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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

Three for the High Court

JW Files Amicus Curiae Brief with U.S. Supreme Court Challenging Constitutionality of Obamacare

Two critical Supreme Court battles loom this spring: Obamacare and illegal immigration. Judicial Watch is smack dab in the middle of the debates.

First, Obamacare:

On February 13, 2012, we filed an amicus curiae brief with the High Court challenging the constitutionality of Obamacare, specifically the “individual mandate.” The Supreme Court has scheduled oral arguments for the Obamacare case on March 26, 27, and 28, 2012.

With our brief we maintain that the “individual mandate” provision of Obamacare, which requires every American citizen to purchase health care insurance or pay a penalty, is unconstitutional – whether considered under Congress’ commerce power or taxing power:

Petitioners are trying to defend a provision in an act passed by Congress that exceeds its enumerated powers. Though Congress enacted this provision under the Commerce Clause, Congress’ power under the clause is not broad enough to compel Americans to engage in commerce by purchasing a particular product. Though Petitioners try to rescue the provision by arguing that it is valid under Congress’ taxing power even if it is invalid under Congress’ commerce power, a provision of an act that is not a tax may not be construed as a tax merely to save it from being declared unconstitutional.

Our lawyers point out that if the Supreme Court affirms the constitutionality of the individual mandate, “it must be willing to hold that Congress’ powers under the Commerce clause are plenary and unlimited, for there remains no principled way to limit Congress’ power if it is stretched as far as Petitioners (the Obama administration) ask.”Florida federal district judge Roger Vinson perhaps put it more colorfully when he struck down the law in its entirety last year. If the government can force American taxpayers to buy health insurance, it can also force them to decide “whether and when (or not) to buy a house, a car, a television, a dinner or even a morning cup of coffee.”

The Judicial Watch amicus was filed in support of a challenge to Obamacare by Florida and 25 other states.

Demonstrating the importance of the legal battle over Obamacare, the Supreme Court will hear five-and-a-half hours of oral argument, a rare allotment of time in the court’s modern era. (The standard is one hour.) The Supreme Court’s scrutiny will focus on the constitutionality of the Obamacare individual mandate. However, the court will also consider whether other components of Obamacare could take effect even if the individual mandate is ruled unconstitutional, among other issues.

In a December 14, 2010, editorial published in The Washington Post, Attorney General Eric Holder and Health and Human Services Secretary Kathleen Sebelius argued that the individual mandate is essential to Obamacare: “Without an individual responsibility provision (or mandate), controlling costs and ending discrimination against people with preexisting conditions doesn’t work.”In other words, not even the Obama administration itself believes the law can survive if the individual mandate is struck down.

Judicial Watch has been extremely active in the Obamacare debate right from the beginning. We’ve fought for transparency over the Obamacare waivers, ultimately discovering that Big Labor was taking in a disproportionate haul. We exposed the Obama administration’s taxpayer-funded, multi-media propaganda campaign featuring television actor Andy Griffith.

We’ve fought for records detailing Supreme Court Justice Elena Kagan’s involvement in any Obamacare defense discussions when she served as Obama’s Solicitor General. (JW uncovered documents that raised questions about her role, causing a national uproar about her continued involvement in the High Court’s Obamacare deliberations.)

Our public education campaign included op-eds and educational panels raising our concerns with Obamacare. Just last week I moderated a panel during the Conservative Political Action Conference (CPAC) titled, “Obamacare: Why It’s Unconstitutional and What Conservatives Need to Do.”

We will continue the fight, but the time has come for the High Court to put an end to Obamacare once and for all. The President’s socialist healthcare overhaul is an affront to the U.S. Constitution’s provisions for limited government and, as you can see with the anti-religion Obamacare contraception mandate, a fundamental threat to our God-given freedoms.

And now, on to the Supreme Court battle over illegal immigration…

 Judicial Watch Files Two Amicus Curiae Briefs with U.S. Supreme Court Supporting Arizona’s Illegal Immigration Law SB 1070

If you’ve been reading this space for some time, then you know how active JW has been in the legal battle over SB 1070, Arizona’s illegal immigration enforcement law. In the past we have represented former Arizona State Senator Russell Pearce, the author of the law, as well as the Arizona State Legislature in the Obama administration’s legal attack against SB 1070.

