Jack Smith argues it's "of imperative public importance" that the Supreme Court decide Trump's claim of immunity as quickly as possible.

I'm reading "Special Counsel Asks Supreme Court to Decide Whether Trump Is Immune From Prosecution/The request was unusual in two ways: Jack Smith asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed" (NYT).

Why the big rush? 

"The majority opinion was unsigned and consisted of a single long paragraph. It said the abortion providers who had challenged the law in an emergency application to the court..."

"... had not made their case in the face of 'complex and novel' procedural questions. The majority stressed that it was not ruling on the constitutionality of the Texas law and did not mean to limit 'procedurally proper challenges' to it."

From "Supreme Court, Breaking Silence, Won’t Block Texas Abortion Law/The law, which prohibits most abortions after six weeks and went into effect on Wednesday, was drafted by Texas lawmakers with the goal of frustrating efforts to challenge it in federal court" (NYT).

The "complex and novel" procedure — empowering random citizens to bring lawsuits against individuals — is a reason why getting early relief from this law is especially important. But it did make it hard to satisfy the traditional requirements for federal courts to act, which is exactly what the legislature meant to do. 

Usually, a lawsuit seeking to block a law because it is unconstitutional would name state officials as defendants. However, the Texas law... bars state officials from enforcing it and instead deputizes private individuals to sue anyone who performs the procedure or “aids and abets” it.... Plaintiffs, who do not need to live in Texas, have any connection to the abortion or show any injury from it, are entitled to $10,000 and their legal fees recovered if they win....

Here's the full opinion. There were 4 dissenters — the liberals plus Chief Justice Roberts. How did they get around the procedural problem (other than by sheer outrage at the aggressive attack on a well-established constitutional right)? The defendants in the case are — with one exception — state judges, who may, at some future time, have to deal with cases that may be filed under this new law. 

These judges are obligated (under the Supremacy Clause) to apply federal law, and they ought to dismiss any cases that are brought under the new law, because the law is, under current binding precedent, unconstitutional. For federal courts to enjoin state judges from enforcing the law, they would need to presume the state judges won't perform their duty as judges. 

"A Texas law prohibiting most abortions after about six weeks of pregnancy went into effect on Wednesday after the Supreme Court failed to act on a request to block it..."

The NYT reports:

The justices may still rule on the request, which is just an early step in what is expected to be an extended legal battle over the law.... The law makes no exceptions for pregnancies resulting from incest or rape.... 

"Madison residents sue over college financial aid program limited to certain students of color."

The Wisconsin State Journal reports: 

A law firm representing conservative interests, the Wisconsin Institute for Law & Liberty, filed the action against the Higher Educational Aids Board in Jefferson County Circuit Court.... The board administers the Minority Undergraduate Retention Grant program, which provides students of color with up to $2,500 per year to offset the cost of college....  State law restricts program eligibility to African American, American Indian, Hispanic and some Southeast Asian students.

WILL argues the program criteria amounts to racial discrimination — which is prohibited by the state constitution — because students who are Thai, Chinese, Japanese, Indian, North African, Native Hawaiian, Pacific Islander, or white don't qualify....

The program has been around since the 1980s.

WILL has taken a recent interest in reviewing laws and programs through a lens of racial equality.... Those include minority business grants or preferences, loan forgiveness programs and a racial quota for the city of Madison's Police Civilian Oversight Board....

You might think that these programs would all have been challenged when they were first adopted and that there should already be a judicial answer to the question — which is glaringly obvious — whether this is illegal race discrimination. I think the only new item on that list is the racial quota for the city of Madison's Police Civilian Oversight Board. 

I note that the law suit was filed in state court and the claim is based on state constitutional law. 

(To comment, you can email me here.)

"The Department of Justice today filed a statement of interest in an Illinois federal court in support of a lawsuit filed by Illinois state representative Darren Bailey challenging certain actions of Governor J.B. Pritzker..."

"... in response to the COVID-19 pandemic. The Statement of Interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General Eric Dreiband for the Civil Rights Division, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.... According to the lawsuit, the Governor’s actions are not authorized by state law, as they extend beyond the 30-day time period imposed by the Illinois legislature for the Governor’s exercise of emergency powers granted under the Act.... In its statement of interest, the United States explains that this dispute belongs in Illinois state court... Although the complaint does not raise any federal constitutional claims, the statement explains... states must comply with their own laws in making these sensitive policy choices in a manner responsive to the people and, in doing so, both respect and serve the goals of our broader federal structure, including the guarantee of due process in the U.S. Constitution."

