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On Squi and the 65-Lady Letter

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This is an insight I owe entirely to a reader, BI.

There should be an explanation for why Christine Blasey Ford was (presumably) not invited to be on the 65-lady letter backing Brett Kavanaugh pulled together just as allegations of sexual assault became public.

In spite of the fact that it got entered into the record multiple times in Thursday’s hearing, it already had diminishing value as a measure of Kavanaugh’s character. After Ford’s identity was made public, some of the women who signed the letter grew reluctant to stand by their support publicly.

Five of the women who signed the letter declined to comment when reached by POLITICO following the public revelation of Ford’s identity.

Dozens of others either didn’t respond to POLITICO’s inquiries or could not be reached.

The AP reported that “more than a dozen” stood by the letter after Ford came forward, which is not 65.

More strikingly, one of the signers of the letter, Renate Schroeder Dolphin, upon realizing that she was mocked in the yearbooks of 14 boys, including Kavanaugh, spoke instead about how hurtful his circle of friends was.

This month, Renate Schroeder Dolphin joined 64 other women who, saying they knew Judge Kavanaugh during their high school years, signed a letter to the leaders of the Senate Judiciary Committee, which is weighing Judge Kavanaugh’s nomination. The letter stated that “he has behaved honorably and treated women with respect.”

When Ms. Dolphin signed the Sept. 14 letter, she wasn’t aware of the “Renate” yearbook references on the pages of Judge Kavanaugh and his football teammates.

“I learned about these yearbook pages only a few days ago,” Ms. Dolphin said in a statement to The New York Times. “I don’t know what ‘Renate Alumnus’ actually means. I can’t begin to comprehend what goes through the minds of 17-year-old boys who write such things, but the insinuation is horrible, hurtful and simply untrue. I pray their daughters are never treated this way. I will have no further comment.”

So the letter should not, now, be treated as a validating document.

That said, if Ford was not invited to be on the letter, then it is itself proof that the letter does not reflect the views of all the women who were spending time with Kavanaugh during the summer in question.

Having spoken to some folks who were in these circles at the time, I’m not at all suspicious of the explanation behind how the letter came together immediately after Ford’s allegations — but not her identity — were made public.

It started as a series of phone calls among old high-school friends and ended up embroiling 65 women in the firestorm over a sexual assault allegation that could shape the Supreme Court.

In a matter of hours, they all signed onto a letter rallying behind high court nominee and their high school friend Brett Kavanaugh as someone who “has always treated women with decency and respect.”

I don’t regularly use Facebook. I’m not even in close contact with friends from college (who remain a tight-knit network), much less either of my high schools. But for those who do remain close with friends from their youth, especially on Facebook, such a feat would be easy to do. The network that remains close would easily come up with 65 signers. (For what it’s worth, the one network from my youth where I could be relied on to pipe up this quickly includes at least two men I know raped women in the women in the network.)

But Ford presumably wasn’t invited to be on the letter.

There are several possible explanations why she wouldn’t be, but both discredit the letter itself.

The most plausible is that she simply doesn’t run in those circles anymore. She lives on the west coast, she suffered a trauma associated with this network, she found socializing generally more difficult in the years immediately after the assault, which would have been precisely the period when she might keep up those ties.

That’s all well and good, except testimony in Thursday’s hearing makes clear that — regardless of what happened between Kavanaugh and Ford — she is one of the women who might have insight on his behavior at the time. That’s because both Kavanaugh and Ford each spent a lot of time, individually and (at least according to Ford) together that summer with the guy Ed Whelan falsely accused of the assault, whom I’ll refer to only as Squi.

On 13 occasions, Kavanaugh refers to someone named “Squi” on his calendar. It’s the name that crops up the most. Kavanaugh and Squi, who played on the Georgetown Prep football team with him, went to a Washington Bullets game, to Squi’s house in Rehoboth, to see movies, to the beach. On July 1, Kavanaugh, Judge, PJ, Squi and two others go to “Timmy’s for skis” — an apparent reference to going to a friend’s house for beers (“brewskis”).

[snip]

Ford explained. The shared connection to Kavanaugh was the person who Whelan suggested might be the real culprit.

“How long did you know this person?” Mitchell asked.

