Legal Conservative Blog

Where judicial activism morphs into disregard.

Interesting article. The Ninth Circuit is maintaining its role as the most reversed circuit. Some excerpts below:

Four times this month the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there’s no left-right political divide in the Big Bench’s findings – just right on the law and wrong on the law.

Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn’t like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.

Court Allows Emanuel on Ballot for Chicago Mayor – NYTimes.com.

This is an interesting decision, written by a court that appeared intent on chastising the lower appellate tribunal.  If the supreme court analysis of Illinois law was correct, this is a classic case of judicial activism.  Opinion here: Rahm

Some excerpts from the decision below:

Before proceeding to the merits, we wish to emphasize that, until just a few days ago, the governing law on this question had been settled in this State for going on 150 years. In Smith v. People ex rel.Frisbie, 44 Ill. 16 (1867), this court was faced with a question remarkably similar to that which is before us today.

Thus, from April 1867 through January 24 of this year, the principles governing the question before us were settled. Things changed, however, when the appellate court below issued its decision and announced that it was no longer bound by any of the law cited above, including this court’s decision in Smith, but was instead free to craft its own original standard for determining a candidate’s residency.  See No. 1–11–0033, slip op. at 6-8 (dismissing the foregoing authority in its entirety). Thus, our review of the appellate court’s decision in this case begins not where it should, with an assessment of whether the court accurately applied established Illinois law to the particular facts, but with an assessment of whether the appellate court was justified in tossing out 150 years of settled residency law in favor of its own preferred standard. We emphatically hold that it was not.

But, the concurring justices did not seem to think that the case was that clear cut, partly because of the supreme court allowing prior conflicting precedent:

Suffice it to say, therefore, that this court has not always spoken
clearly on what is meant by residency, and the majority should
acknowledge this fact. This is why both sides in this dispute can
contend that their respective positions are supported by decades of
precedent. Indeed, contrary to the majority’s assertions, the only thing
that is well established in this case is the confusion that has existed on
this subject. The majority today now makes clear that residency for all
purposes is the equivalent of domicile. The majority, therefore, should
overrule those portions of Pope, Park, and Clark which hold to the
contrary.

It is for this reason that the tone taken by the majority today is
unfortunate. Because our own case law was, until today, unclear, it is
unfair of the majority to state that the appellate court majority
“toss[ed] out 150 years of settled residency law” (slip op. at 10),
adopted a “previously unheard-of test for residency” (slip op. 17), or
was engaged in a “mysterious” analysis (slip op. at 16). In order to
properly address the parties’ arguments, the appellate court had to
reconcile this court’s conflicting pronouncements on the question of
residency. That court did the best it could without the benefit of a
supreme court opinion which clarified the standards. By refusing to
acknowledge the role our own case law has played in creating the
dispute before us, the majority unwittingly adds credence to the
inflammatory statements contained in the dissenting opinion below.

Well, as I write this, the arguments are underway in federal court in Pensacola on the cross motions for summary judgment in the case challenging the constitutionality of Obamacare.  For those of you following this case closely, attached are the parties motions and responses that are being argued today:   Plaintiffs MSJ-Memo; Plaintiffs MSJREPLY ; Plaintiffs Resp MSJ-Memo ; US MSJ-Memo; US Resp MSJREPLY ; US Resp MSJ-Memo

I believe the individual mandate is again likely to be held unconstitutional, but that that is likely to be the only count so decided.

The Wall Street Journal has an article today about the attorneys who have done some of the litigation and discovery that has uncovered alleged “robo-signers.  Clearly, there is no excuse if employees of the banks have made false representations in documents, but this issue begs the question of the impact any misrepresentations should have on the foreclosures, and of the broader defense claims  to foreclosures.  Article below:

Paperwork Trail: The Lawyers Who Fight Foreclosures – WSJ.com.

On the broader question of foreclosure defenses, it appears that foreclosures should be  a fairly  simple process, and in fact half of the states in this country do not require a legal case to be filed to effect a foreclosure.

The foreclosure question is what are the terms of the mortgage, and are you in default under the terms of the mortgage.  If you have not made payments for 6 months, you are going to be in default.

Once it is determined you are in default, the only remaining material questions are determining the amount owed on the note with any contractual penalties and interest, needed to establish any deficiency judgment amount, or rarely, if there is equity in the house after the amount of the note is satisfied.

So, other than a defense to foreclosure that payments have been timely made, and note is not in default, or possibly a defense to the total amount of the debt due and owing, which potentially would be an issue in many states in a separate action for a deficiency judgment, what other defenses should remain?

Does it even matter who owns the mortgage note? Clearly, it matters to the owners of the note, but this should be basically legally irrelevant from a home owner’ perspective – 6 months in default, it is clear that someone else other than the homeowner has a better title at that point.

There are no economic free rides, so someone is paying the cost in a case such as the Jacksonville case, where the homeowners have been living in a home they have not paid a mortgage on for five years. Everyone still making mortgage payments should be outraged.

Misrepresentations under oath must always be punished, but it appears that the alleged misrepresentations have no bearing on the underlying homeowner obligations, and should therefore not be a basis to defend being in default on a mortgage.

Today Judge Vinson issued his order on President Obama’s motion to dismiss in the health care lawsuit that Florida and other states have filed in the northern district. The key count, the unconstitutionality of the individual mandate requiring purchase of health care or a penalty survived, as did a coercion count in regard to the state participation in the federal health scheme. Several other counts were dismissed, because of existing Supreme Court precedent that cannot be changed but by the Supreme Court, but the individual mandate count surviving is key. Health Care Order on Motion to Dismiss

Amending the Constitution by Convention: A Complete View of the Founders’ Plan | Goldwater Institute.  The Goldwater institute has put out an interesting historical argument in support of limited constitutional conventions being contemplated by the founders. Most of the conclusions reached in the report are fairly non- controversial, with the exception of the analysis of whether the first constitutional convention was perceived as a runaway convention because it went beyond amending the Articles of Confederation.