A press release from the U.S. Department of Justice.

So... it's an Illinois state law question that belongs in Illinois state court, which is where it is but was and the Department of Justice would like to say that states should follow their own laws and should make policy choices carefully because it's at least conceivable that there could be a federal law issue in there somewhere. Might violate due process in some way, might not "serve the goals of our broader federal structure" — whatever that means.

If you're trying to remember the recent post here about Darren Bailey — it's here, 2 days ago. He was the one Illinois legislator who refused to wear a mask in the legislative chamber and got kicked out.

CORRECTION: As the heading of this post says, the case is in an "an Illinois federal court," so I was wrong to write "it's an Illinois state law question that belongs in Illinois state court, which is where it is."

ADDED: Here's a Chicago Sun Times article explaining that Pritzer filed on Thursday to remove the case to federal court, which he has the right to do under federal law if Bailey has stated a federal cause of action: "The governor made the move on the grounds that Bailey alleged a violation of his federal constitutional rights. [Bailey's lawyer] denied that Bailey had raised such a claim." Another Bailey lawyer says the effort to remove to federal court is “perhaps the most outrageous invocation of federal jurisdiction imaginable" and "an egregious attempt to neuter a state court."

So the DOJ's statement isn't about the hint of federal law in the background. It's about the federalism value letting state courts determine the meaning and application of state law. This isn't just a matter of  letting states function separately in our federal system. It's a matter of getting an authoritative interpretation of state law.

"Trump campaign sues The New York Times for libel over Russia opinion article."

CNBC reports.

The lawsuit, which was filed in New York State Supreme Court in Manhattan, claims “millions” of dollars in damages, but does not give a specific monetary amount.

Filed in state court. The defendant could remove to federal court, however. The case arises under state law, but there's diversity jurisdiction. I'm trusting this NYT article, which says that Trump is now domiciled in Florida. [ADDED: As someone mentions in the comments, it may be that the named plaintiff isn’t Trump but the Trump campaign. The would change the jurisdiction analysis. I have trouble seeing how the campaign has a defamation claim.]

Here's the NYT article with the alleged defamation:  "The Real Trump-Russia Quid Pro Quo/The campaign and the Kremlin had an overarching deal: help beat Hillary Clinton for a new pro-Russian foreign policy" (March 27, 2019). It begins:

Collusion — or a lack of it — turns out to have been the rhetorical trap that ensnared President Trump’s pursuers. There was no need for detailed electoral collusion between the Trump campaign and Vladimir Putin’s oligarchy because they had an overarching deal: the quid of help in the campaign against Hillary Clinton for the quo of a new pro-Russian foreign policy, starting with relief from the Obama administration’s burdensome economic sanctions. The Trumpites knew about the quid and held out the prospect of the quo.

Run down the known facts about the communications between Russians and the Trump campaign and their deal reveals itself. Perhaps, somewhere along the line, Russians also reminded the Trump family of their helpful cooperation with his past financial ventures. Perhaps, also, they articulated their resentment of Mrs. Clinton for her challenge as secretary of state to the legitimacy of Mr. Putin’s own election. But no such speculation is needed to perceive the obvious bargain reached during the campaign of 2016.

From the CNBC article:

The lawsuit, in its opening sentence, noted the article’s subhead and Frankel’s lead paragraph. “The Times was well aware when it published these statements that they were not true,” the suit said.... “There was no ‘deal’ and no ‘quid pro quo’ between the Campaign or anyone affiliated with it, and Vladimir Putin or the Russian government,” the suit stated.

Eh. There was a "deal" and a "quid pro quo" in the special sense defined by the author. This is the same idea of "quid pro quo" that was relied on by the Democrats when they impeached the President. There didn't need to be any outward expression of a deal or a this-for-that. It was only within the President and the foreign leader's mind, and we can infer what it was. There's an immense difference, however, between a writer in private newspaper spelling out his inferences for readers who can proceed to think for ourselves and using the machinery of the government to force the President into a legal proceeding that would deprive the people of the leadership of the person we chose in the last election.

