Last August, Judge Royce Lamberth, a Reagan-appointed trial judge in DC, suspended all federal funding for embryonic stem cell (ESC) research — a decision which limits such research in a way that even President George W. Bush found untenable. Today, a divided D.C. Circuit panel reversed Lamberth’s decision:

Two scientists brought this suit to enjoin the National Institutes of Health from funding research using human embryonic stem cells (ESCs) pursuant to the NIH’s 2009 Guidelines. The district court granted their motion for a preliminary injunction, concluding they were likely to succeed in showing the Guidelines violated the Dickey-Wicker Amendment, an appropriations rider that bars federal funding for research in which a human embryo is destroyed. We conclude the plaintiffs are unlikely to prevail because Dickey-Wicker is ambiguous and the NIH seems reasonably to have concluded that, although Dickey-Wicker bars funding for the destructive act of deriving an ESC from an embryo, it does not prohibit funding a research project in which an ESC will be used.

To translate this a little, Lamberth held that all federally-funded ESC funding violates the Dickey-Wicker Amendment, which prohibits the use of federal funds for “research in which a human embryo or embryos are destroyed.” Even though no federal money goes to studies that actually destroy an embryo, Lamberth concluded that such research requires scientists to build upon previous research that involved the destruction of an embryo, and that this is not allowed.

Lamberth’s decision, however, cannot be squared with Supreme Court precedent. Under the Supreme Court’s decision in Chevron v. NRDC, judges are normally supposed to defer to an agency’s reading of a federal law unless the agency’s interpretation is entirely implausible, and the Obama administration quite plausibly read the Dickey-Wicker Amendment to only prohibit federal funding of the actual destruction of an embryo — not federal funding of subsequent ESC research. Accordingly, the court of appeals reversed.

Today’s decision is a very hopeful sign that Lamberth’s questionable understanding of this law will no longer undermine stem cell research. Both of the judges who joined today’s majority opinion are conservative Republican appointees. Judge Douglas Ginsburg is a hardcore tenther who once called for a return to an Depression-era vision of the Constitution that struck down child labor laws and other very basic legal protections. Judge Thomas Griffith was appointed by George W. Bush.

Their decision did leave open a slight possibility that Lamberth could try to suspend stem cell research once again. The appeals court expressly decided not to weigh on two alternative claims by the plaintiffs, including a claim that federal ESC funding is illegal “research in which a human embryo or embryos are . . . knowingly subjected to risk of injury or death,” because these claims were not first considered by the court below. Nevertheless, the appeals court made clear that “the plaintiffs have not identified, nor have we found, any precedent for upholding a preliminary injunction based upon a legal theory not embraced by the district court.”

So it appears very likely, if not entirely certain, that stem cell research will ultimately be upheld against all challenges.

For almost two years now, ThinkProgress and the Wonk Room have tracked tentherism, the widespread conservative belief that pretty much everything the federal government does is unconstitutional. Hardcore tenthers believe, among other things, that because the Constitution does not mention education, federal education programs such as Pell Grants, federal student loans and grants for low-income students are all forbidden. At a town hall meeting earlier this week, Rep. Blake Farenthold (R-TX) laid out a kind of “tentherism-lite.” Under Farenthold’s misguided view of the Constitution, Congress is still allowed to spend money on education, but they can’t make sure that the money is being spent wisely:

My broad general principle is that if you read the Constitution of the United States, it doesn’t talk about education, which to me means our founding fathers intended to leave it to the states. . . . In a perfect world, I would turn [all federal education funding] back to the states with some block grants.

Needless to say, Farenthold’s creative theory of the Constitution bears little resemblance to the actual text of the document. Article I of the Constitution provides that “[t]he Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States.” Broadly speaking, this empowers Congress in two ways. Congress may spend directly to benefit the general welfare, as it does with programs like Medicare or Social Security, but it can also offer grants to the states which require the state to accept certain conditions if they take the money. Thus, for example, Congress requires states that accept federal Medicaid funding to actually spend that money on health care for the poor, and if a state doesn’t want to comply with this condition they can turn down the funds.

The same rule applies to federal education funds. Texas has the right to turn down federal education funding, but it does not have the right to simply take free money and thumb its nose at any conditions that come with it. Farenthold, however, seems to believe that Texas can have its cake and eat it too — that national leaders are allowed to fund education, they just can’t have any control over this funding.

On it’s surface, this may appear to be a more moderate position that full-bore tentherism, but it would undoubtedly lead to the end of all federal/state partnerships such as federal education grants or even Medicaid. If Congress isn’t allowed to place any conditions on the money that it gives the states, then it isn’t even allowed to tell Texas that it has to spend federal Medicaid grants on health care for poor people and not on hats for Gov. Rick Perry’s wife.

