Supreme Court Misrule
JUNE 26, 2015
Supreme Court Undermines the Republic
Judicial Watch Files Suit to End Gerrymandering in Maryland, Protect Constitution
Obama Peddles Global Warming Fantasies, Attacks Political Opponents at Taxpayer Expense
The whole idea behind lifetime appointments to the highest court in the land is to provide justices with insulation from political pressure. They are perfectly positioned to resist the executive, the legislature, the news media and elite opinion to the point where they are free to issue rulings upholding the rule of law. At least that’s the theory, and that’s what Alexander Hamilton, and others, argued in the Federalist Papers (See Federalist No. 78). But that’s not how it played out in the King v. Burwell ruling, which said the federal government was authorized to provide subsidies for individuals whose states did not establish health care exchanges under the terms of the Patient Protection and Affordable Care Act (ACA). It was last December that we filed an amicus curiae brief in support of the plaintiffs in the King lawsuit against the IRS and the Departments of Health and Human Services (HHS) and Treasury over a decision by the agencies to ignore a key provision of the ACA. The lawsuit sought to prevent the IRS from providing refundable tax credits to individuals who purchase health care coverage through a federal rather than a state exchange. But because the chief justice twisted himself into a pretzel, yet again, to save the law, the well-reasoned arguments in our brief did not carry the day.
Unfortunately, the rule of law also lost out in Texas Department of Housing and Community Affairs, et al. v. The Inclusive Communities Project, Inc. Here, the Supreme Court upheld a federal Fair Housing Act (FHA) interpretation that imposes liability on a state housing decision that disparately impacts certain minorities, despite the absence of evidence of any discriminatory intent. Just to review, under the theory of “disparate impact,” a defendant can be held liable for discrimination for a race-neutral policy that statistically disadvantages a specific minority group even if that negative “impact” was neither foreseen nor intended. In such cases, defendants can be forced to pay for harm caused not by their own actions, but by economic and statistical realities, even if beyond their control. We joined with the Allied Educational Foundation (AEF) in filing an amicus curiae brief with the Supreme Court in support of the State of Texas’ appeal of a lower court ruling upholding a FHA interpretation that imposes liability on a state housing decision that disparately impacts certain minorities, despite the absence of evidence of any discriminatory intent.
So again, this comes down to a question of motivations. For the second time, the chief justice has seen fit to rewrite key portions of the federal health care law commonly known as Obamacare. Recall that back in 2012 Roberts wrote in his majority decision that the law could be upheld as a tax. So what was legislated as an “individual mandate” was converted and reshaped by the chief justice into a tax. If Obamacare had been described that way right from the get-go, it would never have passed Congress.
Here is my statement on the King v. Burwell ruling:
[Thursday’s] Burwell decision is an affront to the rule of law and constitutional self-government. No federal judge has the power to rewrite the law, which is what the majority did today in Burwell. Chief Justice Roberts, Justice Kennedy, Justice Breyer, Justice Sotomayor, and Justice Kagan took part in an unconstitutional power grab every bit as unlawful as President Obama’s rewrite of Obamacare. None of these justices have the constitutional power to rewrite major components of Obamacare in order to “save it.” Ironically, the majority cites the corruption of the passage of Obamacare as an excuse for the judiciary’s own corrupt, nonsensical fix of the same law. Congress still can vindicate its power and uphold the rule of law. This terrible decision has no binding effect on choices by Congress to defund President Obama’s despotic rewrite of the law and prevent the IRS from unlawfully providing insurance subsidies. And, of course, the impeachment power still remains for executive branch officials who won’t obey the law. The Court makes a policy pronouncement, all evidence to the contrary, that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” The justices in the majority ought to have the honesty to run for Congress if they want to write rather interpret law. Our republican form of government is weakened when the president and six Supreme Court justices disregard federal statutes in favor of their own policy choices.
