A Washington Times op-ed by Ammon Simon promotes arguments made in a lawsuit challenging the constitutionality of the Wall Street reform law known as "Dodd-Frank," but fails to acknowledge that these arguments are based on constitutional theories that the Supreme Court rejected decades ago.
Simon, policy counsel for the Judicial Crisis Network and a former assistant attorney general of Missouri, calls for greater support in the lawsuit against Dodd-Frank, arguing that the case is the "latest example of the important role that state attorneys general can play when it comes to resisting the federal government's excesses." He promotes the challengers' argument that the reform law is unconstitutional and writes that:
Dodd-Frank's kiss is intensified by an unconstitutional regulatory structure. The Consumer Financial Protection Bureau grants its director czar-like power, combining the authority with little legislative, executive or judicial oversight. Similarly, Dodd-Frank's Orderly Liquidation Authority authorizes unaccountable corporate death panels, which are unrestrained by meaningful judicial scrutiny, while the Financial Stability Oversight Council has unchecked power to define "too big to fail." In each instance, Dodd-Frank ignores our Constitution's mandate for separation of power into three branches of government, housing it instead in one unaccountable agency.
Kent Greenfield, a professor of corporate and constitutional law at Boston College Law School has written that the lawsuit Simon promotes is based on constitutional theories that the Supreme Court rejected long ago:
This is a lawsuit wanting to re-litigate decades of settled law.
The complaint tries to make hay from the argument that the CFPB is granted "vast authority" (para. 33) over financial firms, and may take "any action" to prevent "unfair," "deceptive," or "abusive" practices (para. 34). The worry, says the complaint (para. 36), is that the Act provides "no definition" of these terms, leaving the CFPB to enforce them through "ad hoc litigation or ... regulation." The argument is that it is unconstitutional to give agencies the power to define what is unlawful, especially when such definition is to occur after the fact.
Though the complaint does not say so, this is simply a non-delegation doctrine argument, arguing that Congress cannot constitutionally delegate to an agency the power to make law. Of course, as anyone who has taken an introductory constitutional law course is well aware, the non-delegation doctrine was first and last used by the Supreme Court to strike down a law in 1936. As I tell my con law class, it is the Eagle Eye Cherry of constitutional doctrines - it had one good year.
The last time a non-delegation doctrine argument made it to the Supreme Court, in the 2001 case of Whitman v American Trucking, it lost big. The question was whether the Environmental Protection Agency had been given too much discretion in determining air quality standards. The statute said that the EPA should set standards "requisite to protect the public health." This may not seem to be very precise, but the Court said it compared with a multitude of other statutes that contained the required "intelligible principle," for example the FCC's power to regulate in the "public interest." The Court said "requisite" meant "not lower or higher than is necessary" - hardly a paragon of exact definition.
The author of the opinion for the unanimous Court? Antonin Scalia.
Nevertheless, supporters of Wall Street reform should not take this anti-Dodd-Frank lawsuit lightly. The conservative legal infrastructure and the right-wing media have been very successful in recent years in promoting and mainstreaming highly dubious legal theories, most notably in their all-out assault on health care reform. Journalists reporting on the lawsuit should look beyond the rhetoric of supporters such as Simon to uncover the shaky foundations of the suit's constitutional arguments.
Fox News contributor Bradley Blakeman joins the right-wing media's assault on early voting by misreading the Constitution to fashion an argument that our founding document forbids early voting. In a Newsmax column, he argues that the Constitution requires that all votes be cast on a single day, although it contains no such requirement.
The Constitution provides in Article 2, Section 1 that:
The Congress may determine the Time of chusing [sic] the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
Under the Electoral College system established by the Constitution, voters choose electors, who elect the president. Thus, the Constitution sets out three -- and only three -- rules regarding the timing of voting in presidential elections. One, Congress determines when voters choose electors. Two, Congress determines "the day" on which electors cast their votes for president. And three, the day electors cast their votes "shall be the same throughout the United States."
Blakeman, a former Bush administration official, misreads these three rules as an argument that early voting is unconstitutional because "[o]ur Founding Fathers specifically set forth 'a national Election Day' -- not days." He also writes that:
I believe the Founding Fathers set forth one day for voting because they knew that in order to best execute a fair election and in order for Americans to understand and appreciate their right to vote that voting should involve some level of "sacrifice" of time and effort.