And by "we," I mean we as a group. I did not vote for Trump, but I respect the group effort —  the immense slog — of electing a President of the United States. We're going through the process again, and it's a mind-boggling, multi-year ordeal. It's horrible to think of messing with the result using an intra-congressional legal device.

This gets my "lawsuits I hope will fail" tag. Freedom of speech, you idiots.

"The president is not a lawyer. He’s not law-trained. But the truth is, the judiciary is a reactive institution. We don’t have a program, we don’t have an agenda. We react to what’s out there."

Said Ruth Bader Ginsburg last night, when she was asked what she thought about something Trump tweeted a couple weeks ago:

Just landed in the United Kingdom, heading to London for NATO meetings tomorrow. Prior to landing I read the Republicans Report on the Impeachment Hoax. Great job! Radical Left has NO CASE. Read the Transcripts. Shouldn’t even be allowed. Can we go to Supreme Court to stop?

— Donald J. Trump (@realDonaldTrump) December 2, 2019

Ginsburg's answer is open to interpretation, and it's really not at all insulting to Trump. Here's how I read it: Because Trump is not a lawyer, he's free to float ideas about things, and he doesn't purport to know the answer, only to ask a question. Of course, his own lawyers could answer the question for him. Can we go to Supreme Court to stop the impeachment?

The answer is no, but Ginsburg isn't going to come right out and say it, and in all likelihood, the President himself knew the answer was no when he tweeted the question. The question is political rhetoric, and the reason to ask it is to make people feel that the House Democrats are behaving badly, violating the law, and it should be stopped. The President is very good at expressing feelings about what is fair and what is abusive, and such things can find their way into the law. I am sure Ginsburg has deep thoughts about that, far beyond what she'll say when asked a question by a journalist.

Now, you might ask, but if she says, "We react to what’s out there," does that mean she reacts to the President's howling about unfairness and abuse? It primarily means, I would say, that the courts don't do anything at all unless a case is filed, and if it is, and if it isn't filtered out by doctrines of jurisdiction and justiciability, the decision may be influenced by the public discourse about what the law should be. But certainly the Court can't reach out and become involved in a dispute ("We don’t have a program, we don’t have an agenda"). A case must be filed. And Trump — even though he's not a lawyer — reflects that proper understanding of the courts. He didn't say, Hey, Court, why don't you stop this travesty?! He said, "Can we go to Supreme Court to stop?"

The panel of judges in the Wisconsin redistricting case decline the work of doing the new line-drawing.

The Republican-dominated state legislature will have to redraw the lines itself, which the panel had found to be unconstitutional political gerrymandering.

“It is the prerogative of the state to determine the contours of a new map,” the three-judge panel ruled.

That was a significant loss for the plaintiffs, after their win on the merits last fall.

The same three-judge panel ruled in November that Wisconsin’s legislative boundaries are an “unconstitutional partisan gerrymander” that “was intended to burden the representational rights of Democratic voters … by impeding their ability to translate their votes into legislative seats.”

And the win on the merits is unlikely to survive Supreme Court review. The state is going to appeal to the Supreme Court, and the jurisdiction statute requires the Court to take the case on appeal directly from the district-level panel. No stop at the 7th Circuit. No petition for certiorari. This will be heard in the Supreme Court — which has never found any redistricting to be unconstitutional political gerrymandering.

This case introduced a new way to measure the equal protection problem in districting, the "efficiency gap" which looks for each party's "wasted votes":

Wasted votes, accrding [sic] to the efficiency gap’s creators, are the number of “lost” votes cast for losing candidates and “surplus” votes for victorious candidates in excess of what they needed to win.

This test helps Democrats overcome the problem of having its voters concentrated in relatively small geographic spaces — that is, cities. It would make an equal protection problem out of a pattern of human behavior. It's basically the same problem Democrats have with the Electoral College: Their voters aren't spread out enough geographically. This is a terrible problem for Democrats, but I can't believe the Supreme Court will inscribe their mathematical fix into constitutional law.

And yet if the case were to go through the current 8-person Court, I think the panel's decision would be affirmed by an equally divided Court. And if Hillary Clinton had won the election and had the Supreme Court appointment to make, the new Democratic-Party-favoring test may very well have become the law.

"If this entity were based south of our border, the federal government would prosecute it as a drug cartel."

