpretations. This is still a welcome grant. (That’s my view, however, as I suspect Professor Lazarus disagrees.)

So the Court will not reconsider Mass v. EPA in this case, but the question presented will force the Court to confront the consequences the Mass decision. In particular, this case will force the Court to reconsider the assumption made by Justice Stevens in Mass v. EPA that application of the Clean Air Act to GHGs would not produce absurd results. As we’ve since learned, applying the CAA to GHGs does produce such results, particularly if the regulation of GHGs under Section 202 requires regulation of GHGs under the Clean Air Act’s Title V and PSD provisions. These portions of the Act expressly require the EPA (and state permitting authorities) to regulate more facilities than it could ever hope to have the resources to regulate. The EPA has used this fact to justify rewriting the Act in its regulations, and so the Court’s grant presents the opportunity to question whether the EPA should have at least considered an alternative construction of the Act. In other words, the Court now has the opportunity to force the EPA (and the D.C. Circuit) to adopt an interpretation of the CAA that vindicates the Court’s interpretation in Mass v. EPA by avoiding the absurd results EPA’s approach has generated. We’ll see whether the Court actually takes that opportunity.

… LEC here again — the grant of “certiorari” may well be limited , at least at this time . However , indirectly , it gives the Court a chance to revisit the logic behind the science behind the decision , as well as the law .

.. given the reputation of some times that the link may not work , I wanted to include a copy of a [Clean Air Act as Obstacle (Greenhouse Gas regs)] to Professor Adler ‘ s new paper … oops , wrong [lProliferation of GHG Reg under the OC [Adler]]

.. Remember , a great deal of the “ClimateGate” monkeyshines has come out since 2007 , and in the case of the ObamaCrap antics , since 2009 . The Supreme Court cannot ignore that , and that the lack of effect of the greenhouse gases on our climate is clear and undeniable . The Court used that effect the last time in Mass to help rope in the regulation , now the other side can use logic , science , and the law to “cut the rope …”

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… Congratulations to Megyn Kelly !! [FoxNews] …

Posted by paulfromwloh on Tuesday,October 8th,2013

.. and her new show , the Kelly Files .

.. Ever since I first heard of her (as Megyn Kendall) , she was amazing and dynamic . She was first a lawyer , then a news reporter at ABC . Then , she became FoxNews ‘ legal correspondent , chiefly covering the federal courts in general , and the U.S. Supreme Court , in particular . Eventually , she was moved to the afternoon , given her own show at FoxNews . That was only the beginning .

.. Now she has been promoted into primetime . It will be interesting to see what happens . I do intend to watch and see , most every night  …

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… Well , Miz Hillary is back in the Political Arena …

Posted by paulfromwloh on Tuesday,August 13th,2013

.. and , gues what ??

.. It is fun time for the good guys and gals on the Right . Especially when Miz Hillary sticks her nose into a local issue , and also sticks her foot in her mouth in the process . Somebody should remind her that legal id (ie , a driver ‘ s license or (free) state id)) is needed for many everyday common tasks . It is not racisit , or a racial act , to ask for one .

.. Miz Hillary ‘ s comments are racially oriented , and very likely racist themselves . See for yourself …

Hillary Clinton calls for restoration of voter rights suppressed by Supreme Court’s Shelby decision

by Meteor BladesFollow

HIllary Clinton speaking at ABA convention in S.F. 2013. (posted by MB)

Hillary Clinton spoke of the need to restore voting rights taken away by Supreme Court’s Shelby ruling.

In what she later announced would the first in a series of policy-oriented speeches she will deliver over the coming months on the “strains on our social contract,” former Secretary of State Hillary Clinton gave a passionate and wide-ranging address to the attendees of the American Bar Association’s annual convention in San Francisco Monday, telling them of the need to restore the protections of the Voting Rights Act. She excoriated efforts in some states to deal with the “phantom epidemic of election fraud” as a means of keeping minority and younger voters away from the polls.She pointed out that in 2013 so far, more than 80 bills restricting voting rights have been introduced in 31 states. She singled out four states in particular: North Carolina, South Carolina, Florida and Texas.

