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‘Obamacare’ Closer to Supreme Court Review After Administration Declines to Appeal Latest Ruling September 28, 2011

Posted by seeineye in : Politics , add a comment

The Obama administration has decided not to ask a federal appeals court in Atlanta for further review of a ruling striking down the centerpiece of President Barack Obama’s sweeping health care overhaul.

The administration’s decision makes it more likely that the U.S. Supreme Court would hear a case on the health care overhaul in the court’s term starting next month, and render its verdict on the law in the midst of the 2012 presidential election campaign.

Justice Department spokeswoman Tracy Schmaler disclosed the administration’s decision. She declined to elaborate on next moves.

The Atlanta circuit ruling sided with 26 states that had sued to stop the law from taking effect. In another case, the 6th U.S. Circuit Court of Appeals in Cincinnati upheld the individual mandate in June.

A three-judge panel of the 4th U.S. Circuit Court of Appeals in Richmond, Va., rejected two lawsuits on technical grounds. In one, it ruled that the penalty for not buying insurance amounts to a tax and that a tax can’t be challenged before it’s collected. In the other, the panel said the plaintiff, the state of Virginia, lacked legal standing to file its lawsuit.

In a ruling in August, a divided three-judge panel of the 11th Circuit Court of Appeals in Atlanta concluded Congress overstepped its authority when lawmakers passed the individual mandate provision that requires people to buy health insurance. The administration could have asked the full 11th circuit court to hear the case, potentially delaying high court review.

The U.S. Circuit Court of Appeals for the District of Columbia, the fourth appeals court to deal with a case over the law, heard oral arguments last Friday but hasn’t issued a ruling.

The Supreme Court is widely expected to have the final say on the law, especially now that the appeals courts that have considered the law have disagreed, and one of them has struck down a key provision.

The real question has been over timing, which has political as well as legal ramifications.

In order to hear and decide the case by late June, when the court wraps up its work until resuming in October, the justices would have to act by January to accept and schedule an appeal.

It typically takes a couple of months or more from the time an appeal is filed at the court until the justices decide whether or not to hear it.

In arguments leading up to the appeals court decision in Atlanta, the Obama administration said the legislative branch was using a “quintessential” power — its constitutional ability to regulate interstate commerce, including the health care industry — when it passed the overhaul law. Administration officials said at the time they were confident the 11th Circuit ruling would not stand.

In that August ruling, Chief Judge Joel Dubina and Circuit Judge Frank Hull said that lawmakers cannot require residents to “enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

In a lengthy dissent, Circuit Judge Stanley Marcus accused the majority of ignoring the “undeniable fact that Congress’ commerce power has grown exponentially over the past two centuries.” He wrote that Congress generally has the constitutional authority to create rules regulating large areas of the national economy.

Court: ‘Don’t Ask, Don’t Tell’ Will Temporarily Stay in Place September 1, 2011

Posted by seeineye in : Politics , add a comment

The military’s “don’t ask, don’t tell” policy is back in place for the time being, with one major caveat: the government is not allowed to investigate, penalize or discharge anyone who is openly gay.

A San Francisco federal appeals court ordered the military to temporarily continue the controversial policy in an order late Friday, the court’s response to a request from the Obama administration.

The order is the latest twist in the legal limbo gay service members have found themselves in as the policy is fought in the courts simultaneous to its slow dismantling by the federal government, which expects to do away with it by later this year.

In its three-page ruling, the U.S. 9th Circuit Court of Appeals said the ruling was based on new information provided by the federal government, including a declaration from Major General Steven A. Hummer, who is leading the effort to repeal the policy.

“In order to provide this court with an opportunity to consider fully the issues presented in the light of these previously undisclosed facts,” the court wrote, that it would uphold an earlier order to keep the policy in place.

The court of appeals had halted “don’t ask, don’t tell” July 6 but the Department of Justice filed an emergency motion Thursday saying ending the policy now would pre-empt the orderly process for rolling it back, per a law signed by President Barack Obama in December.

The ruling was supported by Servicemembers United, an organization of gay and lesbian troops and veterans, but the group’s executive director Alexander Nicholson voiced frustration over the slow process of dismantling “don’t ask, don’t tell.”

“The situation with finally ending this outdated and discriminatory federal policy has become absolutely ridiculous,” said Nicholson. “It is simply not right to put the men and women of our armed forces through this circus any longer.”

The Department of Justice said in a statement that it asked the court to reconsider its order “to avoid short-circuiting the repeal process established by Congress during the final stages of the implementation of the repeal.”

It said senior military leaders are expected to make their decision on certifying repeal within the next few weeks. In the meantime, the Justice Department said “it remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline.”

The Justice Department noted that the Defense Department has discharged only one service member since Congress voted to repeal the policy, and that was done at the request of the service member.

Last year’s ruling by the appeals court stemmed from a lawsuit filed by the Log Cabin Republicans against the Department of Justice.

The gay rights group persuaded U.S. District Court Judge Virginia Phillips to impose a worldwide injunction halting the ban last October, but the appeals court granted the government a stay, saying it wanted to give the military time to implement such a historical change.