Nebraska and Oklahoma said to the U.S. Supreme Court, asking for permission to begin its litigation against Colorado in the country's highest (no pun intended) court — that is, to use the Court's original jurisdiction.

"The State of Colorado authorizes, oversees, protects and profits from a sprawling $100-million-per-month marijuana growing, processing and retailing organization that exported thousands of pounds of marijuana to some 36 states in 2014..."

The Court said no. That was the answer the federal government wanted. The Solicitor General argued that Colorado had not "directed or authorized" anyone to take marijuana over the state border. The states can still begin their litigation at the federal district court level.

Justice Thomas, joined by Justice Alito, wrote a dissenting opinion. Thomas's opinion questions the Court's longstanding notion that its original jurisdiction is discretionary. The Constitution says "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." Art. III, §2, cl. 2. Nothing in federal statutory law purports to create discretion. So Thomas would like some "reconsideration" of the "discretionary approach."

"In complete disregard of the unfortunate truth that not all dogs are like the beloved Lassie, a vicious dog has been granted a pardon by the highest court of this State."

Wrote Justice Allen H. Loughry Jr., dissenting from an opinion by the West Virginia Supreme Court of Appeals, that let a pit bull terrier off on a technicality.

The dog’s troubles stem from a biting incident last year when an animal control officer responded to a complaint about Major and another dog at the home of Bluefield resident Estella Robinson, according to the court’s opinion. A municipal judge directed that the city kill the dog, citing a city ordinance that authorizes the destruction of dogs deemed “vicious, dangerous or in the habit of biting or attacking persons.”

Ms. Robinson, who last year pleaded guilty to having a dangerous animal, claimed that the municipal court’s death sentence clashed with a state dog regulation that says only circuit and magistrate courts may decide the fate of an allegedly dangerous canine. The state’s highest court agreed with her.

“A municipality seeking an order to kill a vicious or dangerous dog must do so in circuit or magistrate court,” wrote Justice Menis E. Kethum in the opinion....

Justice Loughry said he loves animals — recalling his “fond memories of [his] childhood companion and faithful dog, ‘Bozo,’ — but said he’s not blinded to “the sad reality” that some dogs are dangerous and vicious.

Bozo... Lassie... Either a court has jurisdiction or it doesn't. Everyone knows some dogs, like some people, are heartless bastards, but if the state wants to deprive the worst of us of life or liberty, it has got to follow the right procedures.

Rereading that last sentence, I see 2 important points I must make.

1. When a dog is a heartless bastard, it's almost surely the fault of the person who raised it (not necessarily the current owner). And maybe when a person is a heartless bastard, it's also some other person's fault. Who deserves to die, when it's heartless bastards all the way down?

2. Loughry decorated his opinion with remarks about Bozo and Lassie, but he had his analysis on the jurisdictional issue too:

While the majority acknowledges the statutory authority of municipalities to enact ordinances, it cavalierly disallows the enforcement of such ordinances in municipal courts simply because a statute allows for counties to seek the destruction of vicious dogs in either magistrate or circuit court... [W]ill the majority’s ruling be relied upon in the future to strip municipal courts of their power to enforce other ordinances, such as those involving assault and battery and hate crimes, merely because there are statutes that also authorize the prosecution of such matters in either magistrate or circuit court?

The West Virginia legislature could easily fix this problem and make the municipal court's power explicit, but now they'll have to do it while the dog lovers are staring right at them. Loughry attempts to rebalance the empathy:

Will the confusion created by the majority effectively sanction future and potentially fatal attacks by vicious dogs upon unsuspecting children as they walk to school within a city’s limits? Will an elderly couple be mauled by a vicious dog in their front yard as they rake leaves?

And I see 2 follow-on points after #2, supra:

1. It almost sounds like the dogs are reading the opinion and deciding to rampage. There was never a judicial opinion so clear that it wouldn't confuse a dog. Or, really, no judicial opinion, not even the most confusing absurdities of a jurisdictional kind, would confuse a dog. (This is the iconic cartoon that depicts how a dog experiences the laying down of the law.)

2. I love Loughry's selection of victims for his what-if questions: the unsuspecting children walking to school and the elderly man and wife raking leaves in their own yard. And the dogs are just "vicious." There are plenty of people who — nice and not-so-nice, engaged in wholesome activities or not — get bitten because  they do something that scares a dog who's generally more or less reining in his beastly propensities.