“Now, not every obstacle is related to race, but anyone who says that racial discrimination is no longer a problem in American elections must not be paying attention.And despite the best efforts of many well-intentioned election officials, discrepancies in resources across precincts and polling stations still disproportionately impact African Americans, Latinos and young voters.” […]

“Unless the hole opened up by the Supreme Court’s ruling is fixed […] citizens will be disenfranchised, victimized by the law instead of served by it, and that progress, that historical progress toward a more perfect union, will go backwards instead of forward,” Clinton said.

The ABA’s House of Delegates approved a resolution Monday urging Congress to take quick action to restore provisions of the Voting Rights Act that the Supreme Court gutted in its Shelby County v. Holder ruling.

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… the Battle of the Titans (@ the Supreme Court)

Posted by paulfromwloh on Tuesday,July 2nd,2013

the Battle of the Titans

High Court to Hear Obama Recess Appointments Case

.. The Supreme Court stepped into an important constitutional dispute Monday between President Barack Obama and congressional Republicans over the chief executive’s power to make recess appointments .

.. The justices said they will review a federal appeals court ruling [Noel Canning  v N.L.R.B.] that found Obama violated the Constitution when he bypassed the Senate last year to appoint three members of the National Labor Relations Board . It is the latest chapter in the partisan political wrangling between GOP lawmakers and Obama over appointments to the labor board and the Consumer Financial Protection Bureau. Republicans want to rein in both agencies ‘ powers.

.. The Constitution does give the president the power to make temporary appointments to fill positions that otherwise require confirmation by the Senate , but only when the Senate is in recess . At issue for the Supreme Court: What constitutes a congressional recess , and does it matter when a vacancy occurs ? The nature of POTUS ‘ current actions, during brief Senate breaks that Congress explicitly said were not formal recesses, is driving the current legal controversy.

.. The case stems from Obama’s decision to fill the three NLRB vacancies on Jan. 4, 2012 , with Congress on an extended holiday break. At the same time, however, the Senate held brief sessions every few days as part of the Republicans’ explicit strategy . The Senate was forced to do so by the House , by not giving its consent to not meeting for more than three  days .  This  gap in metting is  the commonly accepted definition of a ” recess . ” By doing so  ,both chambers would act to not allow Obama  from filling vacancies through recess appointments.

.. He also used a recess appointment to install Richard Cordray as head of the financial protection agency, which the GOP had blocked for a year and a half.

.. Two of the three judges also said that only positions that come open during a congressional recess can be filled through a recess appointment. The court did not address the issue of how short a break can count as a recess . If it stands, the ruling could invalidate hundreds of board decisions, and call into question the legitimacy of regulations issued by the Consumer Financial Protection Bureau, many of which affect the mortgage industry. The NLRB also would effectively be shut down, because a ruling against the administration would leave the board with only one member, and it needs three to conduct business.

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… Give It a Little Time …

Posted by paulfromwloh on Wednesday,June 26th,2013

… I want to give it a couple of days , maybe , before fully digesting the Supreme Court ‘ s actions over the last couple of days . And , Boy , it was quite a bit of action . Yea , the Fisher decision (racial preferences) was a bit of a surprise . The Shelby County decision (voting rights act — enforcement) was a dandy . It was a warm – up act for what came up next .

.. Next up came the two defence of marriage cases . No , it was not good . But , believe it or not , it could have been worse . Hollingsworth is headed back to California , and the brawling in court is going to start all over again . Contrary to public statements , gay marriages in California will not start up again . The judgement that might be entered in Hollingsworth may well be a default judgement . It only applies to the two people involved in the case , not anyone else . It should not take effect statewide . It also should make Governor Brown and the state officials look bad , because they are failing to do their jobs . Thosese referenda are the written laws and constitutional amendments of the State of Californaia , and they have a sworn duty to act to defend them , whether they like it , or not .

.. The end of June always seems to be crazy time on North Capitol Street . However , the other courts of our nation will continue . And , so will I .

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… Thomas Perez is So Busted …

Posted by paulfromwloh on Monday,June 17th,2013

Thomas Perez is So Busted

… and was said in the ’60s , the whole world is watching …

LEC here — I wanted to paste this together , and repost it on my blog , as one unit , with links [] and [] with the great news that Hans announces below

[h/t to pjmedia , and one hell of a lawyer and writer , hans von spakovsky !]

