Wednesday, March 31, 2010

Go Butch Crazy!

I love how fringe conservatives have suddenly become constitutional scholars on health care, while they were silent on the war on terror. (And for the record, the fringe liberals are no worse; they'll cheerfully rake John Yoo over the coals while politely declining to notice that the President Obama has reserved the vast majority of President Bush's most constitutionally questionable polices.)

Both sides (the liberals with Yoo and the conservatives with health care) are making the same ridiculous mistake -- both sides assume that the way to resolve a controversial policy dispute is to constitutionalize the problem. In Idaho, the constitutionalization of the healthcare issue has gotten out of hand.

Enter Exhibit A.

Idaho's Governor Butch Otter (yes, that's really his name) was among the first to grab a pitchfork over the healthcare bill -- in fact, he ordered the Idaho AG to bring a constitutional challenge to the bill before it even passed.

That's fine. I don't think the suit has much merit, but I also doubt Butch's view is so outrageous as to warrant sanction. The courts can work it out, while the Governor beats on his talking points, conservative academics steal some attention, and academics from the other side try to steal it back. That adds up to a pretty normal day in America.

Enter Exhibit B.

It's Otter's next move that puzzles me. His next move has been to spearhead a campaign to pass a 28th Amendment to the United States Constitution, forbidding government-backed healthcare:
The Congress shall make no law requiring citizens of the United States to enroll in, participate in or secure health care insurance or to penalize any citizens who declines to purchase or participate in any health care insurance program.
So, which is it? Is he suing because the bill violates the Constitution? Or, is he proposing an amendment because the bill is valid?

I understand that constitutional rhetoric has political value, but I wish people would think these things through enough to at least assert the same points in the same breath. The healthcare bill is constitutional, or else it is not. I don't think a person can have it both ways . . . even if that person's name does call to mind a sexual ambiguous aquatic mammal.

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17 Comments:

Blogger McWho said...

Well at least an Amendment is the proper way to address the issue. I mean, it would obviously have no chance in hell of passing, but it IS the only real way to legitimately challenge the bill.

3/31/2010 9:46 AM  
Blogger Patrick said...

See, this is what I mean. With all respect, it's NOT the only way to legitimately challenge the bill. It's not even the best way.

Another, and better, way to do so is to challenge it politically - the Congress can always undo the healthcare bill if it chooses.

Is that very likely? No. But it seems to me a whole lot more legitimate than revising the constitution in order to effect a public policy change.

YMMV.

3/31/2010 9:50 AM  
Anonymous Anonymous said...

If people took this view we would never have landmark constitutional cases, we'd have no Bill of Rights and no amendments to the constitution, and the population would probably be in open revolt over having no outlet for their frustration with government policies. Perhaps the problem is that you just don't agree with Governor Butch's position.

Court challenges and amendments are "legitimate" when Mr. Patrick here agrees with them. Everyone else should just deal with it.

3/31/2010 10:07 AM  
Blogger Dan said...

10:07 clearly missed the central point of this post, which was that either a lawsuit or a constitutional amendment would be a "legitimate" challenge to the bill, but proceeding down both routes simultaneously smacks of political puffery.

I am not sure I agree, since lawyers often put forward "in the alternative" arguments. But regardless, 10:07 offers a pretty dumb response.

3/31/2010 10:54 AM  
Blogger Sean said...

I was going to raise that argument in the alternative is perfectly valid, but I see I have been preempted.

Of course, it is rather futile to argue two clearly failing arguments in the alternative. I would think that it is not the making of inconsistent arguments which makes it purely political, but rather being blind to (or willingly disregarding) both arguments' lack of validity which makes it purely political.

3/31/2010 2:53 PM  
Anonymous Anonymous said...

"A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient." Fed. R. Civ. P. 8(d)(2).

"A party may state as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. P. 8(d)(3).

3/31/2010 3:39 PM  
Anonymous Anonymous said...

Good lawyers argue in the alternative. I have no idea whether Butch is a lawyer, but it seems reasonable for a politician to do the same.