"John Doe investigation halted again after finding that appeal was 'frivolous.'"

The Wisconsin State Journal reports:

The John Doe investigation into possible illegal coordination between Gov. Scott Walker's campaign and several conservative groups has once again been halted after a federal judge on Thursday dismissed as "frivolous" an interim appeal by the prosecutors in the case.

U.S. District Judge Rudolph Randa issued the decision less than a day after the 7th Circuit U.S. Court of Appeals in Chicago stayed an earlier ruling ending the secret "John Doe" investigation.

The appeals court said Randa erred in not first deciding whether the emergency appeal — in which prosecutors argued they had sovereign immunity from being sued in their official capacity — was frivolous.

In his ruling Thursday, Randa wrote that he was "absolutely convinced that the defendants' attempt to appeal this issue is a frivolous effort to deprive the court of its jurisdiction to enter an injunction."

Here's my post discussing Randa's decision on the jurisdictional issues, the most important of which was based on the Younger abstention doctrine. Randa had the power to prevent an appeal on that question by calling it frivolous, and the 7th Circuit yesterday had stayed Randa's preliminary injunction until he took the step that he has now taken.

The jurisdiction questions in the same-sex marriage cases.

Explained in a layperson-friendly way by lawprofs:

Today in the Supreme Court: the Defense of Marriage Act.

Adam Liptak explains the statute and the arguments against it.

This law was passed in 1996 — almost 20 years ago. Why has it taken so long to get to an answer about its constitutionality? I did a final exam in my Constitutional Law class based on DOMA in, approximately, 1996.

One thing about the current case: It has a crisply defined embodiment of the asserted constitutional right — an 83-year old woman (Edith Windsor) whose spouse died and left her property that would be tax free if the IRS recognized her marriage and who is stuck instead with a $360,000 tax bill.

Her opponent is "United States," a formidable party, usually, but in this case, bizarrely vague:

[I]n February [2011], Attorney General Eric H. Holder Jr. announced that he and President Obama had concluded that [DOMA] was unconstitutional and unworthy of defense in court. Mr. Holder added that the administration would continue to enforce the law.

That's unpleasant. They're lying back waiting for the Court to do the difficult work.

[The administration] agrees with Ms. Windsor that the law is unconstitutional, but will not pay her the tax refund she seeks. House Republicans, represented by Paul D. Clement, a former United States solicitor general, intervened in the case to defend the law, losing in the lower courts.

Even though the administration’s legal position prevailed in the lower courts, it filed an appeal to the Supreme Court, saying the matter should be decided by the nation’s highest tribunal.

The Supreme Court appointed Vicki C. Jackson, a law professor at Harvard, to argue a position not fully supported by any party: that the case’s odd procedural posture means the court lacks jurisdiction to decide it. The court scheduled a separate 50-minute argument on that question.

Does anyone want that argument to succeed? But I await Professor Jackson's arguments. It might be that the Court shouldn't rescue the administration from its politically uncomfortable position. But I feel sorry for the Edith Windsors whose cases are not governed by the 2d Circuit opinion.

Cert. grant for civpro buffs.

Just now... in Walden v. Fiore:

Issue: (1) Whether due process permits a court to exercise personal jurisdiction over a defendant whose sole “contact” with the forum state is his knowledge that the plaintiff has connections to that state; and (2) whether the judicial district where the plaintiff suffered injury is a district “in which a substantial part of the events or omissions giving rise to the claim occurred” for purposes of establishing venue under 28 U.S.C. §1391(b)(2) even if the defendant’s alleged acts and omissions all occurred in another district.

The Supreme Court Justices "seemed to be all on the same page looking for a way to go ahead and decide the case even though they had different views on what theory to use."

A first report from today's oral argument about the applicability of the Anti-Injunction Act to the Obamacare litigation. Kevin Russell says that there was "skeptical questioning from at least 5 Justices." They all seemed to want to get over the purported threshold barrier and on to the substantive merits of the case, though they seemed to  who were offering different theories about why they should go forward with the case.

According to Russell, Justices Breyer and Sotomayor focused on the idea that the penalty for failure to buy insurance is not a tax. Justice Scalia gravitated toward a rule of statutory construction: jurisdictional limits are usually construed narrowly. Justice Alito looked at the government's failure to raise the Anti-Injunction Act bar, which could constitute a waiver of the bar that would be effective as long as the Act isn't considered a jurisdictional limitation (that is, a limit on the judicial power that the courts must observe whether the parties want them to or not).