“Maybe for— a couple of months we socialized,” Ford replied. “But he also was a member of the same country club, and I knew his younger brother as well.” That was a couple of months prior to the alleged attack, Mitchell clarified.

Mitchell then asked Ford to explain the nature of her relationship with that person.

“He was somebody that, I will use the phrase ‘I went out with,’ ” Ford said, using air quotes. “I wouldn’t say ‘date.’ I would say ‘went out with’ for a few months. That was how we termed it at the time.”

[snip]

Ford, in other words, claims that she had been going out with Squi for months before the alleged incident in the summer of 1982. Kavanaugh’s calendar from that year shows that he spent a lot of time with Squi as well. And Kavanaugh further alleges that he “may” have met Ford but that they “did not travel in the same social circle” and that “she was not a friend, not someone I knew.”

Ford went out with Squi (though earlier than the assault, it sounds like), and Kavanaugh spent tons of time with him. If you want to know how Kavanaugh and his buddies treated women that summer, you’d want to ask the women who were dating his buddies. But the letter signers apparently didn’t ask Ford.

Which means they asked a sample of women who remain close whether Kavanaugh treated women well, not the sample that might be best situated to attest to how he treated women that summer. (It’s also possible that Kavanaugh treated the girls from Georgetown Prep’s sister Catholic schools differently than they treated girls from other schools, though the letter includes women who attended both Catholic and non-Catholic schools.)

Of course, there’s a more nefarious possibility, the counterpart to the nefarious possibility that Ed Whelan targeted Squi precisely because he had learned who Ford was before her name became public and knew her connection to Kavanaugh went through Squi and knew that by falsely accusing Squi (who signed the male letter of support for Kavanaugh but has since gotten furious at being falsely accused of assault), he would discredit a key piece of evidence showing that Kavanaugh did travel in the same circles as Ford. That nefarious counterpart possibility is that enough women heard of the attempted rape at the time, knew which woman had been victimized, and so when calling around for supporters, avoided Ford.

The former is the more likely explanation: that the circle of women who — before knowing Ford’s identity, at least — were willing to make a show of a support for a powerful man who was about to become even more powerful, self-selected for those remain close to those who did have positive experiences with this crowd back in the day.

But if it is indeed true that Ford was not asked to sign, then it cannot be considered the proper sample to understand how Kavanaugh was treating women that summer.

The Record Supports Christine Blasey Ford

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This may sound counterintuitive. But the Republican-led whitewash hearing into allegations that Brett Kavanaugh assaulted Christine Blasey Ford actually ended up supporting her case, not Kavanaugh’s.

Ford withstood Rachel Mitchell’s interrogation

As bmaz noted, the Republicans hired a skirt: Maricopa sex crimes prosecutor Rachel Mitchell.

Mitchell conducted all of the questioning — save one impetuous outburst from Lindsey Graham — of Ford. And Mitchell tried diligently to challenge Ford’s account. She started by asking Ford to review all her statements and correct and inconsistencies in her past statements, something she did not do thoroughly with Kavanaugh. She then challenged Ford’s story in a few places, first by shadowing the Ed Whelan theory that the house in question must belong to the parents of Kavanaugh’s doppelganger, Chris Garrett (later testimony would make clear Garrett was how Ford first got introduced to the Kavanaugh crowd); Ford dismissed that by answering that the house in question might be in a broader area. Mitchell tried to suggest that Ford’s symptoms — including PTSD and anxiety — might come from other reasons; but because this is Ford’s academic expertise, Ford swatted those away with science. Mitchell made much of the fact that Ford declined to travel to DC in spite of her dislike of air travel, even though she travels for a yearly family visit and vacations. Mitchell also tried to insinuate that some political actors either coached her or paid for Ford’s polygraph, but Ford’s lawyers pointed out they had paid for it, as is the norm. And Ford’s own timeline simply didn’t support the claim she was politically coached. Mitchell invented a claim, out of an indistinct claim by Ford, that she had wanted to keep her testimony confidential up until the original hearing. In the end, Mitchell got Ford to admit — relying on her expertise — that five minute sessions like this hearing weren’t the best way to get the truth from victims of trauma, which would seem to support a longer investigation, not the kind of hearing Mitchell had been paid to star in.

Ford withstood all those questions with grace (and the timely intervention of her attorneys).

Kavanaugh spent 45 minutes ranting like a belligerent drunk

Chuck Grassley unwisely let each witness take as much time as they wanted for opening statements.

