Sunday, August 24, 2014


On August 22 for SCOTUSblog Lyle Denniston wrote an in-depth article on divining the will of the Supreme Court in regards to certain types of same-sex marriage:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so.

Just as a refresher, the Supreme Court upheld the stay for the 4th Circuit and the 10th Circuit, but has allowed marriage to proceed in Pennsylvania and Oregon based on the logic put forward in Hollingworth.On the face it does appear to be a bit of a mix signal. The article goes on to say:

The Court had been urged, by all sides in the Virginia case, to speed up the process of finding a case for review by turning a simple request for delay into an actual, formal petition — a move that could have cut short several procedural steps, and set up the Virginia case as a prime candidate for review.

The Court silently refused the suggestion, simply delaying things in Virginia until after a county clerk actually files a petition for review, in the usual form and on the usual timetable.  That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy.

Obviously it would be nice if the Supreme Court would speed up the process, yet it is the Supreme Court. Perhaps the entire circumstance can best be summed by the sentence, "That was a clear sign that the Court was doing its best to act as if it were business as usual, even on this hot constitutional controversy."

Is a grant of review a certainty in coming months?  There is never a sufficiently strong advance signal to predict that.

In a weird way this article tells us everything and nothing. I do not find it unusual for the the Supreme Court to resist from being pushed into doing anything. And as for giving signals, the Supreme Court is notoriously leak-proof. 

There are two issues that emerge after reading the article: will the court even take up the issue and its significance; and why is there such a sense of urgency around this issue.

After reading the article, it is apparent that certiorari is not guaranteed. Due to the massive number of federal cases that have moved in the last year, it is tempting to say the Supreme Court will act; even though as Mr. Denniston has pointed out, marriage equality is a "hot constitutional controversy."

Though it is unlikely, what would it mean if the Court were to deny certiorari? The practical effect is that all the jurisdiction where marriage equality has been acted on by a court, but where a stay is in place, same-sex marriage will be legal. So if certiorari were denied tomorrow, the map would look like the following:

Same Sex Marriage Map August 2014

86.4% of American would live in a state with marriage equality. 

Denial of certiorari would probably be the greatest failing of the Robert's Court. It has been 47 years since Loving v. Virginia and now is the time. I mean for fuck-sake, Felons in prison have a constitutional right for 26 years when the Court granted it in Turner v. Safley, 482 U.S. 78 (1987). Felons before gays... felons, you know the people who can't vote because the have done bad things, people segregated from the rest of the population and locked away because they have done terrible things. They can get married. So, yah, if they don't act fuck 'em.

Addressing the second question, the urgency of the issue comes from the opposing sides, each with their own motivations.  The marriage opponents want the Supreme Court to put a quick end to the spread of marriage equality. The longer lower courts are able to issue pro-equality rulings, the more jurisdictions will issue pro-equality rulings.

For the marriage supporters, it is an issue of cruel fact that every minute of life counts. According to the CDC in 2011 In the US there were 2515458 deaths. Based on the controversially low CDC figure, 1.6% of the population is gay. Currently 43.5% of the US population lives in a state where same-sex marriage is currently available (places where gays can walk on down to the county clerk and actually get married.)

Therefore, around 62 gay people die each day unable to get married, or around 22,740 per year.

This year, two prominent women in the equality movement died. In March, Vernita Gray, who married Pat Ewert in Illinois, unfortunately passed away. While earlier this month, Fredia Hurdle, who was among the Plaintiffs in the Pennsylvania case, passed away unexpectedly before she could marry her partner of 24 years. My morbid point is that everyday for a large number of Americans, our rights come too late.

Liam '14

Sunday, August 17, 2014

To Sue the President (Part III)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I, Part II

I think it is important to start the deeper analysis by focusing on the question of whether or not an Article III Court can even hear a possible lawsuit by the House of Representatives against the President.

But what of the alternative of suing the president? First, someone with a definite legal grievance against the president, who can show that the president’s actions have actually caused that person (or that organization) some injury, must be available to file the lawsuit.  Second, the courts must be willing to allow themselves to be drawn into the middle of a dispute between the other two branches of the federal government, and must have the power to actually resolve that dispute in a specific constitutional way. Suing a president – that is, the mere fact of filing a lawsuit – is much easier than getting articles of impeachment approved by the House.  But succeeding in such a lawsuit is another matter.

Mr. Denniston [1] rightfully points out that in civil litigation one must always point to some form of injury. I cannot stress this enough. Injury is the foundation of law. Without injury, there is no need for adjudication. The first question that the court needs to be answered is if the elements of a lawsuit have been satisfied.