The Chief Justice asked the Solicitor General (representing the U.S. government) to waive the Anti-Injunction Act (which would be effective only if the bar is not jurisdictional), but he refused. The Chief pressed him: Why would it not be in the interest of the United States to waive the Act? From Russell's report, it sound like the SG's answer stress the importance in other cases of having the act work as a jurisdictional bar. (That is, it helps the U.S. collect taxes if it lacks the power to waive the limitation, because in those other cases, the government's lawyers may fail to raise the bar in time to avoid waiver and then later want to invoke it.)

UPDATE: You can listen to the oral argument and read the transcript here.

UPDATE 2: On page 35 of the transcript, I detect eagerness in Justice Ginsburg to say that the Act does not apply in order to avoid the question whether the act is jurisdictional. When the SG agrees with her that the question could indeed be avoided, Justice Kennedy says "Don't you want to know the answer?" and gets a laugh. Kennedy then bears down: You just said "it would be very troubling to say that it's not jurisdictional," but why don't you think the opposite: That it would be good to know that the Act is waivable? The answer is that the government wants to be able to use the act as a bar in cases where the government's lawyers may have inadvertently waived it. (This point is in the original post, and I think Russell or the transcript misidentifies the Justice asking the questions. Was it Roberts or Kennedy?)

The big week of Obamacare oral arguments begins with "the most boring jurisdictional stuff one can imagine."

It's like "a kind of practical joke that the court is playing on the public," says Paul Clement (who represents the 26 states that are challenging the law). (Personal note: I teach the law school course Federal Jurisdiction, and this "anti-injunction" topic — by chance — is up for discussion this week.)

In the Supreme Court, the administration suggested that the justices appoint an outside lawyer to argue that the [Anti-Injunction Act] bars the challenges. The justices asked Robert A. Long to do so, and he goes first on Monday.... Mr. Long says the 1867 law is “jurisdictional,” meaning it forbids courts to hear suits even if, as here, neither side objects....

In the health care law, Congress called the required payment a penalty rather than a tax. But the penalty is contained in the Internal Revenue Code, and the health care law says it is to be “assessed and collected in the same manner” as a tax....

[Solicitor General Donald B.] Verrilli’s argument that the penalty is not a tax for purposes of the 1867 law is in potential tension with one he will make on Tuesday, that the mandate was authorized not only by Congress’s power under the commerce clause but also by its power to levy taxes.

It's not a tax whenever you don't want it to be, and it is when you do. That's the administration's argument! And that's what the NYT — in the linked article by Adam Liptak — calls "potential tension." (Cue the comments: This is why people hate lawyers.)

Mr. Verrilli argues that the name that Congress gave the payment required for violating the mandate in the health care law —a penalty, not a tax — matters for purposes of the 1867 law but is irrelevant in connection with the constitutional taxing power, where “it is the practical operation of the provision, not its label, that controls.”

See how easy it is to dissipate the tension? Why, it's an orgasm of tension relief! The old law refers to things designated a "tax," but Congress chose not to call the penalty a "tax." To call it a tax would have further inflamed the political opposition to the health care bill. Now that the bill has passed, however, we can coolly examine what it really is, and what it really is is what counts when the question is whether Congress has an enumerated constitutional power. It really is a tax, so it's within Congress's power to tax. That's the argument.

Isn't it fascinating how everything works to bulk up the power of Congress? Congress built political support by not saying tax when the bill was up for a vote, and it claims constitutional power by saying tax at the point when the Court is analyzing the bill after it is passed. What's most frustrating about this it's-not-a-tax-it-is-a-tax turnabout it that when the Court interprets Congress's powers, it exercises restraint, deferring to the political process, because that's where policy decisions are properly made. But  it was at the political, policy-deciding stage where Congress hid the reality of this massive new TAX.

But today is only about the Anti-Injunction Act, and it's key that the challenge is to the requirement that everyone buy health insurance and not just to the penalty that is imposed on those who don't meet the requirement. The requirement isn't a tax, even if the penalty is a tax. But it seems that the Taxing Power argument depends on the characterization that all we really have here is a tax, that the mandate is actually nonexistent. As I was saying the other day, that makes a lot of sense: The penalty is so small in relation to the cost of buying insurance that the requirement operates merely to define who owes the tax.

