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Archive for September, 2011

This thoughtful essay by William Baude in The Wilson Quarterly is eminently worth reading.

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The Richmond Times-Dispatch ran a story today under the headline “Technicality imperils prosecutor’s re-election bid.” According to the story: Richmond County Commonwealth’s Attorney Wayne L. Emery will not appear on the ballot for the election because his petitions to qualify as a candidate have been disqualified for failure to conform to State Board of Elections regulations. According to the Board, the petitions are invalid because each petition filed by Emery consisted of two pages stapled together rather than double-sided, two-page, back-and-front petitions.

There are more important details to the story, which you can read by clicking through the link above. But I’ve given you the gist of it. [IMPORTANT UPDATE: To understand the issues, it is essential to read the additional facts set forth in the comment by Andrew McRoberts below. Those additional facts change both the complexion of the story and the legal analysis.]

According to Andrew McRoberts, the attorney who represented the Richmond County registrar and the Board in legal proceedings related to Emery’s petition, “[t]he electoral board is certainly disappointed that this has happened. Obviously, Richmond County does not want to be a test case for anyone’s regulation.”

Mr. McRoberts certainly knows much more about election law and local government law than I do. But I do know how to read statutes and regulations, so I thought I would take a look at the relevant legal materials to see if the Board truly was required to act in a way that led it to be “disappointed” with the ultimate result.

There is enough in there to lead me to question the Board’s interpretation. To be clear, I do not suggest that I have the right answer or that the Board necessarily reached the wrong answer. But it appears there is enough to raise a question.

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Virginia filed a federal lawsuit challenging a federal statute as unconstitutional and seeking to vindicate a state statute. It takes a special perspective for someone to view that federal-court filing as some type of indicator that the Commonwealth may have forgotten that the Civil War is over. Linda Greenhouse appears to have that special perspective, as her most recent Opinionator column reveals. (By the way, does the New York Times have a macro such that any story it runs on the Fourth Circuit must contain something about how the court sits “in the heart of the old Confederacy”?)

My problem is not with the substance of Greenhouse’s claim that Virginia lacked standing to sue the federal government. My problem is with the framing and tone.  Reading Greenhouse’s column reminded me of reading portions of Justice Kennedy’s opinion in Gonzales v. Carhart, 550 U.S. 124 (2007). In these writings of Greenhouse and Kennedy, quasi-constitutional moralism not only distracts from the soundness of the underlying constitutional determination, but also provides unnecessary fodder for disagreement.

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Ariane DeVogue of ABC News reports from today’s oral arguments in the D.C. Circuit that Judge Kavanaugh asked a series of questions that may indicate his belief that the federal tax Anti-Injunction Act bars the plaintiffs’ pre-enforcement challenge to the individual mandate. Judge Kavanaugh worked on Ken Starr’s investigation of Bill Clinton and served in high-level positions in George W. Bush’s White House. If he concludes that the AIA bars the challenge, it will be difficult to attribute that conclusion to some sort of left-leaning tendencies in his jurisprudence.

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One of the top stories currently running at The American Spectator is “Obamacare’s Last Best Hope”, by David Catron. The bio describes Mr. Catron as a “health care revenue cycle expert” who blogs at Health Care BS (which is devoted to “cleaning the Augean stables of the health care debate”). Mr. Catron may know much more about health care finance than I do, but he is confused about the federal tax Anti-Injunction Act (“AIA”) and why one might be willing to conclude that it blocks pre-enforcement challenges to the individual mandate.

Let’s begin with the paragraph that drew my attention:

Some left-leaning legal scholars see a ray of hope in the Liberty v. Geithner ruling because Judge Diana Motz, the Clinton appointee who resurrected the tax issue, invoked the Anti-Injunction Act (AIA). AIA forbids legal challenges to taxes before they go into effect and the IRS has tried to collect them. Because the mandate doesn’t take effect until 2014, experts sympathetic to “reform” hope this new perspective will cause the Supreme Court to put off its encounter with ObamaCare. According to Kevin C. Walsh, who teaches law at the University of Richmond, “[T]he Supreme Court could conclude that it lacks jurisdiction to rule on any of the challenges to the individual mandate.” And, considering the denunciations to which the Court was subjected pursuant to Bush v. Gore, the justices may indeed be reluctant to join the judicial fray in 2012.

It’s peculiar that I am the only “legal scholar” mentioned in this paragraph about “left-leaning legal scholars” who are “sympathetic to ‘reform'” and hope that the AIA “will cause the Supreme Court to put off its encounter with ObamaCare.” I will leave to others to judge whether I am “a left-leaning legal scholar.” I think it’s safe to say, however, that Mr. Catron’s sole reason for tagging me as such is because I think the Fourth Circuit got the AIA question right in Liberty University v. Geithner. For better or worse, Mr. Catron can infer whatever he likes from my view on this jurisdictional question. But he should at least get that view right. The post of mine that he links in his piece advocates congressional action to lift the AIA bar for these challenges. That’s not the kind of move one advocates while simultaneously hoping that the Supreme Court will “put off its encounter with ObamaCare.” As I explained in that same post (which Mr. Catron apparently has not read): “A legislative fix to the Tax Anti-Injunction Act can eliminate a jurisdictional barrier that presents a serious possibility of causing extensive delay. Congress can and should get rid of that barrier and clear the way to prompt Supreme Court resolution of the constitutional challenges to the individual mandate.”