The Constitution is clear. Congress is given the responsibility to set a single day for a national election -- not days. States have no right to subvert the clear directive and intent of the U.S. Constitution when it comes to national voting.
This argument is simply wrong. The Constitution says nothing about "a national election day" or "a single day for national elections." The Founders never "set forth one day for voting." They did provide in the Constitution that presidential electors cast their votes on the same day, but the Constitution clearly distinguishes that process from voters going to the polls.
Blakeman may simply be confused about what the Constitution actually says, because he writes that the relevant provision of the document is "Article 2, Section 1: Clause 4: Election Day". In fact, the phrase "Election Day" does not appear in the original text of the Constitution. Of course, subheadings added later by editors of various published editions of the Constitution do not alter the document's meaning or have the force of law.
Blakeman is correct that in 1845 Congress passed legislation establishing a single date for voters to choose electors. But early voting and absentee voting, in which voters in many states cast ballots over a period of days or weeks, do not prevent ballots from being counted, and electors chosen, on a single day. And in any case, arguments about the law establishing a national election day are irrelevant to Blakeman's misreading of the Constitution.
Right-wing bloggers have echoed an accusation that Elizabeth Warren, the Democratic candidate for U.S. Senate in Massachusetts, allegedly practiced law without a license. But the charge was dismissed by the general counsel of the agency responsible for enforcing Massachusetts bar rules, who said that Warren's activities are not a violation of those rules.
The accusation against Warren originally appeared in the blog Legal Insurrection in a post titled "Elizabeth Warren's law license problem." Author William A. Jacobson, an associate professor at Cornell Law School, writes that, "Warren has practiced law in Massachusetts without a license in violation of Massachusetts law for well over a decade." He notes that Warren, a professor at Harvard Law School, listed her law school office as her address on a handful of legal briefs, and is not a member of the Massachusetts bar. The charge was quickly echoed by other right-wing bloggers ranging from Jim Geraghty at National Review Online, who termed the accusation a "bombshell," to Breitbart.com's Michael Patrick Leahy, who wrote that "though Warren operated a law practice from her Cambridge office for more than a decade, she never obtained a license to practice law in Massachusetts."
But according to a post on The Docket, the blog of the Massachusetts Lawyers Weekly, Jacobson's charge has been rejected by Michael Fredrickson, the general counsel of the Massachusetts Board of Bar Overseers, which is "an independent administrative body to investigate and evaluate complaints against lawyers." According to The Docket:
Rule 5.5 of the Massachusetts Rules of Professional Conduct states that an attorney cannot, without a license to practice in Massachusetts, "establish an office or other systematic and continuous presence in this jurisdiction for the practice of law." It also states an attorney cannot, without a license, "hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction."
Michael Fredrickson, general counsel for the BBO, says he does not believe a law professor would be considered to have "a continuous presence" or "an office practicing law."
"If they actually practice here - as some part-time law professors at some of the smaller schools do - they might," Fredrickson says. "But being a professor at one of the large schools, their office is a professor's office, and the fact that they tend to dabble in the practice of law doesn't run afoul of our rule. I don't think Elizabeth Warren would fall within that, such that she would have to register here."
In a post on National Review Online's Bench Memos blog, Carrie Severino critiques two recent studies by the Center for American Progress (CAP) on the increasing power of conservative and big business interests over the processes by which state court judges are selected and hold office. But her "fact-checking" effort misleads on important points.
Severino makes two significant arguments against the studies, which have been discussed by a New York Times editorial and a post on the New Yorker website by Jeffrey Toobin. She states that both CAP studies, "The Conservative Takeover of State Judiciaries" and "Big Business Taking over State Supreme Courts," greatly exaggerate the number of states in which judges are elected. And she claims that the "Conservative Takeover" study states that conservatives in numerous states have sought to give their governor the power to replace judges "at will." In each case, her argument depends on a strained and deceptive reading of the points being addressed.
Severino's claim that the studies exaggerate the number of states that "elect" their high court judges hinges on excluding the common practice of retention elections, in which judges who have reached the bench by appointment or other means periodically come before the voters in referenda on whether they should be retained in office. The studies include both states that employ retention elections and those that initially select judges through elections in their count, while Severino only counts the significantly lower number of states that use elections for initial selection. Indeed, she cites as evidence for her claim an American Judicature Society factsheet on "initial selection."