And yet, when Congress was passing the bill, the people never understood it that way. It was utterly hidden under an incomprehensible mass of text and propaganda. There was no transparency. It rankles to think that Congress could acquire this dramatic power by a monumental political deception. But will this shake the Court out of its usual position of comfy restraint? Perhaps we'll get a hint of an answer today, as the Justices react to the lawyerly contortions around the Anti-Injunction Act.

"The Case Against Referendums: From Greece to California, They Always End Up Undermining Democracy."

David Bell in TNR:

Modern states are far too large and complex for direct democracy. Since it would be hugely impractical for the people, as a whole, to decide on everything from the size of foreign aid budgets to new environmental regulations, they delegate the business of government to elected representatives....

[I]n practice bodies of elected representatives so often seem to devolve into corrupt, complacent and long-lasting oligarchies. Anger at the shenanigans of the political class has helped keep the old suspicions alive right down to the present day, and has led, in democracies across the world, to countless institutional schemes designed to keep elected representatives in check: “imperative mandates” (detailed orders for how to vote in parliament, drawn up and approved by constituents); term limits; making the job part-time; judicial oversight; etc. The single most popular such scheme, however, has been the referendum....

[But referendums] take relatively technical issues away from legislators who have the time and expertise to deal with them, and give them to voters who do not....

[Referendums] tie the hands of legislators in potentially destructive ways....

[R]eferendums tarnish the legitimacy of legislators by subjecting their work to direct popular veto, and therefore casting it as a less genuine expression of popular sovereignty—despite the fact that the routine functioning of a democratic constitution is the most important expression of this sovereignty.

By the way, the U.S. Constitution prescribes the specific method for legislating and amending the Constitution, and that excludes the referendum as a check on Congress, but there is also an argument that the state-level referendums violate the U.S. Constitution. In 1912, the U.S. Supreme Court announced that it was not the proper role of the courts to give an answer to that particular question of law, and referendums have continued ever since. What a missed opportunity!

"[Ron] Paul’s experience in science and medicine only reinforced his belief that life begins at conception..."

"... and he believes it would be inconsistent for him to champion personal liberty and a free society if he didn’t also advocate respecting the God-given right to life—for those born and unborn. After being forced to witness an abortion being performed during his time in medical school, he knew from that moment on that his practice would focus on protecting life.  And during his years in medicine, never once did he find an abortion necessary to save the life of a pregnant woman."

From a page on Ron Paul's website that I got to from a link in a Matthew Yglesias post titled "Ron Paul's Strange Freedom." Yglesias says:

[I]f it weren’t for his loud fanbase of self-proclaimed libertarians you wouldn’t really think [Ron Paul is] a libertarian. He’s loudly trumpeting his plan to impose criminal penalties on women who terminate their pregnancies...

Would Ron Paul punish women who get abortions as criminals? His website says he "will continue to fight for the same pro-life solutions he has upheld in Congress, including..."

* Immediately saving lives by effectively repealing Roe v. Wade and preventing activist judges from interfering with state decisions on life by removing abortion from federal court jurisdiction through legislation modeled after his “We the People Act.”

* Defining life as beginning at conception by passing a “Sanctity of Life Act.”

Does either of those proposals represent a plan — "loudly trumpet[ed]" or not — to prosecute women who have abortions? It seems to me that both of these bills are about cutting federal jurisdiction, which would leave the matter of abortion to state courts. Those courts would still be bound by Supreme Court precedent, by the way, although they'd be left to their own devices about following that precedent.

Yglesias makes some good points about the less-than-fully-libertarian quality of Ron Paul's libertarianism. He shouldn't shoot his credibility to hell with statements like "He’s loudly trumpeting his plan to impose criminal penalties on women who terminate their pregnancies."

UPDATE: Yglesias responds to this post:

Ann Althouse chooses for some reason to dispute that Ron “respecting the God-given right to life—for those born and unborn” Paul wants to ban abortion. 

No. I dispute that he has "loudly trumpet[ed a] plan to impose criminal penalties" on women who have abortions. Those are your words, Matt, and it is quite dishonest to change the language as you embark on your attempt to discredit me.

