Courts come through with back-to-back-to-back Home Runs

Townhall.com ^ | August 21, 2011 | Bob Beauprez

[Kaslin]

The various courts and activist judges across America certainly give us plenty to fret about, but in just the last few weeks three separate federal courts rendered decisions to give conservatives plenty to cheer about and give the Obama Administration and the "progressive" left a bad case of heart burn. All three decisions have enormous ramifications and strike a blow for freedom and common-sense, so we think that qualifies as the Good News for the month of August.

Here's a rundown of the cases and decisions:

1.    The 11th Circuit Court of Appeals found that the insurance mandate in ObamaCare is unconstitutional. With unmistakable clarity, the Court called the requirement a "wholly novel and potentially unbounded assertion of congressional authority." Agreeing with the 26 Republican state attorneys general and governors who filled the challenge, the judges wrote in their decision, "We are unable to conceive of any product whose purchase Congress could not mandate under this line of argument." The decision is the first by a Court of Appeals to rule against any provision of the legislation. Previously, the 6th Circuit in Cincinnati upheld the legislation, and a decision is expected any day out of the 4th Circuit in Richmond, Va. The split decisions from lower courts virtually guarantee that the Supreme Court will ultimately decided the constitutionality of ObamaCare.

2.    For the second time in six weeks, U.S. District Judge Nancy Freudenthal of Wyoming has slapped Interior Secretary Ken Salazar with a stinging defeat for violating existing federal law relative to issuance of drilling permits. In her most recent decision, Freudenthal found Salazar in violation of the expedited drilling provisions of the Energy Policy Act of 2005. Those provisions streamlined the approval process when minimal environmental impact was obvious as in the case of multiple directionally drilled wells from the same surface pad. In late June, Freudenthal found Salazar in violation of the Mineral Leasing Act. Interior had gone through the process of identifying federal land appropriate for energy development, held lease auctions, identified the highest bidder, and collected the money, but failed to issue permits within 60 days of payment as the law requires. In some cases Salazar sat on permits for years.

3.     It what has been called "A major victory for Arizona women" the Arizona Court of Appeals upheld the state's 2009 Abortion Consent Act signed into law by Governor Jan Brewer. Planned Parenthood of Arizona challenged the Act and lost on all counts. The unanimous decision of a three judge panel overturns an injunction previously imposed by a Maricopa County Superior Judge and allows the provisions of the law to go into effect which require a notarized parental signature before an abortion can be performed on a minor, women will be provided with full and accurate information by a doctor in person at least 24 hours before an abortion, medical professionals cannot be forced to perform abortions if it contradicts their religious or moral beliefs (conscience protection), and non-doctors will not be permitted to perform surgical abortions.

[yldstrk]

Good.

[oldbrowser]

The worm is turning.

[Steely Tom]

They ignore court decisions that inconvenience them.

[Issaquahking]

Good news on a Sunday morning!

[struggle]

Jail Salazar for contempt. Now.

[libertylover]

No doubt Obamacare is unconstitutional but I still fear they'll rule only against the part of forced purchase and leave the rest, leaving it to be paid for with taxes in the usual form. This would actually put the Marxists closer to their real goal of a single-payer system.

[Boxsford]

It’s my understanding that if the individual mandate
is struck down then a good part, if not all, would not stand because
the individual mandate is supposed to fund
much of obamacare. I hope this is the case.

[Oceander]

It’s my understanding that if the individual mandate is struck down then a good part, if not all, would not stand because the individual mandate is supposed to fund much of obamacare. I hope this is the case.

It's not so much that the rest of it would fall legally - it'd still be there in the U.S. Code in all its "glory;" however, as a practical matter that is largely true because, without the individual mandate, the entire edifice quickly becomes utterly unstable and unsustainable.

[Thom Pain]

"...the Supreme Court will ultimately decided the constitutionality of ObamaCare."

By the time "ultimately" comes around it will be too late. It will be impossible to unf*ck this thing.

Why not an injunction to stop this beast until it can be adjudicated?