And yesterday also saw more contortions by justices trying to justify writing into law the notion that we peons practice “unconscious” discrimination and racism, an intellectual absurdity which does nothing but empower the race hustlers both in and out of government who see racism when none exists:
[Thursday’s] Supreme Court “disparate impact” decision in the case of Texas Department of Housing v. Inclusive Communities Project is confused and, as the Court did in its Burwell decision, endorses the Executive Branch’s radical racial rewrite of our federal housing law. The Obama administration unlawfully changed federal housing anti-discrimination law to prohibit practices that result in a disparate impact on minorities. In fact, the law prohibits actions only taken because of race, not actions that happen to disproportionately impact certain races. Unfortunately, this judicial activist decision further enshrines the intellectually impoverished concept of race into the law, it furthers a culture of racial and ethnic politics in American public life, and perpetuates racial and ethnic resentment and intolerance in American society. In fact, the only way to treat the troubled concept of “race” in the law should be to absolutely prohibit its use as a basis for making decisions affecting individuals or groups. Conveniently, such a prohibition is precisely what the Constitution already requires. And, as Judicial Watch has alleged and as Justice Thomas implies in his dissent, the Obama administration corruptly influenced the Supreme Court’s consideration of this issue and has tainted today’s ruling.
And finally we have the out-of-control ruling released today in the Obergefell v. Hodges case that imposes same-sex marriage on the entire country. As Justice Antonin Scalia has warned in his eloquent dissent, democracy itself is at stake. Ironically, Chief Justice Roberts got it right today, when he says that the opinion by the liberals on the Court has nothing to do with the Constitution. Here is my statement:
Today’s decision shows that the Supreme Court can be a danger to our republican form of government. The opinion authored by Justice Kennedy is not constitutional, is unmoored from law and precedent — and is invalid. The exercise of raw judicial power by five justices should be resisted under law and overturned. Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan abused their public offices and acted contrary to their oaths of office by assuming the power to legislate their progressive views on homosexual marriage from the bench. The personal advocacy for homosexual causes by justices in the majority has also cast an ethical cloud over this decision. This decision will lead to frontal assaults, led by the Obama administration, on a right which actually is in the Constitution, the right to freely exercise one’s religion. I fear this judicial coup will lead to social unrest, the jailing of religious leaders, and other outrages against those Americans who shared the views of Barack Obama, Bill Clinton, and all of Western civilization on traditional marriage. This is a terrible, terrible day for our nation.
We know what a punch to the gut these rulings are for our readers and supporters who value the rule of law and the idea of constitutional limited government. For the moment, those principles are lost. I encourage you to read all three opinions at issue (especially the dissents!). Again, you can view the opinion on marriage here, the opinion on Obamacare here, and the opinion on so-called “disparate impact” here.
In the wrong hands, the judiciary is a threat to the republic. You can be sure that Judicial Watch will continue to advocate for a constitutional and accountable judiciary.
Elbridge Gerry of Massachusetts was the fifth vice president of the United States. He was also elected to the Second Continental Congress, and signed the Declaration of Independence and the Articles of Confederation, but not the Constitution. But it is for a law he signed off on as governor of Massachusetts that his name is remembered today. That law, which went into effect in 1812, made it possible for the party in power to carve out congressional districts into odd contortions to keep their members in power. One particular district in Essex County took the form of a salamander, inspiring the Boston Gazette to run a cartoon labeling it a “Gerry-mander.” If you ever wonder why incumbents typically get re-elected despite antagonizing the voting public, you can blame the party bosses who don’t like competitive elections. However, your JW is looking to curtail this abuse of power.
This week, our attorneys filed a historic voter lawsuit challenging the constitutionality of Maryland’s gerrymandered congressional district maps. The lawsuit was filed on behalf of voters in each of Maryland’s congressional districts. Plaintiffs in the new lawsuit include Maryland Delegates Neil C. Parrott and Matt Morgan, and former Maryland legislator and gubernatorial candidate Ambassador Ellen Sauerbrey. Please take a minute to examine the current congressional district map of Maryland, which I have linked for you here. Look at District 3 (in yellow), which is a snake of a district that might even give Governor Gerry pause.