Apart from the obvious point that an election is an election, it is not reasonable to argue that retention elections are not a means of "electing" judges. Just as much as initial selection elections fill vacancies on a court, retention elections shape state courts. In recent years retention elections in states including Iowa and Florida have become high-profile, high-dollar contests over who will serve on the state's highest court. For example, The Palm Beach Post reported:
An organization with tea party flavoring is targeting [Florida Supreme Court] Justices Fred Lewis, Barbara Pariente and Peggy Quince, the high court's last appointees of late Democratic Gov. Lawton Chiles, although Quince was named jointly with former Gov. Jeb Bush.
Opponents say the justices represent a left-leaning bloc that has turned Florida's court into one of the nation's most activist judiciaries. But the justices are defending themselves, raising an unprecedented level of campaign cash for what could prove to be Florida's first hard-hitting Supreme Court campaign.
It's part of a rising trend nationally that two years ago was marked by three Iowa justices being thrown off the bench by voters following a ruling that allowed same-sex marriage in the state.
The Missouri Supreme Court's recent decision striking down a law capping damages for medical malpractice injuries because it violated the state constitutional right to trial by jury highlights ironies and inconsistencies in the views of conservative supporters of so-called "tort reform." Damage caps are a key feature in the playbook of corporate-funded tort reform organizations such as ALEC, the American Legislative Exchange Council, but they do little to address the problems their supporters claim they can solve: rising health care costs and shortages of doctors. Also, because caps restrict the historical role of juries as established by the federal and state constitutions, their popularity with many conservatives illustrates the selective and outcome-oriented nature of much conservative "originalism."
In its decision, Watts v. Cox Medical Centers, et al., the Missouri Supreme Court struck down a controversial 2005 state law that limited non-economic damages in medical malpractice cases to $350,000. Naython Watts was born with "catastrophic brain injuries" which a jury found were a result of malpractice by the doctors treating his mother during her pregnancy. The jury also found that Naython had suffered $1.45 million in noneconomic damages, which, under the damage caps law, were reduced to the statutory limit of $350,000. His mother challenged the law on his behalf, arguing that it violated the Missouri constitution, which provides that "the right of trial by jury as heretofore enjoyed shall remain inviolate." A majority of the Missouri Supreme Court, based its reading of the historical role of Missouri juries dating back to the adoption of the state constitution in 1820, agreed.
A new infographic titled "We The Plaintiffs" is popping up around the Internet. Calling itself "A Closer Look at America's Obsession with Lawsuits," the chart could more accurately be described as the distilled essence of the tort reform movement's difficult relationship with the truth. As with so much of the tort reform disinformation common in the media, it deploys misleading statistics and deceptive anecdotes to paint a distorted portrait of a nation in which rogue plaintiffs run wild. An exhaustive debunking of "We the Plaintiffs" by the Center for Justice & Democracy demonstrates that a chart accurately reflecting the current state the justice system might better be titled "We The Corporations."
The "We The Plaintiffs" chart has already made its way from the blog of the pro-tort reform organization Common Good to the legal gossip blog "Above the Law," and seems destined, like so many collections of urban legends on this topic, to be periodically recycled by tort reform supporters. "We The Plaintiffs" gets many things large and small wrong. Below are three big ones.
Debt collection by banks and other businesses accounts for much of the total number of lawsuits.
The picture "We the Plaintiffs" attempts to paint of what it calls a "sue-happy nation" (emphasis in original) is contradicted by data on who actually files lawsuits. According to the National Center for State Courts, personal injury and other tort cases account for only five percent of new cases, with debt collection and other suits based on contracts accounting for 70 percent of caseloads. A closer look at caseloads in Kansas, a state that closely tracks data on the kinds of cases in its court system, shows that, in 2009, 80 percent of new cases were contract disputes, and 75 percent of those were debt collections.
The chart's estimate of costs is wildly overinclusive, and pulls in costs having nothing to do with lawsuits.