After Ford took a normal amount of time, Kavanaugh, bidding for Trump’s support, took a full 45 minutes for his statement.

His statement was delivered shrilly, with an angry red face, just short of screaming. Coming after hours of testimony he was sometimes a violent drunk, Kavanaugh looked during his statement like the drunk you avoid in the parking lot of a bar, because it’s just not worthwhile human interaction. I don’t rule out him drinking while watching Ford’s testimony, nor did others.

In short, Kavanaugh looked like a guy who could not manage rage, just as numerous witnesses had described him being as as a drunk.

The Mark Judge Safeway timing suggests a late June/early July assault

One reason Ford repeatedly said she’d like an FBI interview is because she assumed that if she could date an exchange she had with Mark Judge after her assault, she might be able to narrow down when the actual event occurred. Republicans want to avoid having Judge’s public comments about drunken debauchery in the time period reviewed by any credible questioner.

Judge has written about that in his book, describing working at the local Safeway for a few weeks to pay for Football camp.

According to Kavanaugh’s calendar, football camp started on August 23 that year.

Ford testified that her exchange with Judge took place 6 to 8 weeks after the incident.

Ford: We had always been friendly with one another. I wouldn’t characterize him as not friendly. He looked ill. Says it happened 6-8 weeks after the incident.

If Judge was working for the few weeks prior to Football camp to pay for it and his and Kavanaugh’s exchange with Ford happened 6 to 8  weeks earlier, that would put the assault in early July.

That would mean this entry, for an event on Thursday, July 1, 1982, in Kavanaugh’s calendar would be solidly within that range.

The Republicans fire their prosecutor after she corroborates Ford’s story

And Kavanaugh’s testimony actually supports Ford.

Start with the claim, in his opening rant, that he usually only drank on weekends. That makes no sense because Judge’s book about the period describes being dysfunctionally hungover routinely while he worked at the Potomac Safeway to earn money for Football camp.

Kavanaugh claims this had to be a weekend bc they all worked. But Judge said he routinely went to work badly hungover.

Then Mitchell started questioning Kavanaugh. She started by asking him to review the definition of sexual assault, as she asked Ford to do. Kavanaugh got a weird set to his lips.

Shortly thereafter, she turned to his calendar, getting him to confirm that he wrote everything in there. In her next round, Mitchell’s first questions were about the July 1 entry. After filibustering about the earlier workout session (about which he wasn’t asked), Kavanaugh admitted that the entry showed he got together at Tim Gaudet’s —  with Mark Judge and PJ Smith — and Chris Garrett, whose nickname is Squi.

In other words, Kavanaugh confirmed he was at a small gathering with the boys Ford said were there, as well as the guy who had introduced her to these boys.

Durbin’s questioning followed, after which Lindsey Graham took over questioning from Mitchell and went on a tear, calling it an unethical sham. Having gotten Kavanaugh to identify a get-together that matched Ford’s description, Mitchell was done questioning for the day.

Effectively, the GOP hired a prosecutor to question a victim, but decided the alleged perpetrator could not withstand the same prosecutor’s questions as soon as she had him identify a get-together that resembled the one described by Ford.

Kavanaugh thrice stopped short of denying being a blackout drunk

One problem with Kavanaugh’s testimony is that he and his alleged accomplice, Mark Judge, are reported to be blackout drunks. Judge even wrote a book admitting to the fact. So Kavanaugh went to some lengths trying to avoid admitting that he had ever blacked out, even while he admitted, “I like beer,” over and over.

The first came, in her first round, when Mitchell asked Kavanaugh what he considered too many beers.

Mitchell: What do you consider to be too many beers?

Kav: I don’t know, whatever the chart says.

[snip]

Mitchell: Have you ever passed out from drinking?

Kav: Passed out would be no, but I’ve gone to sleep. I’ve never blacked out. That’s the allegation, and that’s wrong.

That’s when Republican Senators started to look worried. They gave Kavanaugh one of his three lifeline breaks.

Kavanaugh repeatedly dismissed his freshman roommate’s claim that he was a shy man who became belligerent after drinking by pointing to the squabble that one freshman roommate had with another, as if the normal animus between freshman roommates makes the observation of one invalid.