The lawsuit alleges that the Maryland maps were drawn in a way that violates the U.S. Constitution, especially the provision that “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…” (Article 1, Section 2). Judicial Watch sued Maryland’s state administrator of elections and the chair of the state board of elections (Parrott, et al, v. Lamone, et al (No. 1:15-cv-01849)). The lawsuit asks the court, among other relief, to declare the Maryland maps unlawful and require Maryland to redraw the maps. This is how to challenge the political class.
The lawsuit challenges a congressional districting plan signed into law by then-Gov. Martin O’Malley in October 2011. The lawsuit alleges that the Maryland’s congressional district map is the most distorted and confused in the country. According to the lawsuit, the 2011 redistricting plan uprooted millions of Marylanders from their previous congressional districts:
[T]he congressional districting plan greatly reconfigured Maryland’s congressional districts. Specifically, the new plan removed approximately 1.6 million Marylanders from their previous congressional district and placed them in a different district…In total, 27 percent of all Marylanders were removed from their previous congressional district and placed in a different congressional district.
Our lawsuit is unique in proposing a single, objective compactness measure to determine whether states are engaged in unconstitutional gerrymandering. Under the status quo in Maryland, politicians pick their voters, which is unconstitutional. The state’s gerrymandered congressional district map is a national embarrassment and harms both Democrat and Republican voters. The courts should require Maryland to go back and draw district maps that respect Maryland voters and do not make a mockery of commonsense and the rule of law.
There is no getting around how unfair, and abusive, political figures have been in this process.
Maryland’s gerrymander produces “split counties, county fragments, and split precincts,” resulting in the arbitrary political fragmentation of the state. The lawsuit argues that the plan harms Republicans, Democrats, and independent voters:
Maryland’s gerrymander harms all Maryland voters, regardless of their party preferences or how they would vote in a particular election, by giving State legislators the power to make choices regarding the State’s congressional delegation that only the voters should make. In addition to the general harm inflicted when legislators intrude on powers that should be reserved to voters, Maryland’s gerrymander inflicts particular harm on partisan and non-partisan voters of every description.
Gerrymandering also disadvantages entire legislative districts:
Because voters do not choose where to live so as to suit the purposes of legislators trying to draw gerrymandered districts, they must distend, shrink, and generally distort district boundaries to create districts that contain the mix of voters that best achieves their partisan goals…Exceedingly non-compact districts confuse voters regarding such basic matters as which district they reside in, who represents them, who is running for office in their district, and where they go to vote.
The lawsuit presents a “judicially manageable remedy” necessary to resolve clear cases of political gerrymandering, specifically the Polsby-Popper scale, “one of the most widely used measures of electoral district compactness.” That scale is a:
straightforward application of a mathematically derived compactness measure to congressional districts[which] can be used as a judicially manageable, discernable, and non-arbitrary standard with which to measure, and deter, excessive partisan gerrymandering….Maryland’s congressional districts have an average Polsby-Popper compactness score of 11.3. This is the lowest (worst) average compactness score for congressional districts of any state in the nation.
Judicial Watch is lucky to have Robert Popper, co-creator of the Polsby-Popper scale, as our lead attorney who directs Judicial Watch’s Election Integrity Project.
Democrats are committed the gerrymandering in Maryland. But Republicans are not immune from abusing their power and stealing the constitutional rights of voters. Look at the North Carolina Twelth District on the map here. As you can see in this piece, Republican-controlled governments in Pennsylvania and Florida have committed many of the worst gerrymanders. That’s an indirect way of saying that Maryland won’t be the only state subject to court challenge by aggrieved voters represented by Judicial Watch.
We held a press conference announcing the lawsuit at the National Press Club. You can view it here.
Fellow taxpayers, when President Obama and his family members travel anywhere these days, it is best to grab hold of your wallet. That is the latest lesson Judicial Watch has pulled out of documents received in response to Freedom of Information Act (FOIA) requests directed at the U.S. Air Force.
