Immigration

Ariz. Law Backers Have Reason For Hope After Supreme Court Arguments

Sahil Kapur | April 25, 2012, 1:12PM

Arizona SB 1070 boycott immigration

By the end of Wednesday's Supreme Court oral arguments on the constitutionality of Arizona's immigration law, there was renewed hope for the law's backers that at least some aspects of it might survive, although no clear majority emerged one way or another.

Justice Antonin Scalia led the charge among justices inclined to agree with Arizona. He passionately argued that the Constitution provides states the authority to craft immigration policy to protect their borders -- an argument at odds with longstanding precedent.

"What does sovereignty mean if it does not include the ability to defend your borders? The states can police their borders," Scalia said, suggesting that the White House opposes the law because it "does not want [immigration] law enforced rigorously."

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Immigration

Will The Supreme Court Quash Arizona's Immigration Law?

Sahil Kapur | April 23, 2012, 11:57AM

Lest anyone think the Supreme Court is done playing with political dynamite this year: Next up, the Obama administration asks the justices to quash Arizona's immigration law, a measure that has sparked intense protests, boycotts and even rap songs.

The high court will hear oral arguments Wednesday on whether the state's tough law -- which permits police to check people's legal status during lawful encounters, and makes it a crime to look for work without legal status -- passes the constitutional test. Lower courts have sided with the administration and blocked its key provisions.

"This should be an easy case for the federal government," said Adam Winkler, a professor at UCLA School of Law. "Under longstanding precedent, the federal government has plenary authority over immigration. Yet here Arizona has imposed its own view of how immigration law should be enforced."

The core legal question is the extent to which states are empowered to make immigration laws, a turf constitutionally reserved for the federal government. The administration argues that Arizona's law coerces it to take a harder line on undocumented immigrants. Gov. Jan Brewer's legal team frames the statute as an effort to cooperatively assist the federal government in dealing with an immigration system that is widely regarded as broken.

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Paul Clement

How GOP's Lawyer Paul Clement Helped Defend 'Obamacare'

Sahil Kapur | April 5, 2012, 10:57AM

Paul Clement, the lawyer for the Republican-led states challenging "Obamacare," played a key role years ago, when representing the Bush White House, in expanding the same federal power that's now the constitutional basis for the health care reform law. Today his clients have different interests, and the 180-degree flip in his reasoning underscores an inconsistency in Republican views of the Constitution.

As the Bush administration's solicitor general in 2004, Clement argued before the Supreme Court in Gonzales v. Raich that Congress's power to regulate interstate commerce is broad enough to override state laws permitting medical marijuana patients to grow cannabis for personal consumption. Notably, two of the justices he won over in the the 6-3 decision were Anthony Kennedy and Antonin Scalia.

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Health Care

Conservatives Struggle With Key Anti 'Obamacare' Argument

Brian Beutler | March 30, 2012, 5:02AM

Justice Antonin Scalia

For the challengers' constitutional attack against the individual mandate in President Obama's health care law to withstand scrutiny, they need to maintain two key questionable arguments.

The first is the plaintiffs' claim that the law's mandate and the penalty enacted to enforce the mandate are fully distinct. Their challenge depends on the court viewing the mandate as a command, and not part of a more general incentive.

Relatedly, they claim that the command itself is meant to draw non-participants into a market they may not want to enter. For this to fly, they have to contend that the market the government is regulating -- or that Congress intended to regulate -- is the market for health insurance and not the much broader market for health care services.

This has become a central point of contention, and it could be an issue on which the court's decision turns. And yet squaring the challenger's argument with the history and purpose of the health care law presents opponents of the law with a question they've had a very hard time answering.

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Health Care

Inactivity My A$$: Judge Dismisses Key Argument Of Health Care Reform Foes

Brian Beutler | June 9, 2011, 1:14PM

President Barack Obama

Oral arguments are over in the highest profile lawsuit challenging the constitutionality of President Obama's health care reform law. So the new parlor game for observers and stakeholders is identifying key moments from Wednesday's proceeding in Atlanta that indicate where the Eleventh Circuit Court of Appeals may be headed.

The three-judge panel in the case, brought by 26 mostly Republican states and others, posed tough questions to both plaintiffs and defendants and made it clear they found merit in arguments from both sides. But in a brief exchange with plaintiffs' attorney Paul Clement, one of the judges -- Bill Clinton appointee Frank Hull -- dismissed one of health care reform foes' key arguments out of hand.

Specifically, Hull cast aside the plaintiff's claim that by compelling non-participants in the insurance industry to buy health insurance, it regulates "inactivity."

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Birth Certificate

The GOP Reacts: We Never Cared About The Birth Certificate -- But It's About Time Already!

Benjy Sarlin | April 28, 2011, 8:56AM

Former candidate for Vice President Sarah Palin

It's been a full day since the White House released President Obama's long form birth certificate, and prominent Republicans are coalescing around a few recurring notes in their reaction.

Responses for the most part fall into two broad, sometimes overlapping, themes in which Republicans either accuse President Obama of taking too long to put the birther nonsense to bed or suggest he's exploiting the issue by even addressing it.

While speculation around Obama's legitimacy occurs almost exclusively in conservative circles -- reaching a high point in recent weeks amid Donald Trump's birther campaign -- a number of mostly mainstream Republicans characterized Obama's statement as a smokescreen that distracts from various other topics.The most oft-quoted example came from Sarah Palin who tweeted: "Now, don't let the WH distract you w/the birth crt from what Bernanke says today. Stay focused, eh?" referring to a rare press conference from the Federal Reserve chairman.

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Gay Marriage

Behind A Major Law Firm's Decision To Ditch Its Defense Of DOMA

Brian Beutler | April 25, 2011, 5:33PM

When the Atlanta-based law firm King & Spalding announced on April 18 that it would represent the Republican-controlled House of Representatives and defend the constitutionality of the Defense of Marriage Act, it apparently didn't realize what a mess it had made for itself.

Exactly one week later, the firm reversed its decision, prompting a high-profile partner -- former Solicitor General Paul Clement -- to resign publicly, and House Speaker John Boehner's staff to issue a statement criticizing the firm for "its careless disregard for its responsibilities to the House in this constitutional matter."

As public relations debacles go, this was a doozy. But the firm must have calculated that the alternative would have been worse. In the intervening week, a series of public and behind-the-scenes developments made it clear that the firm would suffer recriminations for defending what many of its top clients and future recruits -- not to mention gay rights advocates -- consider to be an anti-gay law.

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Defense Of Marriage Act

Boehner's Lawyer To Charge $520 Per Hour, Up To Half A Million To Defend DOMA

Ryan J. Reilly | April 19, 2011, 1:55PM

House Speaker John Boehner (R-OH) and former United States Solicitor General Paul Clement

Former Bush Solicitor General Paul Clement, the lawyer House Speaker John Boehner (R-OH) chose to support the constitutionality of the Defense of Marriage Act (DOMA) on behalf of Congress, will be paid $520 per hour in taxpayer money up to $500,000, according to a contract his law firm signed with the General Counsel of the House and the House Administration Committee.

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