Finally, Blumenthal raised an incident from college that Kavanaugh had admitted he didn’t recall, only to have Kavanaugh insist he remembered all of it.

Let me ask you this. In a speech that you gave, you described, quote, falling out of the bus onto the front steps of the Yale Law School, at 4:45 AM.

Kavanaugh interrupted to try to prevent Blumenthal from finishing the quote.

The quote ends that you tried to piece things back together, end quote, to recall what happened that night. Meaning?

I know what happened. I know what happened that night.

The appellate court judge actually didn’t claim that he remembered it, just that he knows what happened.

Kavanaugh refuses to call Mark Judge

As a reminder, Ford alleges that Brett Kavanaugh tried to rape her in the presence of admitted dead drunk Mark Judge. Republicans refused to call Judge over and over.

Then Kavanaugh refused to answer questions about Judge’s own accounts of the period. In response to a question from Patrick Leahy about whether he was the drunk described as Bart O’Kavanaugh in Judge’s book, Kavanaugh refused to answer.

3rd Q: Are you Bart O’Kavanaugh.

Kav: not answering.

Kav finally says, “you’d have to ask him.” Which is the point.

Blumenthal noted to Kavanaugh that Judge’s statement was just six cursory and conclusory sentences signed by Judge’s lawyer, not a sworn statement.

So here’s what we saw yesterday: Christine Blasey Ford was unflappable and consistent. By comparison, Kavanaugh — at least in his statement — appeared to be precisely what he denied he was. His denials that he was a blackout drunk (and therefore that he assaulted Ford but didn’t remember it) were not credible and stopped well short of supporting his claim. And his own calendar, and the Republicans own prosecutor, identified a get-together that matches the time and attendees identified by Ford.

The GOP tried to set up a whitewash of this evidence. But instead, it failed, and they were left with screaming men.

And that won’t stop them from voting out his nomination.

Three Things: CRC—What? An Indictment, Plus Shut Downs Ahead

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[NB: As always, check the byline. / ~Rayne]

Brett Kavanaugh’s nomination and confirmation process is an 800-pound gorilla in the media, as is the potential for the obstructive removal of Rod Rosenstein as Deputy Attorney General. They suck up enormous amounts of mental wattage, sitting wherever they want to sit.

Here are three things which are in some way related and worth more of our attention, whatever is left after the gorillas are done with it.

~ 3 ~

CRC: One degree from Manafort

Thomas Fine went prowling around FARA filings, landing this juicy find (pdf):

Yes, Creative Response Concepts, Inc., the same firm for which Ed Whelan has worked, registered in 2005 as a foreign agent for Viktor Yanukovych — the same Yanukovych for which Paul Manafort also worked as an illegal foreign agent. CRC was paid $10,000 by Potomac Communications Group, for which Aleksei Kiselev worked. Kiselev also worked for Paul Manafort to assist Yanukovych.

What a small, small world.

Should note CRC’s registration was after the fact — they were contracted for April-October 2003. Why so late?

(Thanks to @JamesFourM for the PCG-Kiselev-Manafort link.)

~ 2 ~

Indictment yesterday related to Trump Towers…in Azerbaijan

Didn’t see this until late last night: DOJ indicted Kemal “Kevin” Oksuz (pdf) on one count of hiding or falsifying material facts and four counts of making false statements to the U.S. House of Representatives Committee on Ethics. The filings were related to a Congressional trip to Azerbaijan ultimately paid for by State Oil Company of Azerbaijan Republic (SOCAR), the wholly state-owned national oil and gas company of Azerbaijan.

Oksuz is now a fugitive.

Ten members of Congress and 32 staffers traveled in 2013 to attend a U.S.-Azerbaijan convention in Baku after Azerbaijan had asked Congress for an exemption from sanctions on Iran for a $28 billion natural gas pipeline project. The members and staffers were later cleared as it appeared they believed the trip’s funding was provided by Oksuz’s nonprofit organization.

Personally, I think those members and staffers needed a rebuke. Nonprofits don’t print money; they rely on money from donors. Follow the money to the donors before accepting a trip and incidentals. It’s not rocket science.

Worth keeping in mind the Trump International Hotel & Tower built in Baku, overseen by Ivanka Trump, which burned in late April this year — an amazing two fires, same day. What are the odds?