Since the beginning of his administration, the president and his family have become notorious for lavish political junkets and extravagant vacations, subsidized by tax dollars, and often under the fraudulent guise of official business. According to records obtained by Judicial Watch through FOIA requests and subsequent lawsuits, the Obamas and Bidens have spent more than $40 million taxpayer on trips since 2009, beginning with the Obamas’ much-publicized New York City “date night” in 2009 up through the president’s most frequent golf outings and the first lady’s Aspen ski jaunts. And that number is just the tip of the iceberg. The full costs, many of which remain hidden, likely approach a billion dollars.
Just this week we obtained records that show President Obama’s April 22, 2015, Earth Day trip to give a global warming speech in the Florida Everglades cost taxpayers $866,615.40 in flight expenses alone. Though billed as an opportunity for the president to talk about climate change, press reports show he used the speech to attack potential 2016 Republican presidential candidates. The records came in response to a Judicial Watch Freedom of Information Act (FOIA) request filed on April 23, 2015.
According to the Air Force documents, the president’s flight to and from Miami, Fla., totaled 4.2 hours. The Air Force documents also detail that Air Force One costs $206,377 per hour to operate, meaning the flight expenses for the trip totaled $866,615.40. Leaving aside the irony of using Air Force One for an unnecessary jaunt to discuss global warming, these documents show that taxpayers are being gouged for President Obama’s abuse of the perks of office. They should not be forced to foot the bill for his continued savaging of political opponents.
(The White House schedule for April 22 reports the president departed Washington at 10:20 a.m., gave his speech at 3:55 p.m., quickly departed Florida two hours later, and was back at the White House by 8:10 p.m.)
In his Saturday, April 18, weekly radio address, Obama said he was going to the Everglades to “talk about the way that climate change threatens our economy.” Press reports following the speech, however, suggested that he used the occasion to launch hard-hitting attacks on his political opponents, particularly those vying for the Republican presidential nomination in 2016, and those leading the opposition to his global warming agenda.
According to the New York Times, “… his trip was also intended to sharpen a political contrast with Republicans in ways that he believes will help the Democratic Party in the next presidential contest, especially in states like Florida, where the impact of climate change is already being felt in profound ways.”
Reuters reported, “He mocked Republican Senator Jim Inhofe [a leading opponent of the Obama global warming agenda] for throwing a snowball on the Senate floor during Washington’s cold winter.”
We should note here that the Secret Service has yet to respond to Judicial Watch’s April 2015 FOIA request asking for documents about the costs of providing the president security on the Miami trip. So you can bet this was another multi-million dollar four-hour trip.
As offensive as these latest junkets are, they are not actually the worst.
The most lavish expenditure on record to date was the first lady’s Africa trip and a single Honolulu vacation, which cost taxpayers $15,885,585.30 in flight expenses alone. The single largest expense for accommodations was for Michelle Obama’s side-trip to Dublin, Ireland, during the 2013 G-8 conference in Belfast, when she and her entourage booked 30 rooms at the five-star Shelbourne Hotel, with the first lady staying in the 1,500 square-foot Princess Grace suite at a cost of $3,500 a night. The total cost to taxpayers for the Obamas’ Ireland trip was $7,921,638.66.
A look back into recent history of presidents shows just how much the current administration’s operations have gone off the rails.
Midway through the sixth year of his presidency, Obama has attended more fundraisers than George W. Bush attended in his entire presidency, including 32 fundraising visits to the high-income environs of Los Angeles County in the six years since his 2009 inauguration. Republicans George W. Bush and Ronald Reagan each had eight visits to LA County in their first six years in office. George H.W. Bush visited there 10 times. The only outlier other than Obama’s 32 visits belongs to fellow Democrat Bill Clinton, who attended 36 fundraisers in the county over the course of his two terms as president.
That’s where we are these days. Whoever the next president is, Democrat or Republican, we need to reform the abusive costs of the Imperial Presidency.
Until next week…