SCOTUS Takes Up Mt. Holly Case

Posted By Hans A. von Spakovsky On June 17, 2013 @ 7:04 am In Politics

The Supreme Court has just granted certiorari in Mt. Holly, NJ v. Mt. Holly Gardens Citizens, so it will hear arguments on the case in the fall.  This is the case I  previously wrote about that involves the questionable  “disparate impact” legal theory that has gotten Assistant Attorney General for Civil Rights (and Obama Labor Secretary nominee) Thomas Perez into so much trouble.  The Court granted review despite a brief from the Solicitor General telling the Supremes that they should not take the case.  No doubt, civil rights groups will now do everything they can (perhaps with the help of the administration) to convince the town of Mt. Holly to dismiss its case before their pet legal theory gets tossed out by the Supreme Court.

LEC again — you can bet that the Supremes are watching this .

[-] the town of Mt Holly  has taken it this far . I strongly doubt that they are willing to settle . Able to settle , yes . Willing , No . Especially with the spotlight this one is going to get .

[-] the pressure that the interest groups and the ObamaCraps are going to put on them will be enormous . They will play hardball , fair or foul , to get the town to settle . However , they need the Court ‘ s permission . No , not the district court , this time .

[-] One thing that this does is that it gets the case out of the hands of the ObamaCraps . They would not and will not dare pull a rerun of what Thomas Perez pulled in the Magner v Gallagher case , out of the 10th Circuit [St. Paul , Mn] . They may want to , but not with even the chance that the chicanery could screw up Cory Booker ‘ s Senate election . Oh , Booker has to run in 2014 . Someone may want to run then , especially if it looks like a strong Republican year , and Christie wins in a blowout , with coattails .

[-] There are at least 4 votes to shoot down disparate impact . I am thinking that there will be at least 6 [Scalia , Thomas , Alito , CJ Roberts , Kennedy , plus either Sotomayor or Breyer ] . Forget about Ginsberg . Also , given Perez ‘ monkeyshines , I do not think that Kagan can participate in the case .

[-] Briefs , especially the amicus briefs , and the arguments too , are going to be World War III . This one is going to be one of the highlights of the next Supreme Court term .

[-] You can forget about Perez getting a confirmation vote for Labour Secretary . There is no way in hell that he will get it , especially with the other cases on Presidential powers on recess appointments pending .

[-] ditto , POTUS ‘ pseudo appointees to the D.C. circuit . The current cast of regular appeallate judges , plus Srnivisian (the new guy , a conservative , of all things) , plus the senior judges (7 or 8 of them) can easily handle the workload .

PJ Media » More Justice Department Chicanery: Thomas Perez and ‘Disparate

Impact’ » Print

More Justice Department Chicanery: Thomas Perez and ‘Disparate Impact’

Posted By Hans von Spakovsky On June 1, 2013 @ 12:00 am In Judiciary,Legal,US

News | 19 Comments


One of the administration’s favorite legal theories, “disparate impact,” may get

taken up again by the Supreme Court. Will the administration try to engineer

some kind of payoff to take the issue away from the Court — again?

In June 2012, the town of Mount Holly, N.J., petitioned the Supreme Court to

review the legitimacy of racial discrimination claims premised solely on a

disparate impact theory under the Fair Housing Act. Under this theory, a policy

— such as requiring high credit scores for loans — can be completely neutral,

but if it yields a disparate impact on a particular racial or gender group, an

institution using that policy can be held liable for discrimination. In other

words, an entity can be found to have discriminated even if it didn’t actually

intend to discriminate.

Thomas Perez, the assistant attorney general for Civil Rights at the Justice

Department and President Obama’s nominee to be Labor secretary, has used

disparate impact to extort huge settlements from the financial industry under

the Fair Housing Act (FHA).

Here, Mount Holly is alleged to have discriminated simply because it wanted to

redevelop and rebuild a rundown housing development in a high-crime area where

almost half the residents are black. Thus, the rebuilding plan would have had a

statistically larger impact on black residents than white residents.

