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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Judicial Watch Weekly Update

No to Obamacare and Judicial Activism

May 20, 2011

From the Desk of Judicial Watch President Tom Fitton:

JW Court Brief: Obamacare “Power Grab” Unconstitutional

Last week I told you about Judicial Watch’s efforts to expose potential conflicts of interest involving Supreme Court Justice Elena Kagan and Obamacare. When the law makes it to the Supreme Court, which it surely will, a key question will be whether Kagan will recuse herself, thereby denying the High Court a dependable liberal (and likely pro-Obamacare) vote.

But before Obamacare is decided by the U.S. Supreme Court, lower courts will consider various lawsuits that currently explicitly challenge Obamacare’s constitutionality. Judicial Watch has joined this battle.

In fact, on May 23, we filed an amicus curiae (or “friend of the court”) brief in a federal lawsuit challenging the constitutionality of Obamacare. This lawsuit is currently on appeal before the United States Court of Appeals for the District of Columbia Circuit (Susan Seven-Sky, et al. v. Eric Holder, Jr., et al.(No. 11-5047)).

In short, Judicial Watch’s brief challenges the constitutionality of the law’s “Requirement to Maintain Minimal Essential Coverage” (health care mandate) which forces citizens to purchase health care insurance or remit to the government a “shared responsibility payment” (fine).

As Judicial Watch notes, the critical question for the court is whether an individual who does not purchase health insurance has performed an “activity” that can be regulated by Congress under the Commerce Clause of the Constitution. Our view? Not a chance:

…the Supreme Court’s Commerce Clause jurisprudence requires that Congress regulate an activity, as opposed to not engaging in an activity….Common sense alone compels the conclusion that an individual who does not purchase health insurance has not taken an action or exerted effort. The individual does not even need to take a “mental action.” The individual does not need to make a decision not to purchase health insurance; the individual simply will not purchase health insurance.

Since Congress has regulated this passivity, Congress has overstepped the Commerce Clause’s boundaries in attempting to regulate Appellants. Indeed, it seems that Congress has put the cart before the horse. In an effort to regulate Appellants, Congress is attempting to compel them into action through the PPACA (Patient Protection and Affordable Care Act).

Now recognizing the “weak underpinnings” of its conclusion that those who do nothing are performing an activity – which clearly defies logic – the lower court attempted to bolster its argument by reasoning that Congress can regulate individuals today because someday everyone will seek medical treatment and this will have an effect on interstate commerce.

However, as Judicial Watch noted, in United States v. Lopez, 514 U.S. 549 (1995), the Supreme Court dismissed this approach as “pil[ing] inference upon inference.” The Supreme Court reasoned, “If we were to accept [such] arguments we are hard pressed to posit any activity by an individual that Congress is without power to regulate.”

Yes, this is precisely the point. If Obamacare is allowed to remain the law of the land, the federal government’s ability to run our lives will be virtually unlimited. That’s why it must be stopped.

Obamacare is seen by many (including Judicial Watch) as a fundamental threat to our nation’s constitutional order. And we hope this court abides by the plain meaning of the U.S. Constitution and Supreme Court precedent and rules Obamacare unconstitutional.

As we noted in our brief, by current count, at least 20 lawsuits have been filed challenging the constitutionality of Obamacare, with the “individual mandate” representing the main point of contention. Two courts have ruled this mandate unconstitutional, while three other federal courts, including the lower court in this case, have upheld the constitutionality of the mandate.

The National Journal reported recently that the courts do not represent the only obstacle for Obamacare: “While the U.S. House works to defund the health care law, more states are attempting to avoid implementing it,” the Journal reported. “Challenges to or measures opposing the health care law are pending in more than 30 states.” Judicial Watch also believes Obamacare should be put on hold until its fundamental constitutionality is decided. (Click here to view our op-ed on the Obamacare moratorium.)

There is little doubt where this Obama socialist monstrosity is heading: to the U.S. Supreme Court. It will be up to the High Court to determine whether this legislative power grab is allowed to remain the law of the land.