Mr. Catron concludes by observing that the Department of Justice ” must make the case that, the President’s prevarications notwithstanding, the mandate is indeed a tax. If they can get over that bar, plus make the sale on Judge Motz’ AIA theory, there is a chance that ObamaCare and its mandate will survive — until November 6, 2012.” This analysis confuses two issues: (1) whether the mandate is a tax under the Constitution; and (2) whether a challenge to the mandate is barred by the federal tax Anti-Injunction Act. It may be counter-intuitive to treat these as two different issues, but sometimes the law is counter-intuitive. And on this point, the law is clear. The AIA can bar a pre-enforcement challenge to the mandate even if the monetary exaction for non-compliance is a “penalty” rather than a “tax” under the Constitution.

Rather than speculating about political or ideological leanings, Mr. Catron may wish to get straight on the law and consider the possibility that some of us who think that the Fourth Circuit was right about the AIA hold that view because a close look at the relevant legal authorities suggests as much. An analysis along those lines wouldn’t make for good copy or allow one to suggest that the President is a liar, but it may actually be true and help people understand the issues.

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The Fourth Circuit issued four published opinions yesterday.

Three of the opinions were from a single panel, consisting of Judge Niemeyer, Judge King, and Judge Shedd. This panel heard arguments in the appeals almost 11 months ago (October 26, 2010). All three appeals involve claims that arose in some way in out of activities of U.S. contractors in Iraq. Two cases involved claims by Iraqis against U.S. contractors, and one was a claim by a United States Marine against contractor Kellogg, Brown, and Root. In each case, the Fourth Circuit held that the claimants are barred from recovering. (AP story on the Iraqi citizen suits here.)

In Al Shimari v. CACI International, the court held that state law tort claims brought by four Iraqi citizens against a U.S. contractor for damages from torture and abuse at Abu Ghraib are preempted by federal law. The court ruled similarly in Al-Quraishi v. L-3 Services, Incorporated, remanding with instructions to dismiss the claims of 72 Iraqis against a U.S. contractor for damages from torture and abuse at various detention sites in the Iraq war zone. In both cases, Judge Niemeyer wrote the majority opinion, which Judge Shedd joined. Judge King dissented, arguing that the court lacked jurisdiction under the collateral order doctrine, and that, if the court did have jurisdiction, it should have ruled that the claims were not preempted. The opinions in Al Shimari focus more on the preemption arguments, while the opinions in Al-Quraishi devote more attention to the appellate jurisdiction arguments. In Al Shimari, Judge Niemeyer wrote not only an opinion for the panel majority, but also a separate solo opinion “giving additional reasons for reversing and remanding.” Judge Niemeyer argued in this opinion that the plaintiffs’ claims were not only preempted, but also barred by the political question doctrine and derivative absolute immunity.

The third decision from this panel was Taylor v. Kellogg Brown & Root Services, Incorporated. The court held that the negligence claim of a Marine against contractor KBR was barred by the political question doctrine and that the claim was also preempted. The path to these alternative holdings is an unusual one. The header for the opinion (if that’s the right term, not sure) describes the voting breakdown as follows: “Affirmed in part and vacated in part by published opinion. Judge King wrote the opinion, in which Judge Niemeyer joined. Judge Niemeyer wrote a concurring opinion. Judge Shedd wrote an opinion concurring in the judgment, in which Judge Niemeyer joined.” This description seems slightly off. Because Judge Niemeyer joined the opinions by Judge King and Judge Shedd, both of those opinions express the opinion of the court.

The fourth published opinion issued by the Fourth Circuit yesterday was United States v. Blair. The court unanimously affirmed convictions for money laundering, but by a 2-1 vote reversed a conviction for obstruction of justice. The panel consisted of Chief Judge Traxler, Judge Wilkinson, and Judge Wynn. The unanimous portions of the opinion were per curiam. Judge Wilkinson authored the portion of the opinion addressing obstruction of justice; Judge Wynn joined in that section, while Chief Judge Traxler dissented from it.

The opinions in all four of these appeals deserve more attention, which I hope to give them in later posts.

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The United States Court of Appeals for the Fourth Circuit heard arguments this morning in the second of two pirate prosecutions in federal court in Norfolk, Virginia. The first appeal, which the court heard in the spring, has been held up on a procedural issue and is being stayed pending the decision of today’s consolidated appeals. This second appeal–United States v. Abdi Dire (the lead case, together for argument with four other appeals)–was the second argued this morning in the Red Courtroom on the fourth floor of the Lewis F. Powell, Jr. Courthouse in Richmond. These appeals arise out of the convictions, after trial, of five Somali pirates for their attack on the U.S.S. Nicholas (preview post here). (UPDATE: For an AP write-up of the argument, see here.)

The panel that heard arguments was the same panel that heard arguments in the appeal arising out of the U.S.S. Ashland prosecution: Judge King, Judge Davis, and Judge Keenan.

Appellants divided their argument among three lawyers, each of whom addressed a distinct issue: whether the facts proven amounted to piracy under the law of nations; whether certain statements made by the captured pirates should be suppressed; and whether three 924(c) counts should be merged for sentencing.

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