Since she’s apparently incapable of reading between the lines of such proposals as “Defining life as beginning at conception by passing a Sanctity of Life Act’” she might be interesting [sic] in some other quotations from Congressman Paul such as....

Well, the fact is, Matt, I really am interesting. I'm so interesting that you ought to pay attention to the precise words that I use in disputing you. Pay attention to the text before you embark on your flights of interpretation that you gratuitously insult me for supposedly lacking the capacity to perform. Pay attention to my text and to your own text (which needs editing). You ought to learn to read and be honest about what you have read.

Yglesias goes on to quote something Ron Paul said about the fetus being a person. I'm well aware, as my post clearly shows, that Paul believes the fetus is a person who deserves rights. The issue, however is whether he has "loudly trumpet[ed a] plan to impose criminal penalties" on women who have abortions. He has not done that.

Ron Paul's proposals are about diverting the matter to the state courts, as I clearly describe in my post. Now, if you want to say that voters who care about preserving abortion rights should not trust Ron Paul, then I agree with you. But you should agree with me that he most certainly did not "loudly trumpet[ a] plan to impose criminal penalties." Why can't you just fix your misstatement? Why this pointless pigheadedness? You're doing yourself no favors, Matt, and insulting my intelligence — "she’s apparently incapable of reading between the lines" — is — as they say — incivil.

Gingrich gives his opponents a quote to gasp about: "There is no Supreme Court in the American Constitution."

Just a few days ago, I was talking about a certain type of clever remark:

A witty, engaging speaker will say something surprising and counterintuitive, but then flesh it out or add one more point, and then it clicks. Of course, if you have opponents, you've got to anticipate what they'll do with the little slice of what you said that seems head-slappingly idiotic. So it may not be so smart to be smart like that. 

The context was David Plouffe saying "people won’t vote based on the unemployment rate." And now, here comes Newt Gingrich with an even juicier example of the seemingly stupid line that wakes up the audience and draws them in to hear the whole context but that also gives opponents an easy way to use the remark to make you look like an idiot.

Here's the quote, in it's full context (transcribed in a post by Ian Millhiser at Think Progress):

In the American system, if you read the Constitution correctly — this is why I wrote “A Nation Like No Other” — if you read the Federalist Papers correctly, the fact is the Congress can pass a law and can limit the Court’s jurisdiction. It’s written directly in the Constitution. The Federalist Papers, Alexander Hamilton promises, I think it’s Number 78, that the judiciary branch is the weakest of the three branches. There is no Supreme Court in the American Constitution. There’s the court which is the Supreme of the judicial branch, but it’s not supreme over the legislative and executive branch. We now have this entire national elite that wants us to believe that any five lawyers are a Constitutional convention. That is profoundly un-American and profoundly wrong.

It's obvious to me — as a law professor who has studied and taught Article III of the Constitution for 25 years — that Gingrich is not denying that the Constitution provides for a Supreme Court. He's denying the supremacy of that Court over the other branches. He's stressing the checks on the judicial branch, which include Congress's power to make "Exceptions and... Regulations" to the Supreme Court's jurisdiction, and the idea that the Supreme Court is not the sole voice in the interpretation of constitutional law. This is routine stuff in a Conlaw I class. It's what we conventionally talk about along with Marbury v. Madison. It's not the slightest bit edgy, believe me.

Watch the video at the Think Progress link. You can hear the stress on "Supreme" in "There is no Supreme Court in the American Constitution." He knows there's a Supreme Court. It's just not, in fact, supreme over everything. The Supreme Court can strike down statutes and order members of the Executive branch around to a certain extent, but it is also subject to jurisdiction cutbacks, new appointments, impeachment, and constitutional amendments. And the question of what the Constitution really means survives independently of the case law. We are free to argue that the Court got it wrong, to try to get cases overruled, and so forth. And there are many places where the Court hasn't spoken yet or may never speak, in which case there are important responsibilities elsewhere in government for other individuals to say what the Constitution means.

Justices Alito, Scalia, Thomas and the Chief would like you to know that they do care about the privacy of your backyard.

But not when the decisions comes to them on review of a decision by a state intermediate appellate court. I mean, you've got your backyard privacy and they've got their Rule 10. The New Jersey Supreme Court didn't want to talk about it, so they don't want to talk about it.