The problem insofar as analyzing this avenue is that as of this moment the House of Representatives has not put forward a Cause of Action. So we do not know what precisely the House is suing over, which makes it difficult to say with certainty if the elements have been met.

The second point of the article is referring to the Political Question Doctrine, which I find to be just as interesting as the first issue. It is also the area that I want to examine further in depth.

Federal courts will refuse to hear a case if they find it presents a political question.  This phrase is construed narrowly, and it does not stop courts from hearing cases about controversial issues like abortion, or politically important topics like campaign finance.  Rather, the Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government.  Baker v Carr, 369 U.S. 186 (1962). Therefore, the Court has held that the conduct of foreign relations is the sole responsibility of the executive branch, and cases challenging the way the executive is using that power present political questions. Oetjen v. Central Leather Co., 246 U.S. 297 (1918). Similarly, the Court has held that lawsuits challenging congress' procedure for impeachment proceedings present political questions.  Nixon v. United States, 506 U.S. 224 (1993).

So essentially if the Constitution makes a subject the sole responsibility of  one branch of the government, they cannot be sued by the other in an Article III Court. (A bit of topic, but this is one of the reasons the Constitution establishes impeachment proceedings.And as in Nixon v. United States, Article III Courts cannot hear questions to impeachment proceedings.)

While we still run into the same issues as before, in that the House Representatives has not put forward a Cause of Action, the H. Res. 676 does provide enough guidance to discuss the basics of subject matter jurisdiction.

As anticipated before I read the article by Mr. Denniston, in the next article I will be covering Baker v Carr, 369 U.S. 186 (1962).

Liam '14

Click here for Part IPart II


[1] Here is the biography of Lyle Denniston as provided by SCOTUSblog, "Lyle Denniston has been covering the Supreme Court for fifty-six years. In that time, he has covered one-quarter of all of the Justices ever to sit, and he has reported on the entire careers on the bench of ten of the Justices. He has been a journalist of the law for sixty-six years, beginning that career at the Otoe County Courthouse in Nebraska City, Nebraska, in the fall of 1948. He is not an attorney."

Sunday, August 10, 2014

To Sue the President (Part II)

This is the second part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part I.Part III

In this article I will be reviewing H. Res.676

On July 30, 2014 H. Res. 676 passed the House of Representatives with a vote of 225 - 201, near completely down party lines.It was introduced on July 22, by Pete Sessions of Texas.

The text of the resolution reads as following:

H. Res. 676
In the House of Representatives, U. S.,
July 30, 2014. 

    Resolved, That the Speaker is authorized to initiate or intervene in one or more civil actions on behalf of the House of Representatives in a Federal court of competent jurisdiction to seek any appropriate relief regarding the failure of the President, the head of any department or agency, or any other officer or employee of the executive branch, to act in a manner consistent with that official's duties under the Constitution and laws of the United States with respect to implementation of any provision of the Patient Protection and Affordable Care Act, title I or subtitle B of title II of the Health Care and Education Reconciliation Act of 2010, including any amendment made by such provision, or any other related provision of law, including a failure to implement any such provision.
    Sec. 2.  The Speaker shall notify the House of Representatives of a decision to initiate or intervene in any civil action pursuant to this resolution.
    Sec. 3. (a) The Office of the General Counsel of the House of Representatives, at the direction of the Speaker, shall represent the House in any civil action initiated, or in which the House intervenes, pursuant to this resolution, and may employ the services of outside counsel and other experts for this purpose.
    (b) The chair of the Committee on House Administration shall cause to be printed in the Congressional Record a statement setting forth the aggregate amounts expended by the Office of General Counsel on outside counsel and other experts pursuant to subsection (a) on a quarterly basis. Such statement shall be submitted for printing not more than 30 days after the expiration of each such period.

There are several interesting issues that creep up in the Resolution. It sets forth that the scope of the civil action is limited to portions of the ACA including action for failing to implement a provision. It also also for multiple actions against the Executive Branch. So the lawsuit(s) is because the President either enforced or didn't enforce the ACA, or both? Ach Nee!

The Office of the General Counsel of the House of Representatives will represent the House, but the resolution allows for the services of outside counsel. How they will pay for outside counsel is at this point anyone's guess. Perhaps they will raise taxes or borrow from China.

So if Speaker Boehner elects to go forward with a lawsuit (or several) based upon the Resolution, we still do not know what he is suing over. There is no Cause of Action with in the Resolution which is highly problematic. There must be a reason for bring forward litigation. The House voted to sue the President without a Cause of Action. It's not good enough to say "we don't like Obama, and we don't like the ACA; therefore lawsuit." It just doesn't fucking work that way.