The infographic includes a graph which claims that, in 2003, $251 billion, or 2.2 percent of GDP, "went to tort costs." According to the Center for Justice & Democracy, the data underlying the study cited by the infographic "actually have no connection whatsoever to the costs of lawsuits, litigation or the courts." The study, by insurance industry consulting firm Towers Watson, actually looked at all payouts on insurance claims (such as routine "fender bender" auto accidents), even if no lawsuit was filed, and also includes the insurance industry's administrative overhead, including salaries, executive bonuses, advertising, rent and commissions paid to agents.
The chart plays up "frivolous" lawsuits and the costs associated with them, even though four of the five cases cited were dismissed.
In the American legal system, judges have the power to dismiss cases that they believe to be without merit, and even punish lawyers who bring frivolous suits. "We The Plaintiffs" cites five cases as evidence of frivolous lawsuits, but acknowledges that three of them were "dismissed," "rejected," or "unsuccessful," and one even "never made it to court." The chart is thus arguing with itself, by presenting evidence that the system worked in support of its claim that the system somehow isn't working.
Marc Thiessen's recent attack on Chief Justice John Roberts for his opinion upholding the health care reform law attempts to move the right's ideological goal posts for the Court from the strongly conservative part of the field into what Reagan Administration Solicitor General Charles Fried has called "radically reactionary" territory. Thiessen, a former George W. Bush speechwriter, expressed his discontent in a July 2 Washington Post op-ed that criticized Roberts - a Bush appointee - for agreeing with the court's liberal members in an opinion upholding the Affordable Care Act. He framed his attack as a lament over the supposed difficulties Republican presidents have had in confirming dependably conservative justices.
But in doing so, Thiessen downplayed Roberts' extensive record of voting similarly to his fellow conservatives, especially Samuel Alito, whom Thiessen identified as a reliable conservative. Thieseen also ignored the well documented shift in the court's ideological center in recent years: the four "liberal" justices are much closer to the center than William Brennan, Thurgood Marshall and other justices on the court's left only a few decades previously. In this way, Thiessen paints a picture of liberal triumph and conservative frustration which bears scant relationship to reality, which is the most conservative Supreme Court in modern times.
Thiessen grouped Roberts with justices who disappointed conservatives (Sandra Day O'Connor and David Souter, both of whom are no longer on the court) as opposed to acknowledged right-wing successes Antonin Scalia, Clarence Thomas, and Samuel Alito. He attempted to make this case by focusing solely on the health care decision, and downplaying the rest of Roberts' record as a justice.
That record is clear. Roberts is, to use Thiessen's expression, a "rock-ribbed conservative." In the just-completed 2011 Supreme Court term, he voted with the Thiessen-approved Justice Alito in 90.5 percent of cases, after voting with him 96.2 percent of the time in the 2010 term. Roberts also voted with Justice Thomas in 87.8 percent of cases and Justice Scalia in 86.5 percent of cases in the most recent term. In other words, in the overwhelming majority of cases, Roberts votes with the justices whom Thiessen acknowledges to be acceptably conservative.
Right-wing media figures are heaping harsh criticism on Chief Justice John Roberts for his opinion upholding the Affordable Care Act as constitutional. These critics ignore Roberts' record as Chief Justice, which is very conservative. But even this conservative justice recognized that the Constitution gives Congress the power to address the nation's health care crisis with the Affordable Care Act.
Breitbart.com editor-at-large Ben Shapiro blasted the Chief Justice:
I knew that Roberts was a bad pick because he didn't have a proven track record of adherence to the Constitution. He was picked by President Bush because Bush knew he didn't have a track record - and he knew that Roberts would sail through the confirmation process without a hitch.
That should have been an indicator that Roberts was a rotten pick. Nobody doubted Robert Bork's originalist credentials. Nobody doubted Clarence Thomas'. Nobody doubts Judge Janice Rogers Brown's. But nobody had any reason to buy into Roberts as an originalist. Yet they did.
Dan Gainor, Media Research Center's vice president for Business and Culture called the decision to nominate Roberts "awful."
Fox News Radio's Todd Starnes applied the "L word" to Roberts.