The Log Cabin Republicans asked the court Friday to deny the motion, saying “an on-again, off-again status of the District Court’s injunction benefits no one and plays havoc with the constitutional rights of American service members.”

The plaintiff said while only one service member has been discharged since the congressional vote, three others have been approved for discharge by the secretary of the Air Force but the processing of those actions have been “stopped in their tracks” by the court’s order. Granting the stay the government wants would allow it to act on those discharges and also allow it to put recent applicants from gay enlistees in limbo, the group said.

Justice Department attorneys said in their motion Thursday the grounds for keeping the stay in place are even stronger today than they were when this court initially entered the stay, and that disrupting the process set out by Congress would impose “significant immediate harms on the government.”

The chiefs of the military services submitted their recommendations on the repeal to Defense Secretary Leon Panetta last week. As soon as the Pentagon certifies that repealing the ban will have no effect on military readiness, the military has 60 days to implement the repeal, which could happen by September.

Lt. Col. Paul Hackett, a lawyer in the Marine Corps Reserve, said military officials are ready for the change and there is no need for a delay.

“We’re already taking steps to implement it,” he said. “Politicians do what politicians do for whatever their political need is. It’s an election year, so somebody is obviously taken that into consideration. I suspect that’s what driving this.”

Friday’s order lays out a schedule for anticipated objections and motions from both sides: the Log Cabin Republicans have until 5 p.m. Thursday to file opposition to today’s motion, and the federal government has until 5 p.m. the next day to file a reply supporting it.

The court also asks the federal government to explain by close of business Monday why the information on implementation of the Repeal Act wasn’t provided sooner.

On Saturday, a contingent of active-duty troops and veterans are expected to march in San Diego’s gay pride parade.

Former Navy operations specialist Sean Sala is organizing what is believed to be the first military contingent of troops and veterans to lead a gay pride parade.

Sala said the parade group wear T-shirts showing their branch of service. They will walk with two horses — one draped in an American flag and the other with the rainbow-colored Pride flag — to honor service members and those who have died for equality.

Appeals court rejects FCC authority for Net Neutrality April 14, 2010

Posted by seeineye in : Politics , add a comment

by Ed Morrissey

The DC circuit Court of Appeals gave the Obama administration a big dash of cold water on the limits of its authority to impose rules on communications networks today.  In essence, the court recognized Comcast’s property rights to determine its own terms of service for Internet use, and the implications could affect Barack Obama’s plans to mandate broadband expansion as well

A federal appeals court ruled Tuesday that the Federal Communications Commission lacks the authority to require broadband providers to give equal treatment to all Internet traffic flowing over their networks.

The ruling by the U.S. Court of Appeals for the District of Columbia is a big victory for Comcast Corp., the nation’s largest cable company. It had challenged the FCC’s authority to impose so-called “net neutrality” obligations on broadband providers. …

The decision also has serious implications for the massive national broadband plan released by the FCC last month. The FCC needs clear authority to regulate broadband in order to push ahead with some its key recommendations, including a proposal to expand broadband by tapping the federal fund that subsidizes telephone service in poor and rural communities.

The decision was unanimous, and it substantiates a warning from an FCC commissioner who declared the 2008 ruling “unlawful,” as Declan McCullagh reports for CNet:

Because the FCC “has failed to tie its assertion” of regulatory authority to any actual law enacted by Congress, the agency does not have the authority to regulate an Internet provider’s network management practices, wrote Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.

Even though liberal advocacy groups had urged the FCC to take action against Comcast, the agency’s vote to proceed was a narrow 3-2, with the dissenting commissioners predicting at the time that it would not hold up in court. FCC Commissioner Robert McDowell, a Republican, said at the time that the FCC’s ruling was unlawful and the lack of legal authority “is sure to doom this order on appeal.”

Tuesday’s decision could doom one of the signature initiatives of current FCC Chairman Julius Genachowski, a Democrat. Last October, Genachowski announced plans to begin drafting a formal set of Net neutrality rules — even though Congress has not given the agency permission to begin. (Verizon Communications CEO Ivan Seidenberg, for instance, has said that new regulations would stifle innovative technologies like telemedicine.)

In fact, Democrats have been singularly uninterested in pursuing the kind of legislation that the FCC needs to extend its authority.  They certainly campaigned on the issue, and progressives expected action on it in this session of Congress.  Unfortunately, Democrats fumbled the health-care bill so badly that they probably have no time left to consider net neutrality, or for that matter, the stomach for another hard-Left agenda item before the midterm elections.

The lack of jurisdiction may also doom White House plans to dictate broadband expansion.  It doesn’t look promising, although the opinion by Tatel doesn’t appear to completely close the door on the notion.  He writes that the FCC has to show that its attempt to impose “ancillary authority” on a private company’s network-management practices derives from a “reasonably ancillary” part of its overall mandate.  The FCC and the Obama administration may find more solid ground in arguing that expansion of access is “reasonably ancillary” to the FCC’s mission of encouraging the broadest possible reach of American communication services.

This decision does make it clear that the courts are willing to act when executive-branch agencies attempt to arrogate authority and jurisdictions without Congress granting them in law.  That will be useful in this administration.