Colorado Officials Join JW to Seek Justice for Tiffany Hartley

Judicial Watch recently received some high-powered support in its efforts to achieve justice on behalf of our new client Tiffany Hartley. Mrs. Hartley, you will recall, is the widow of David Hartley, who was murdered by what are believed to be Mexican drug cartel pirates. The incident took place September 30, 2010, on Lake Falcon, a tourist destination on the border between Texas and Mexico.

This week, Colorado Governor John Hickenlooper (D-CO), Rep. Cory Gardner (R-CO), Senators Mark Udall (D-CO) and Michael Bennett (D-CO) sent letters to Attorney General Eric Holder and Secretary of State Hillary Clinton, urging them to help gain “closure and justice” on behalf of Mrs. Hartley, who is a citizen of the State of Colorado.

The letters, dated May 20, 2011, detail the efforts of Hickenlooper, Gardner, Udall and Bennett in assisting Mrs. Hartley, while asking Attorney General Holder and Secretary of State Clinton to join their campaign on behalf of Mrs. Hartley:

Despite all of these efforts, many questions remain outstanding, and we respectfully request you help resolve them…

…While Ms. Hartley recognizes the complicated nature of this situation because it happened on the Texas/Mexico border, she has been unable to obtain any recent updates from the FBI regarding the progress of the case. Moreover, the inability to recover her husband’s remains has created numerous difficulties for Ms. Hartley because she cannot obtain a death certificate. She has sought help from the State Department, including the U.S. Consulate in Matamoros, regarding this issue, but has so far been unable to gain final closure.

We request any additional assistance and information you can provide Ms. Hartley and her family in accordance with the law. Specifically, we request an update on the status of U.S. involvement in the investigation of the murder of David Hartley.

Gov. Hickenlooper and Rep. Gardner have personally met with Mrs. Hartley. Sen. Udall and Sen. Bennett have also reached out and taken action for the Hartley family.

As I detailed two weeks ago, Mrs. Hartley also received assistance from Rep. Ted Poe (R-TX) and Brian Bilbray (R-CA), who held a Capitol Hill press conference on May 12, 2011, to bring attention to the investigation of the murder of David Hartley. (Click here for a review.)

Judicial Watch also participated in the press conference and called on the Mexican Government and the Obama administration to thoroughly investigate the Hartley murder. Judicial Watch also launched an investigation of its own. We are moving quickly to identify and obtain all government records pertaining to the September shooting, including Obama administration communications with their Mexican counterparts, as well as law enforcement officials, Mexican military authorities, and others.

And why do we want to know what the Obama administration and officials from Mexico discussed regarding the Hartley murder? Because it certainly looks to us as if the pursuit of justice in this case has been suppressed for political reasons on both sides of the border, which is shameful and wrong.

As for this most recent news, we commend Gov. Hickenlooper, Sen. Udall, Sen. Bennett, and Rep. Gardner for acting to help Mrs. Hartley, who is owed a full and thorough investigation into the murder of her husband and deserves accountability from both the Mexican authorities and the Obama administration. (It would be appropriate and commendable to show your support to these legislators, especially if you are a constituent. Their office phone numbers are as follows: Gov. Hickenlooper 303-866-2471; Senator Udall 202-224-5941; Senator Bennet 202-224-5852; Rep. Gardener 202-225-4676.)

Let’s hope Attorney General Holder and Secretary Clinton heed the bipartisan call for action and commit all available resources to solve this murder and bring those responsible to justice.

And while we’re on the subject of border violence, I just want to point out that Judicial Watch has been a leading force in uncovering government records detailing dangerous confrontations between Mexican government agents and U.S. Border Patrol agents. Last year, records we obtained from Customs and Border Protection indicate an increase from the number of incursions in 2008 and 2009.

The border is becoming more dangerous and more chaotic by the minute. And the Obama administration’s open borders, pro-amnesty approach is only making matters worse.