If you really want to pick a bone with Otter, it would be over how the hell he expects to get the two-thirds of each house to propose the amendment when 60 senate votes and 220 house votes are for the legislation. Who does he think will vote for the healthcare bill and also for an amendment to make the bill unconstitutional?

I suppose he could get two-thirds of state legislatures to ask Congress to call a constitutional convention (a method that has never been used, by the way). But that seems unlikely, particularly considering that three-quarters of the states would then have to ratify it.

3/31/2010 3:45 PM  
Anonymous Anonymous said...

As an aside, what’s N&B’s take on Yoo calling us all troglodytes? http://blogs.wsj.com/law/2010/03/29/yoo-on-berkeley-a-natural-history-museum-of-the-1960s/

3/31/2010 3:54 PM  
Blogger Sean said...

He didn't call us troglodytes. He said we were pot smoking hippies (Which, for much of the city of Berkeley, is true).

3/31/2010 4:10 PM  
Anonymous Anonymous said...

I <3 Y*o more now.

3/31/2010 4:29 PM  
Blogger McWho said...

He was talking about permanent bezerkely residents. Can you really dispute it?

3/31/2010 9:07 PM  
Anonymous Anonymous said...

Totally unrelated, but this seems like a useful crowd. Has anyone been following the latest with the Westboro Baptist Church stuff?

http://www.cnn.com/2010/CRIME/03/30/westboro.baptist.snyder/index.html

Does anyone understand why Snyder would have to pay for the other side's court costs? What is the deal with this?

4/01/2010 9:15 AM  
Blogger Armen said...

Rule 54 and 28 U.S.C. 1920.

4/01/2010 9:19 AM  
Blogger Sean said...

In re: anon;

Another article on the subject, apparently Bill O'Reilly has agreed to pay the legal fees on Snyder's behalf. http://newsmax.com/InsideCover/oreilly-marine-funeral-protesters/2010/03/30/id/354287

As far as the legal background, cursory searching seems to say that the award of fees was granted pursuant to the Civil Rights Attorney's Fees Award Act of 1976. Armen cites to the section of title 28 which assigns how costs are to be calculated. However, the actual allowance of the award of costs in this case is, I think, governed by 42 USC 1988. Under that section a defendant may be award fees in a civil rights action if the plaintiff's claim is found to be frivolous or unfounded. "Because the judgment attaches tort liability to constitutionally protected speech, the district court erred in declining to award judgment as a matter of law." Snyder v. Phelps, 580 F.3d 206, 226 (4th Cir. 2009). Since the appeal was a First Amendment action it appears that it qualified under that act.

This is all quick searching, so if someone wants to be more thoroughgoing feel free.

4/01/2010 10:45 AM  
Anonymous Anonymous said...

Costs (as opposed to legal fees) are awarded as a matter of course in both the trial courts and on appeal.

This was an award of costs on appeal in a US Court of Appeals, so you look at FRAP (Federal Rules of Appellate Procedure).

Here you go:

FRAP
Rule 39. Costs
(a) Against Whom Assessed.

The following rules apply unless the law provides or the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

Since the judgment was reversed, (3) applies and the appellee (Snyder), has costs taxed against him.

4/01/2010 9:55 PM  
Blogger HerbM said...

"plenty of irony along party lines as conservative types clamor for incorporation and liberal types clamor for state power"

While it is true that Liberal position on the McDonald v. Chicago case is highly iron, hypocritical would actually be more on point, only a naive understanding of the Conservative constitutional values AND of the case issues would lead to this claim.

Conservatives are strong in the belief that at least the enumerated rights require protection from both Federal and State abuse.

The Right to Keep and Bear Arms is not an issue of Fed v. State, but rather government v. the citizen.

No serious conservative believes that States can abridge the right of free speech, freedom of religion, the RKBA or any other enumerated right.

6/27/2010 8:23 PM  
Blogger Patrick said...

Oh, spare me.

6/27/2010 10:10 PM  

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