The issue of whether a mere disparate impact claim violates the FHA, or whether

the more rigorous standard of intentional discrimination is required was before

the Supreme Court last year. In that case, Magner v. Gallagher, the city of St.

Paul, MN, was accused of violating the FHA because it aggressively enforced the

health and safety provisions of its housing code. Slumlords sued the city,

claiming that enforcement had a disparate impact because the majority of their

tenants were racial minorities.

In other words, they were using the FHA to obstruct the city’s attempt to

improve the horrible living conditions of poor families.

Thomas Perez concocted a quid pro quo deal to have the Magner case dismissed —

even though the U.S. was not a party in the case. At the time, the federal

government was considering intervening in a separate False Claims Act case worth

almost $200 million against St. Paul. The city had received tens of millions of

dollars from the federal government based on what career attorneys within the

Justice Department called a “particularly egregious example of false

certifications” by the city.

Perez told St. Paul that the Justice Department would stay out of the False

Claims Act case if the city withdrew the Magner case that the Supreme Court had

agreed to hear. The city jumped at the deal.

A report from the House Oversight and Government Reform Committee later

concluded that Perez “sought, facilitated, and consummated this deal because he

feared that the Court would find disparate impact unsupported by the text of the

Fair Housing Act.” According to the same report, Perez also attempted to hide

both the deal and his involvement in it.

He even called a key lawyer in the U.S. Attorney’s Office in Minnesota and told

him to make sure there wasn’t “any mention of the Magner case” in the False

Claims Act case files.

Fast forward to the new claim involving Mount Holly: although the U.S. is,

again, not a party to the case, the Supreme Court last October asked the Justice

Department to file a brief advising whether it thought the Court should accept

the case for review.

To no one’s surprise, the brief [1] that Justice recently filed told the Court

it should not take the case. The question of whether disparate impact claims are

available under the FHA “does not warrant review,” it declared. The brief was

filed by Solicitor General Donald B. Verrilli, Jr., and right under his name is

that of Thomas E. Perez.

Verrilli and Perez argue that disparate impact claims are a “reasonable

construction of the statute’s text, structure, and history” and that there is no

conflict in the courts of appeal on this issue. But the brief ends with an

argument you wouldn’t expect from Justice, given Perez’s sub rosa involvement in

getting the Magner case dismissed — especially in light of recent revelations

that he violated federal law and Justice Department rules by using his personal

email account to facilitate the deal.

Verrilli and Perez fault Mount Holly for even raising the issue of whether

disparate impact claims are valid under the FHA. Mount Holly, they write, had

the “opportunity to raise both questions” in the lower courts when the Magner

case was before the Supreme Court,” and therefore can’t bring it up now.

With stunning chutzpah, the government is arguing that Mount Holly should have

been aware that disparate impact was a live issue when review was granted in

Magner v. Gallagher and should have raised the issue in its own case.

This is wrong for two reasons. First, the timeliness of Mount Holly’s claim that

disparate impact does not constitute a violation of the FHA has no relation

whatsoever to someone else’s lawsuit, such as the Magner case. Second, even if

Mount Holly mistakenly thought disparate impact was not a live legal issue when

Magner was before the Supreme Court, Mount Holly would have learned it was a

live issue when the scandal became public over the government’s quid pro quo

deal that bought off St. Paul and caused the city to dismiss the Magner case.

Therefore, the government’s very actions in Magner make the Mount Holly

disparate impact claims in the current case timely.

It should also be noted that while the brief criticizes Mount Holly for not

raising this issue when Magner was before the Supreme Court, it fails to inform

the Court that a senior Justice Department official (whose name is on the brief)

helped get that very case dismissed before the Court could hear oral arguments.

Should we be surprised by any of these convoluted machinations?

Probably not, given what happened the last time disparate impact was being

considered by the Supreme Court. The House report concluded that the quid pro

quo in the Magner case “manipulated the rule of law and pushed the limits of

justice to make” the deal happen.

The Supreme Court should accept the Mount Holly case. And if Justice approaches

Mount Holly with a Magner-esque deal, the city should reject it so the Court can

finally rule on the validity of disparate impact claims.



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