Senate Rejects Liu Nomination

You did it. Thank you to those of you who heeded our call last week to contact U.S. Senators to encourage them to oppose the nomination of Goodwin Liu to a seat on the U.S. Court of Appeals for the Ninth Circuit. The Senate refused to end debate (or end the conservative-led filibuster) by a vote of 52-43.

Not only did liberals fall eight votes short, but the final tally suggests that Democrat-controlled Senate would be unable to confirm the Obama nominee even if Liu did get an up-or-down vote. Liu was one of Obama’s most radical and inexperienced judicial nominees. Our members (and thousands of other grassroots conservatives) mobilized, and we stopped this judicial disaster in the making. After the vote, Prof. Liu asked President Obama to withdraw his nomination. Victory achieved!

Judicial Watch vigorously opposed the Liu nomination from the get-go. In fact, we sent a letter in March 2010 to Senators Leahy and Sessions from the Senate Judiciary Committee outlining our case against Liu:

  • In a book he co-authored, Keeping Faith with the Constitution, Mr. Liu suggests that the Constitution should be interpreted using the “evolving norms and traditions of our society.” This activist theory for interpreting the Constitution would substitute the whims of individual judges over the text and original meaning of the U.S. Constitution.
  • Mr. Liu joined an amicus brief that suggests that the Constitution’s equal protection clause requires allowing same-sex couples to marry. Mr. Liu has a radical and expansive view of judicially-enforceable rights to “welfare,” and seems to oppose the notion that the Constitution is colorblind.
  • Also of concern is Mr. Liu’s lack of practical legal experience. Mr. Liu has practiced law for just a little over ten years. Judicial nominees ought to have significant practical experience as a lawyer or a judge, especially nominees for appellate seats.

And then, of course, there was Liu’s vicious attack on then-Judge Alito during Alito’s Supreme Court confirmation process.

As reported by The Associated Press, “Liu had said Alito’s vision was an America ‘where police may shoot and kill an unarmed boy… where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance … where the FBI may install a camera where you sleep… where a black man may be sentenced to death by an all-white jury for killing a white man, absent… analysis showing discrimination.”

When questioned about these over-the-top comments during his Senate Judiciary Committee hearing, Liu admitted this “was not an appropriate way to describe Justice Alito.” He described his statements as “unduly harsh,” and said, “If I had it to do over again, I would have deleted it,” the AP reported. This mea culpa fooled few.

An Associate Dean at Berkeley School of Law, Liu is an intellectual leader for the judicial activist philosophy that substitutes left-wing politics for the U.S. Constitution. Many believe his appointment to the Ninth Circuit was a planned stepping-stone to a Supreme Court appointment. For now, Prof. Liu will remain Berkley’s problem.

By the way, if you want to access more information about judges and judicial nominees, including their financial disclosure reports, click here. Judicial Watch takes very seriously its role in monitoring judges and the courts, which is why we launched our Judicial Nominations Project. It is also the reason we took such an aggressive approach in opposing the Liu nomination.

A Supreme Court decision this week that could lead to the release of 46,000 criminals from California’s jails highlights just what is at stake in these judicial nomination battles. Unsurprisingly, the two Obama appointees, Justices Kagan and Sotomayor, were part of the 5-4 majority opinion that is a breathtaking example of a judicial power grab. I find it of particular note that Justice Sotomayor, who was falsely sold as “moderate” law-and-order judge, signed on to this decision. Don’t take my word that the decision was radical. Here is what Justice Scalia had to say in his dissent:

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

Scalia goes on to say the majority opinion upholding a lower court’s order “ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.”

Justice Alito, in a separate dissent, fears for the safety of the public, citing a previous court-ordered prisoner release in Philadelphia that saw the released prisoners charged with over 9,000 crimes, including “79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.” Justice Alito concludes with this warning:

I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong.

In a few years, we will see.

President Obama, through his appointments to the High Court, has put the public safety at risk. You can see how much the Liu battle and others like it matter. Liberal judicial activism cannot only rob us of our freedoms, but rob us of our lives.

Until next week…

Tom Fitton

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.

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