[kushnejz]

But my understanding was that since Congress intentionally or inadvertently did not include a severibility clause in the Obamacare act, that the whole law would go down if the mandate was determined to be unconstitutional. Of course it falls apart because of the finances without the mandate but I thought this was considered a fatal error in the event of an unconstitutional finding on one of its provisions. I was hoping this appeals court would sort that out also.

[trebb]

It’s my understanding that if the individual mandate is struck down then a good part, if not all, would not stand because the individual mandate is supposed to fund much of obamacare. I hope this is the case.

One can hope it would sit idle before going into death throes - I hate to imagine the additional "other revenue type taxes" it would entail. Makes it all the more important to retain the House and take the Senate.

[Bloody Sam Roberts]

ObamaCare contains no severance clause. That is the fatal flaw. If any part of it is ruled unconstitutional, the whole thing is thrown out. That is our ace in the hole. Whether the courts see it that way remains to be seen.

The U.S. Appeals Court for the 11th Circuit ruled 2 to 1 that Congress exceeded its authority by requiring Americans to buy coverage but it unanimously reversed a lower court decision that threw out the entire law.

It will fall to the Supreme Court to kill the thing or not.

[Haddit]

Keep telling yourself that, it makes life so much easier

Just August:

Judge apologizes to inmate seeking sex-change
Boston Herald ^ | 8/18/11 | Boston Herald
http://bostonherald.com/news/regional/view/20110818conflict_of_interest_allegations_in_merrimack_case/srvc=home&position=recent

Murder charge tossed in case of bones in backpack
WRAL ^ | August 16, 2011
http://www.wral.com/news/local/story/10004288/

Appeals Court Rules Fannie/Freddie Docs Can be Kept Secret
Breitbart Big Government ^ | Aug 15th 2011 at 9:42 am | Tom Fitton
http://biggovernment.com/tfitton/2011/08/15/appeals-court-rules-fanniefreddie-docs-can-be-kept-secret/

9th Circuit: University Can Force Christian Groups Open to Non-Christians
Christianity Today ^ | 8’5’11 | Morgan Feddes
http://www.christianitytoday.com/ct/2011/augustweb-only/christiangroupsopen.html

Court rules state can’t ban sex offenders from nursing homes
patriotledger.com ^ | 08/07/2011 | Kyle Cheney

Court suspends dismantling of redevelopment agencies
San Francisco Chronicle ^ | 8/11/11 | Marisa Lagos, Chronicle Staff Writer
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/08/11/BAJU1KMBCQ.DTL&tsp=1

Court: Wis. can’t deny transgender inmates therapy
Associated Press ^ | August 5, 2011
http://hosted.ap.org/dynamic/stories/U/US_TRANSGENDER_INMATES?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT&CTIME=2011-08-05-17-11-18

Judge blocks Kan. law defunding Planned Parenthood
Associated Press ^ | August 1, 2011 | ROXANA HEGEMAN

[kushnejz]

It may not contain the clause, but the Appeals Court apparently ignored the fatal flaw. Why?

[Bloody Sam Roberts]

It may not contain the clause, but the Appeals Court apparently ignored the fatal flaw. Why?

Well, the majority decision from the 11th Circuit opened with these words that pretty much explain the 'why';

We start with the settled premise that severability is fundamentally rooted in a respect for separation of powers and notions of judicial restraint . . . courts must “strive to salvage” acts of Congress by severing any constitutionally infirm provisions “while leaving the remainder intact.”

That is what they used as a premise to negate Vinson's view that the individual mandate being unconstitutional, invalidates the whole thing.

In the end, The Supremes may just rule similarly.
As noted further in the 11th Circuits decision;

"The Supreme Court’s test for severability is well-established: “Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as law.”

In other words, can the law stand on its own if the unconstitutional part is removed? When it comes to ObamaCare, the 11th Circuit said 'yes'...the Act could stand on its own without the individual mandate.

I'm sure there will be much debate about that.

[hinckley buzzard]

Well, the reality seems to be that without the individual mandate the bill lacks funding sufficient to put the rest into play. With a GOP House the prospect of raising taxes to fund the rest of obamacare is dim. We may get enough breathing room from this to see us through 2012 and possible rescue at the polls. All the more reason why it is imperative that obama is severed from the government.