~ 1 ~

Shutdowns Ahead: U.S.-Canada and U.S. Government?

Doesn’t look like negotiations between the U.S. and Canada are going to make this Saturday’s deadline. No idea what will happen after that. We all know the Trump administration has been at fault; how could anybody screw up a long-term peaceful relationship like U.S.-Canada, our second largest trading partner after China, without deliberate bad faith? Without the intent to screw over another NATO member’s economy?

And the U.S. government itself faces a budget deadline. If the “minibus” budget bill isn’t signed by midnight this coming Sunday we’re looking at a shutdown and it appears the bottleneck may be Trump. The jerks at Breitbart are fomenting to encourage a shutdown by insisting Trump refuse to sign the bill — they’re just plain malicious, thinking not at all about the impact on fellow Americans or the economy.

Putin must be laughing his ass off at how easily the GOP’s white nationalist base has subverted U.S. and NATO stability by giving up control to a mobbed-up, golf-addicted, attention-deficient wig.

~ 0 ~

Don’t miss Marcy’s interview on Democracy Now in which she talks about Rod Rosenstein’s status and the Kavanaugh confirmation process.

Treat this like an open thread — have at it.

p.s. A note on site operations: Please be sure to use the same username and email address each time you log into the site. It makes it easier for community members to get to know you. Deliberate sockpuppeting is not permitted.

The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

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The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively Read more →

ACA at SCOTUS: Some Thoughts On The Mandate

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As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more →

The OTHER 2002 Jay Bybee Opinion

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The WaPo reports that the Obama Administration might be impeded from filing a suit against the AZ anti-immigrant law because of a 2002 Jay Bybee Memo holding that local police have the authority to detain people for both civil and criminal violations of Federal immigration law. It pitches the story as the Obama Administration being constrained by a Bush Administration reversal of a Clinton Administration position.

In the legal battle over Arizona’s new immigration law, an ironic subtext has emerged: whether a Bush-era legal opinion complicates a potential Obama administration lawsuit against Arizona.

[snip]

The 2002 opinion, known as the “inherent authority” memo, reversed a 1996 Office of Legal Counsel opinion from the Clinton administration. “This Office’s 1996 advice that federal law precludes state police from arresting aliens on the basis of civil deportability was mistaken,” says the 2002 memo, which was released publicly in redacted form in 2005 after civil rights groups sued to obtain it.

Though that doesn’t account for the fact that the 2002 opinion not only explicitly reverses that 1996 memo, but also dismissed doubts raised in 1989 in an OLC memo authored by Douglas Kmiec.

Indeed, the only contrary suggestion [as to whether local police can enforce federal statutes] of which we are aware is contained in a footnote in a 1989 opinion of this Office. In that footnote, after stating that “it is not clear under current law that local police may enforce non-criminal federal statutes” and tbat any exercise of authority granted under state law “would necessarily have to be consistent with federal authority” we opined that “unlike the authorization for state and local involvement in federal criminal law enforcement, we know of no similar authorization in the in the non-criminal context.” Memorandum for Joseph R. Davis, Assistant Director, Federal Bureau of Investigation, from Douglas W. Kmiec, Assistant Attorney GeneraI, Office of Legal Counsel, Re: Handling of INS Warrants of Deportation in relation to NCIC Wanted Person File at 4 & n.11 (Apr. 11. 1989) (“1989 OLC Opinion”) (emphasis added).

Why does Poppy Bush hate W?

In any case, the WaPo’s discussion does ignore Eric Holder’s suggestion in an exchange with Judy Chu last week (from around 2:54:40 to 2:56:25) that DOJ is considering the 2002 OLC opinion in its larger review of the Arizona law.

REP. CHU: Well, in 1996, the Office of Legal Counsel concluded that the state and local police lacked legal authority to detain individuals solely on the suspicion of being in the country illegally; however, in 2002, Assistant Attorney General Jay Bybee, issued an Office of Legal Counsel memorandum concluding that federal law did not preempt state police from arresting aliens on the basis of civil deportability.

Have you officially asked the Office of Legal Counsel to review this policy?

MR. HOLDER: Not as yet, but the part — as we go through our review, one of the things that has to be taken into account is the 2002 opinion that you referenced, its continued viability, whether it is a correct assessment of the law, that is all a part of what our review team will be — is in fact, looking at.

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