Archive for the ‘Courts’ Category

Olens takes on another federal overreach: Dodd-Frank

In Washington, Congress passes and the president signs a vast expansion of federal power over a large and critical industry.

In corporate boardrooms, business executives believe that law usurps their rights. In state capitals, attorneys general believe it infringes on states’ sovereignty and puts them at great financial risk. The two groups come together and sue to overturn the law.

A recap of the Obamacare lawsuit decided by the U.S. Supreme Court last summer? Yes, but it’s also the lead-up to another legal battle stemming from Democrats’ dominance of Washington in 2009 and 2010.

Last month, Georgia joined a lawsuit seeking to overturn major portions of the Dodd-Frank financial reform law of 2010. The law’s stated intent was to avoid failures of “too big to fail” banks and subsequent market panics, of the kind we saw in autumn 2008.

There are good arguments that the law’s authors got the policy wrong, and enshrined “too big to fail” in federal law rather …

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A tentative win for religious liberty in Obamacare lawsuit

A federal appeals court said Tuesday it will hold the Obama administration to its promises to change Obamacare’s controversial contraceptives mandate for certain religiously affiliated employers such as colleges. I guess the judges are now part of the “war on women.”

If so, they are joined by the Obama administration itself — which, as the court noted in its Tuesday order:

represented to the court that it would never enforce [the rule] in its current form against the appellants [Wheaton College and Belmont Abbey College] or those similarly situated as regards contraceptive services. … There will, the government said, be a different rule for entities like the appellants …

But promises aren’t enough. The court said it took the administration’s pledge during oral arguments to create a different rule for the colleges and similar organizations to be “a binding commitment,” and it ordered the administration to provides updates about progress made toward the creation of the new rule …

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Why the lawsuit against BoA/Countrywide could be a blockbuster

The name on the lawsuit is “Bank of America,” but the key word to those in the Beltway is “Countrywide,” one of the most reckless — and politically connected and active — companies involved in the subprime meltdown.

First, the key parts of the AP story about the lawsuit, in which the government is seeking more than $1 billion in damages:

U.S. Attorney Preet Bharara said Countrywide Financial, which was later bought by Bank of America, churned out mortgage loans from 2007 to 2009 without making sure that borrowers could afford them.

“The fraudulent conduct alleged in today’s complaint was spectacularly brazen in scope,” Bharara said in a statement. He said the suit was partly to recover money that Fannie and Freddie lost from defaulted loans.

Bank of America had no immediate comment.

Countrywide sold the loans to Fannie Mae and Freddie Mac, which were left to pay for the loans when they defaulted, according to the lawsuit. Fannie and Freddie were effectively nationalized in …

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How tort reform could increase access to justice for patients

Limiting damages in medical malpractice cases — what most people think of as “tort reform” — could become a hot topic again if Georgia legislators finally try to reimpose the caps thrown out by the state Supreme Court in 2010. Reformers, of course, say the threat of multimillion-dollar lawsuits prompts doctors to practice defensive medicine, needlessly costing our health-care system billions.

Critics say the caps effectively reduce access to the justice system by making malpractice cases less attractive to plaintiffs’ attorneys. But judicial access could hardly be lower than it is under the current system.

That’s the upshot of a new study by an Emory University law professor, who suggests another feature of today’s jackpot justice — the high cost of pursuing a malpractice case — already prevents most people injured through medical negligence from having their day in court.

“The vast majority of attorneys reject the majority of cases they screen,” says Joanna …

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11th Circuit upholds most of Georgia’s illegal-immigration law (Updated)

UPDATE at 5:50 p.m.: Regarding the section of the law that makes it illegal to knowingly transport or harbor illegal immigrants, the court found not only that Georgia’s law infringes on the federal prerogative to make immigration law. The court further ruled that Georgia could not make it illegal to induce an illegal immigrant to enter the state once already present in the U.S. Those provisions remain blocked from taking effect by a court injunction.

To be clear, and to correct my inapt phrasing in the original post, the court did not say the other sections of the law are constitutional. A lower court had enjoined two sections from taking effect while the question of constitutionality is argued. The section of the law dealing with checking detainees’ immigration status is still being challenged, although the Supreme Court’s ruling about a similar law in Arizona suggests that section is likely to remain in place until and unless there are specific challenges to the way it is …

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Medicaid expansion is a bad deal for Georgians

Amid the confusion about who won what in the Supreme Court’s Obamacare ruling last month, there was one clear winner: the states.