And this week we filed two separate amicus curiae briefs with the U.S. Supreme Court in support of SB 1070 (which is also known as the Support Our Law Enforcement and Safe Neighborhoods Act).

How did this get to the High Court?

On April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit upheld an injunction against the enforcement of some of the law’s provisions per the request of the Obama administration, thus prompting the State of Arizona to petition the Supreme Court. The Supreme Court has scheduled oral arguments in the SB 1070 case for April 25, 2012, the Court’s last day of hearings for the current term.

We filed one brief on behalf of former Arizona State Senator Russell Pearce and a separate brief on behalf of State Legislators for Legal Immigration (SLLI). (The latter amicus brief, on behalf of SLLI, was joined by 29 legislators from 20 states.)

In both briefs, Judicial Watch argues that SB 1070 utilizes the state of Arizona’s well-established police powers and is, therefore, not pre-empted by federal law as the Obama administration maintains. Judicial Watch asks the Supreme Court to reverse the Ninth Circuit Court of Appeals ruling which placed key provisions of SB 1070 on hold:

S.B. 1070 does not regulate immigration or naturalization. It does not control who may enter the United States or the conditions under which lawfully present aliens may remain in the United States or become naturalized citizens. Nor does it purport to define any alien’s legal status or deport unlawfully present aliens from the United States. It merely authorizes and directs Arizona’s state and local law enforcement officers to communicate and cooperate with federal officials regarding the enforcement of federal immigration law and creates disincentives for unlawfully present aliens who do not comply with federal law to enter or remain in Arizona…Therefore, this Court should reverse the Ninth Circuit’s decision and hold that S.B. 1070 is not preempted by federal law.

Specifically, with our brief filed on behalf of Pearce, we maintain the four provisions put on hold by the U.S. Court of Appeals for the Ninth Circuit should be reinstated because they would “significantly assist Arizona’s effort to protect its citizens from the adverse effects of illegal immigration.” Here’s what these provisions will do once enforced:

  • Provide additional guidance to Arizona law enforcement officers as to how to interact with individuals who may not be lawfully present.
  • Invoke ordinary state police powers to create state criminal penalties for the failure to comply with federal law.
  • Utilize Arizona’s broad authority to regulate employment under its police powers to protect its economy and lawfully resident labor force from the harmful effects resulting from the employment of unlawfully present aliens.
  • Re-emphasize Arizona law enforcement officers’ pre-existing warrantless arrest authority by authorizing a warrantless arrest of an individual who has already been determined to have committed a public offense that makes that person removable.

Importantly, the provisions of SB 1070 that were not put on hold by the court are working! As Russell Pearce stated when the Arizona Legislature petitioned the U.S. Supreme Court to consider the SB 1070 lawsuit, “Already, the enacted provisions of SB 1070 have helped reduce crime significantly and led to a mass exodus of illegal aliens from our state.” Just imagine what the law can do when fully executed.

By way of review, Arizona Governor Jan Brewer signed SB 1070 into law on April 23, 2010. On July 6, 2010, the Obama Department of Justice filed a lawsuit challenging the law and requested a preliminary injunction to prevent the law from being enforced.

On July 28, 2010, U.S. District Court Judge Susan Bolton allowed key provisions of the law to be enacted, while granting the Obama administration an injunction on other provisions until the Court could determine whether these provisions are constitutional. On April 11, 2011, the U.S. Court of Appeals for the Ninth Circuit upheld the lower court’s injunction, prompting the State of Arizona to petition the U.S. Supreme Court.

Now, as with Obamacare, the High Court will decide the fate of SB 1070.

Of course, we have made our views on the matter crystal clear: The Obama administration’s hostility toward enforcement of federal immigration law is dangerous and unlawful. The Obama administration’s attacks on states that try to enforce illegal immigration laws undermine our nation’s constitutional order. We hope the U.S. Supreme Court affirms the right of the state of Arizona and other states across America to protect citizens from the scourge of rampant illegal immigration.

SB 1070 is lawful and should be upheld in its entirety.

And kudos to the work of our legal team on these important Supreme Court matters. As you might imagine, to get three separate briefs ready for the Supreme Court at the same time is no small task. Our Judicial Watch attorneys, led by my colleague Paul Orfanedes (JW’s Director of Civil Litigation), are second to none in their legal acumen, hard work, and commitment to our cause defending the rule of law and U.S. Constitution.