It frustratingly stupid. It's kind of like if a grad student submitted a midterm paper that was lacking a coherent thesis paragraph... but this is more important. Perhaps it's more like submitting your tax filings but instead of numbers there are emoticons. And damn near every Republican signed off on it.

Hahahahahahahahahahaaaaaaaaaaaahahah stupid bastards....There are also no end dates so if a Republican President is ever in office and fails to implement the ACA or a section thereof and the Democrats regain the house. Wham!

The lack of a Cause of Action in the Resolution does not mean a lawsuit will automatically fail; it is the just an exemplar of how disreputable the 113th House Leadership is.

Liam '14

Part I.Part III

Sunday Morning Slander

.... I just don't know what to write as this story is flat out infuriating. It somehow manage to push out a story about an AG who is "gratified" that a gay couple cannot get divorced, because a court ruled they weren't married by that state's definition of marriage. It also pushed out a story about a former CEO who was booted  from his corporation essentially for not going along with a scheme to drain the company of all of its resources while cutting labor costs and raising prices on consumers.

So yes, this one is special. And from Florida, of course.

Mary Elizabeth Williams of Slate did a fantastic job putting all the information together (in order spare the family any possible further grief I have removed their names):

[...] was only 42 years old when he died last month, after grappling for four years with the rare disease amyloidosis. His family, including his mother [...] wanted him to be remembered at the family church in Florida where she was baptized. But the day before the service, [the mother] was standing at her son’s casket during his wake when she got word from New Hope Missionary Baptist Church in Tampa. She says they told her that would be “blasphemous” to proceed with the funeral and that they were canceling it – because [the deceased] was gay.

Just to clarify and not that it really matters; however amyloidosis, which regularly appeared as a possible solution to nearly every disease on the show House, is a autoimmune disorder (or more specifically a group of disorders) that causes an excess build up of certain type of protein in the bone marrow. It can lead to attacks on the heart, kidneys, liver, spleen, nervous system and digestive tract, possibly leading to organ failure and death. Carry on:

New Hope’s pastor, T.W. Jenkins, says he only learned that [the deceased] was gay when congregation members saw a mention of the man’s surviving husband in his obituary — and called Jenkins to complain. [The deceased] and his husband [...] were together for 17 years before they married in Maryland last year.

I struggle to think of anything less classy. I know the tale of Antigone is not Christian in origin, but denying funeral rites is the kind of bullshit that led previous cultures to fear divine wrath. As a man who is not religious, even I understand the thought process which would lead one to believe in divine judgement against someone denying funeral rites. It takes a particularly heartless and terrible human being to refuse a basic level of compassion to the grieving and a utter lack of empathy bordering on psychopathic. From my experience funerals are about the living, not the dead. Respect the feelings of the living. 

And once again, way to go T.W. Jenkins, you stupid, ignorant fuckhead. You have managed to reduce a man's life down to a sexual act, which apparently is his only defining feature. Let's ignore the fact he had been with the love of his life for over 17 years. Let's ignore the obvious grieving of family torn by tragedy. Let's ignore every quality that made him a human being, because he had sex with a man. T.W. Jenkins you are loathsome piece of shit.

I'm tired of this shit. It makes me feel awful writing this. I wish the family well and offer any condolence that I can, which may is no where near enough. 

Liam '14

To Sue the President (Part I)

This is the first Part of an on going series in which I will cover the lawsuit initiated by the House of Representatives again President Obama.

Click here for Part II.

In this article I will layout my objectives for the series. I will be covering the legislation passed by the House of Representatives, case law from previous lawsuits against a sitting president, the various documents submitted to the court, and any court proceedings that may occur.

I will also make a greater effort than normal to reach out to other sources for legal opinion on the topic.

From the start of the series I do not believe that a lawsuit will succeed against the President; however, I do want to take this more seriously that what what the circus show deserves, and if I discover a legitimate cause of action, I will acknowledge it. 

From what I currently understand of the situation, the biggest part of the debate is whether or not an Article III court has subject matter jurisdiction to hear the lawsuit in first place. If the court does not have jurisdiction to hear the case, there will be roughly seven more articles to this series. The House Resolution, 3 Court Cases, Cause of Action, A Response, and then a Court Order. So yeah, around seven. Obviously if the Court accepts the suit it will be a longer series.

I will also try to make as few Boehner/Boner jokes as I possibly can and will also limit myself from calling Speaker Boehner, John of Orange, to a minimum.

Liam '14

Part II, Part III