This attempt to paint Chief Justice Roberts as a closet liberal is absurd. Experts have called the Supreme Court under Roberts the "most conservative in modern history." As the leader of a five justice conservative majority, Roberts has played a leading role in decisions like Citizens United (empowering corporations and wealthy individuals to spend unlimited money in political campaigns); Wal-Mart (preventing women alleging sex discrimination from joining together to seek justice); Concepcion (allowing corporations to manipulate fine print in contracts to keep ripped off consumers from joining together in court); and Ledbetter (preventing a woman who was paid less than men from going to court).
Also, the U.S. Chamber of Commerce enjoyed a perfect year with the Roberts Court this term, winning every case in which the Court ruled on the position the Chamber took, according to a study by the Constitutional Accountability Center. (The Chamber took no position on the constitutionality of the Affordable Care Act, but merely argued that if the mandate were struck down, the entire Act should be invalidated). According to the study, the Chamber has not won every case in a term since at least 1994.
Rather than calling John Roberts names or trying to make the absurd case that he is a closet liberal, the right should simply acknowledge that their crusade to kill the Affordable Care Act failed because they lost the vote of the deeply conservative, Republican-appointed Chief Justice who heads one of the most conservative and pro-corporate courts in history.
Consider the following scenario: Congress passes an important economic regulation designed to address a major national problem over massive opposition from conservative and corporate interests. Defeated in the democratic process, these forces then launch a legal attack, using a novel theory to claim the law is unconstitutional. Right-wing media cheer the suit, claiming it is a fight for freedom.
Sound familiar? It should, given the unresolved fate of the Affordable Care Act, but this time the reform in the right's crosshairs is not health care. It's consumer financial protection. A new lawsuit and right-wing media campaign have taken aim at the Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank law in response to the 2008 financial market collapse. The purpose of CFPB is to "promote fairness and transparency for mortgages, credit cards, and other consumer financial products and services." Although the legal arguments made in the suit are questionable, the case should not be dismissed as harmless. The right-wing media's proven ability to move dubious legal claims into mainstream debate combined with a conservative federal judiciary sympathetic to corporate interests mean the CFPB suit bears close scrutiny.
The lawsuit alleges that CFPB and another entity, the Financial Stability Oversight Council (FSOC), which oversees the law's "too big to fail provisions," are unconstitutional because key provisions of Dodd-Frank are too vague and do not provide sufficient oversight of the agencies' actions. They also challenge President Obama's recess appointment of CFPB Director Richard Cordray following a Republican filibuster of his nomination.
Legal experts are already expressing skepticism on the suit's merits. Deepak Gupta, an appellate lawyer and former CFPB official, called the suit "more a political stunt than a serious legal challenge" and questioned whether the plaintiffs challenging the law have standing to do so. ("Standing" is a legal requirement that a party to a case be at least at risk of suffering a real harm from the action complained of.) A small community bank in Texas is a plaintiff in the case (along two conservative organizations), and an article in the American Banker questioned whether the bank is large enough to be subject to the provisions of which it complains.
The Roberts Court's five Republican-appointed justices invented a new rule that threatens to greatly weaken public employee unions in yesterday's Knox v. SEIU decision. Reaching out to decide an issue that the parties to the case never argued, these justices instead engaged in "radical policy-making" using an argument drawn from a friend of the court brief submitted by the Cato Institute and a coalition of other right-wing organizations. As the cheerleading for the decision by right-wing institutions and blogs makes clear, the decision is much more likely to be the first battle in a new legal war on public employee rights than a mere reworking of technical legal rules.
In the case, the five conservative justices turned precedent on its head to severely limit the ability of public employee unions to spend fees from employees they represent to fight anti-worker political battles. The limits adopted by the conservative justices went beyond what even the parties in the case had requested.
The Knox decision is evidence that the Court's Republican-appointed conservative majority has decided to inject the Court into the national debate on workers' rights, according to both Justice Stephen Breyer, who dissented in the case, and Steven Hayward of the right-wing Powerline blog. Justice Breyer noted that states have taken varied approaches to nonmember rights in union workplaces, and that the political debate on this subject, especially with respect to public employees, is "intense." Now, he observed, the conservative justices have not only entered the debate, but apparently "decide[d] that the Constitution resolves it." Powerline's Hayward agrees, writing that the Knox decision's effect will be "similar to the Scott Walker reforms in Wisconsin that have devastated public employee union political capacity there. Step by step."
Constitutional scholar Garrett Epps calls Knox "the Court's Scott Walker Moment."