Comes a Horseman – Article – National Review Online. Have you ever wondered where the term “living constitution” originated? Well, this article will give you the answer. Seriously, this article is an excellent read on the change that occurred when FDR threatened to pack the court, and provides a good historical basis to see the origins of progressive legal thought untethered from constitutional restraints that have now led to the issues raised in the health care lawsuit.

This was a busy, but intellectually rich weekend for me. On Friday I was in Orlando speaking at a Republican National Lawyers Association (RNLA) event on voter registration,early voting and absentee ballots, and pre- election legal challenges.  I then had to fly to Atlanta to participate in a symposium that was being co-hosted by the Federalist society and the Liberty Fund, which gathering donated the title to this post.  It was intellectually stimulating in that we had the luxury of actually reading and discussing many of the Federalist papers and the Anti -Federalist writings as well.  This was the first time that I had read many of the Anti-Federalist selections, and it was interesting that some of the problems they anticipated with the Constitution were not realized under the original Constitution, but only after the adoption of the 16th and 17th Amendments.

With a very rapid ruling, oral argument only having been held this morning, the 11th Circuit has preliminarily enjoined Florida from paying our any state funds to McCollum once Scott exceeds the 24.9 million cap. Opinion is attached scotts-appeal-ruling.  Basically, the court held that Scott’s speech would be impaired, Strict scrutiny would apply, no compelling interest had been demonstrated, but even if anti corruption were a compelling interest, the state statute was not narrowly tailored to address that interest.

The Federal Government had just filed its motion to dismiss and memo of law in support in the case Attorney General McCollum filed in the Northern District of Florida, Case No. 3: 1 O-cv-91-RV/EMT.  The memo of law is here DOJ MTD Memo 55-1.  Analysis of the points raised in the motion will follow.

The Federal Government summarizes its case as follows:

Plaintiffs’ challenge to the provisions addressing insurance provided to a State’s own employees fails on jurisdictional grounds and on the merits. The plaintiff States currently offer insurance to their employees and plaintiffs do not allege that their insurance plans are inadequate under the ACA. Thus, plaintiffs cannot show that they will be injured by the provisions they challenge. In any event, it is settled that Congress may impose on State employers the same type of requirements that it imposes on private employers. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1968).

Plaintiffs’ challenge to the minimum coverage provision likewise presents no case or controversy. The provision will not take effect until 2014, and it is entirely speculative whether the individual plaintiffs will be injured. The States and the National Federation of independent Businesses have no standing to challenge this provision either. And the Anti-Injunction Act bars injunctive relief against payment of a tax penalty. See 26 U.S.C. (I.R.C.) § 7421.

Even if plaintiffs had standing to challenge the minimum coverage provision, the challenge would fail. The minimum coverage provision is well within Congress’s authority under the Commerce Clause. Congress rightly understood, and plaintiffs do not deny, that virtually everyone at some point needs medical services, which cost money. The ACA regulates economic decisions about how to pay for those services – whether to pay in advance through insurance or attempt to do so later out of pocket – decisions that, “in the aggregate,” substantially affect the $2.5 trillion interstate health care market. Gonzales v. Raich, 545 U.S. 1,22 (2005). Among other things, Congress found that these economic decisions shift costs to third parties, ACA §§ 1 501 (a)(2)(F), 10106(a); “increas[e] financial risks to households and medical providers,” id. §§ 1501(a)(2)(A), 10106(a); raise insurance premiums, id. §§ 1501(a)(2)(F), 10106(a); precipitate personal bankruptcies, §§ 1501 (a)(2)(G), 10106(a); and impose higher administrative expenses, id. §§ 1501 (a)(2)(J), 10106(a). Congress determined that, without the minimum coverage provision, the reforms in the Act, such as the ban on denying coverage based on pre-existing conditions, would not work, as they would amplify existing incentives for individuals to “wait to purchase health insurance until they needed care,” shifting even greater costs onto third parties. Id. §§ 1501(a)(2)(I), 10106(a). Congress thus found that the minimum coverage provision “is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.” Id. Congress also concluded that requiring the financially able to purchase insurance would spread risks across a larger pool and lower premiums. Id. §§ 1501(a)(2)(I), 10106(a). Congress’s authority under the Commerce Clause and Necessary and Proper Clause to adopt the minimum coverage provision is thus clear.

In addition, Congress has independent authority to enact this statute as an exercise of its power under Article I, Section 8, to lay taxes and make expenditures to promote the general welfare. License Tax Cases, 72 U.S. (5 Wall.) 462, 471 (1867). The minimum coverage provision – in particular, the requirement in the Internal Revenue Code that individuals pay a tax penalty if they do not have the requisite coverage – will raise substantial revenue. The Supreme Court has long held that an exercise of this power is valid even if it has a regulatory function, even if the revenue purpose is subsidiary, and even if the moneys raised are only “negligible.” United States v. Sanchez, 340 U.S. 42, 44 (1950). It is equally clear that a tax predicated on a volitional event – such as a decision not to purchase health insurance – is not a “direct tax” subject to apportionment under Article I, Sections 2 and 9. United States v. Mfrs. Nat ‘I Bank of Detroit, 363 U.S. 194, 197-98 (1960); Tyler v. United States, 281 U.S. 497, 502 (1930).