When Georgia and a couple of dozen other states joined Florida’s lawsuit to overturn the 2010 health-care reform, they were contesting the part of the law that affected their governments: the Medicaid provisions. Obamacare called for expanding Medicaid to cover anyone earning up to 138 percent of the federal poverty level; it aimed to force states to go along with this plan by threatening to withhold current Medicaid funding if they didn’t acquiesce.

The states argued this coercion was unconstitutional, and seven of nine Supreme Court justices agreed with them. Instead of striking down the provision altogether, however, the court offered a remedy: Washington couldn’t take away what it’s now giving states for Medicaid, but states could choose whether to participate in the expansion.

That’s left some governors — including our own Nathan …

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Obamacare ruling offers good possibilities, but no substitute for a win

Generals are often accused of “fighting the last war.” After Thursday’s Supreme Court ruling upholding Obamacare, conservatives are asked to pin our hopes on the notion Chief Justice John Roberts was fighting the next war.

This is a tempting proposition. There is the fact Roberts, in the main opinion of the court, and the four dissenting justices endorsed a limit to the power Congress wields under the Commerce Clause of the U.S. Constitution. As this was the key judicial theory advanced by the law’s opponents, one that sought to halt a decades-long expansion of the meaning of “regulating” interstate commerce, that is no minor feat. It could even provide the starting point one day for further rollbacks of bad Commerce Clause precedent, starting with the awful 1942 Wickard decision that found a farmer affected interstate commerce by growing his own wheat.

There is also the fact the court’s majority decided the “penalty” for non-compliance with Obamacare’s …

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Obamacare upheld: What it means now and in the future

Challenging Obamacare on constitutional grounds was never what anyone on the right wanted to rely on as a Plan A. “Repeal and replace,” the mantra of conservatives since Congress approved the health-insurance overhaul in 2010, is a high bar requiring the election of a president and congressional majorities dedicated to taking Obamacare off the books and passing more sensible reforms in its place. But persuading the Supreme Court to void the law by declaring it beyond Congress’ power to regulate interstate commerce, while sincerely believed to be correct, was always a higher bar to clear.

The irony is that we cleared the higher bar, and have nothing to show for it.

Do not confuse this for spin: Barack Obama and the Democrats won a clear policy victory today in seeing the court uphold their health law. There’s no denying that. Any other outcome would have been a debacle for them. This is the opposite of a debacle. That would be a victory.

That said, five of the court’s nine …

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Obamacare upheld — as the tax Obama promised us it wasn’t

UPDATE at 11:59 a.m.: The president is expected to comment on the ruling at 12:15 p.m. One wonders how his remarks will square with White House talking points from the Obamacare debate, such as:

What President Obama is proposing is not a tax, but a requirement to comply with the law.

and

People are required to obey the speed limit and have to pay a penalty if they get caught speeding? Does anyone consider that a tax?

and

People are required to have car insurance and can be fined if they are caught without it. Is that a tax?

In one of the court’s other decisions today, United States v. Alvarez, the justices upheld American’s First Amendment rights to lie about receiving military honors. In the Obamacare ruling, the majority upheld politicians’ First Amendment rights to lie about their policies. Not that anyone thought that kind of lying would ever stop.

UPDATE at 11:42 a.m.: At first blush, any cheers for the court’s declining to uphold Obamacare based on the Commerce Clause …

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In Arizona case, court doesn’t betray its alleged ideological gap

Oh, that zany, right-wing Supreme Court.

Liberals have been working themselves into a frenzy about the possibility that the court’s four conservative justices and the less-predictable Anthony Kennedy will overturn the 2010 federal health-care reform, a.k.a. Obamacare. Such a ruling figures into two of the “5 Signs of a Radical Change in U.S. Politics,” according to The Atlantic’s James Fallows. “Court packing,” the idea of adding justices to the court which was last threatened by Franklin Roosevelt when the court wouldn’t accept as constitutional some of his New Deal programs, is already being suggested on the opinion pages of the Washington Post.

Other commentators have warned — presumably for the benefit of any justices who might peruse their columns or blogs — that the court risks discrediting itself if it rules in a way that just happens to go against President Barack Obama. Unexplained is exactly how and why this discrediting will occur, given that majorities of the …

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