 JW Sues Obama Department of Energy for Records Detailing $529 Million Loan to Failing Green Energy Car Manufacturer

As you may recall, Judicial Watch has been investigating Vice President Biden’s role in securing a bailout for auto manufacturer Fisker Automotive, which opened a facility in V.P. Biden’s home state of Delaware in 2009. Well, that investigation has taken a new turn now that Fisker’s domestic operation is crumbling while funds and jobs promised to American taxpayers are heading overseas to Finland.

On February 1, 2012, JW sued the U.S. Department of Energy (DOE) for records regarding the $529 million loan granted by the DOE to Fisker – funds that were to be used to manufacture the company’s Karma and Nina electric vehicles. While the Obama White House (led by V.P. Biden) and the DOE promoted the loan as a means to generate American jobs, Fisker, which has facilities in California and Delaware, came under fire in 2011 for manufacturing cars in Finland and was recently beset with massive layoffs at their domestic operations.

Here’s what we’re after pursuant to our Freedom of Information Act (FOIA) request filed with the DOE on November 15, 2011:

Any and all records of communications between the Department of Energy and the following entities concerning and/or relating to the Department of Energy’s $529 million dollar loan to Fisker Automotive:

a. Fisker Automotive
b. Valmet Automotive
c. Kleiner Perkins Caufield & Byers
d. General Investment Management
e. The Alliance for Climate Protection
f. The United Auto Workers (UAW), The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), and/or any other labor unions
g. The government of Finland
h. The White House
i. The Executive Office of the President
j. The U.S. Congress

(The time period covered by JW’s request was October 1, 2009, through November 15, 2011.)

The DOE acknowledged receiving the FOIA request on November 25, 2011, but did not state when the requested documents would be provided. By law, a response was required by December 23, 2011. However, as of February 1, 2012, the date of Judicial Watch’s lawsuit, the DOE had failed to release any documents or indicate when documents will be forthcoming. The Obama DOE has not claimed that such records are exempt from Judicial Watch’s FOIA request.

Just like the scandalous Solyndra deal, where the Obama administration propped up a green energy company with more than $500 million American tax dollars, the Fisker bailout was long on promises, short on success, and tainted by charges of corruption and influence peddling.

On October 27, 2009, V.P. Joe Biden (a former Delaware Senator) announced during a press event that a $359 million loan from the DOE would be used to reopen a closed General Motors (GM) manufacturing facility in Wilmington, Delaware, to serve as Fisker’s “primary global manufacturing facility.”

Biden told the crowd of mostly UAW workers, who had previously worked at the plant when it was owned by GM, “imagine when this factory, when the floor we’re standing on right now is making 100,000 plug-in hybrid sedans, coupes and crossovers every single year.”

(Given Joe Biden’s advanced knowledge of Fisker’s production plans, Judicial Watch has been separately investigating whether there was any quid pro quo between Fisker and the Vice President related to the plant purchase in his home state. As reported in The Detroit News, Judicial Watch has already uncovered emails showing that Delaware politicians sought help from the Obama White House to obtain the DOE money.)

At the time of the announcement, Energy Secretary Steven Chu indicated the Fisker loan was “proof positive” that the Obama administration was “putting Americans back to work.”

However, as reported by ABC News, Fisker came under fire in 2011 for assembling its first line of cars in Finland and for lengthy delays in producing the volume of cars bankrolled, in part, with the DOE loan.

Moreover, as reported by Politico, the company is now plagued by massive layoffs in its Delaware and California operations as it seeks additional government funding.

It looks like the Obama administration has another Solyndra mess on its hands, which is why they’re stonewalling the release of records regarding this shady Fisker deal. Once again, the Obama administration shelled out over half-a-billion dollars to a failing and incompetent green energy company. To soften the blow to taxpayers, Vice President Biden promised new jobs in his home state of Delaware that were ultimately shipped overseas to Finland as Fisker’s U.S. operations deteriorated.

This loan was another flagrant waste of taxpayer dollars and just the kind of corrupt business deal one might expect when the federal government meddles in the private sector. The Obama administration needs to come clean on this deal and turn off the government spigot to Fisker. Our new lawsuit shows that the Obama administration is in full-blown cover-up mode in order to prevent the American people from accessing records about this latest debacle.

Until next week,

Tom Fitton
Tom Fitton