It’s worth noting that Farenthold’s position is so radical that it was even rejected by Judge Roger Vinson, the Tea Party judge who released an opinion striking down the Affordable Care Act with at least 40 separate factual and legal errors, and who has continuously defied the Constitution and binding Supreme Court precedent in order to do the Tea Party’s bidding.

Imagine that your cell phone company cheated you out of just $30. Would you sue? Bear in mind that filing a lawsuit will require you to spend hour upon hour filing out forms and drafting complaints and dealing with legal codes that you probably know little about. Of course you can always hire a lawyer, but your lawyer’s hourly fee will eat up all of the $30 you stand to win in just a few minutes. In other words, you, like just about everyone else in the world who is scammed out of just a few dollars, you will probably give the lawsuit a pass.

Fortunately, there is a solution to this problem — the class action lawsuit. If your cell phone company cheated you and you alone, you’re out of luck. But if they systematically scammed thousands of their customers out of the same $30 — nickel and diming their way to huge profits — the law allows all of you to join together into a class action lawsuit and make sure that the company is held accountable.

That is, of course, until today.

Today, in a 5-4 opinion by Justice Scalia, the Supreme Court effectively eliminated all consumer class actions and left corporate America free to cheat every single one of their customers a few dollars at a time.  Scalia’s opinion in AT&T Mobility v. Concepcion permits corporations to refuse to do business with anyone who refuses to sign away their right to bring a class action lawsuit if the corporation breaks the law. After Concepcion, it is only a matter of time before nearly every credit card provider, cell phone company, mail-order business or even every potential employer requires anyone who wants to do business with them to first give up their right to file a class action.

As an added bonus, Concepcion also expands an abusive practice known as “forced arbitration” that allows corporations to force their consumers, workers and patients to sign away their right to sue the company in a real court. As the Wonk Room previously explained:

In the 1980s, the justices started to rewrite a 60-year old law enacted to allow sophisticated merchants to arbitrate their disputes in fair and neutral forums — creating an abusive practice known as “forced arbitration.”  Before many banks, cell phone companies, employers, or even nursing homes will do business with a consumer, worker, or patient they force that individual to sign away their right to sue the company in a real court, requiring that any disputes be brought in a secretive, privatized arbitration system that overwhelming favors corporate parties. Moreover, as Stephanie [Mencimer] explains, the Court has made it nearly impossible to escape forced arbitration:

The court has issued a string of recent rulings upholding the right of corporations to do an array of things under the guise of arbitration clauses. Most recently, in Rent-a-Center West v. Jackson, the court ruled that companies can even write arbitration clauses that force employees who think the provision is illegal to ask an arbitrator, not a judge, to make that determination. In effect, an aggrieved employee could be in the absurd situation of having to ask an arbitrator whether hiring the arbitrator is unfair.

Today’s decision leaves millions of Americans powerless to fight back if corporate America decides to very slowly bleed them dry.

Prop. 8 Judge Vaughn Walker

It’s only Tuesday, but this week has already been a terrible one for anti-gay supporters of marriage discrimination. Yesterday, the high-dollar law firm Speaker John Boehner hired — at taxpayer expense — to defend the unconstitutional Defense of Marriage Act dropped the case after several of the firm’s major clients balked at its lawyers’ decision to defend discrimination. Meanwhile, Don’t Ask/Don’t Tell is about to become a nasty memory, and California’s anti-gay Proposition 8 hangs by a thread after now-retired federal Judge Vaughn Walker held it to be unconstitutional.

Yet, as the wheels rapidly spin off their anti-gay bus, marriage equality’s opponents are turning to more and more desperate tactics to try to prevent gay Americans from receiving their constitutional right to “equal protection of the laws.” Their latest ploy is a motion seeking to retroactively force Judge Walker off the Prop 8 case because Walker may secretly be harboring a hidden desire to someday marry someone at some unspecified point in the future:

At no point prior to the entry of judgment did Chief Judge Walker disclose that he is in a now 10-year long, committed same-sex relationship. And he has yet to disclose whether he has any interest in marrying his partner should the injunction he issued be upheld on appeal. . . . [B]ecause Chief Judge Walker has not disclosed whether he and his partner have any interest in marrying, let alone unequivocally disavowed such an interest, it must be presumed that he has a disqualifying interest under Subsection 455(b)(4). For only such an unequivocal disavowal would negate the strong inference, arising from his acknowledged longterm, committed relationship and his findings in this case concerning the benefits of marriage for same-sex couples, that he has a personal interest in exercising the federal constitutional right he recognized to marry a same-sex partner should the injunction he issued be affirmed.

In essence, Prop 8′s proponents speculate that, because Walker could possibly want to marry his partner someday, we must presume that he intended to marry him while he was presiding over this case. After all, Walker did not go out of his way to profess that he has no interest in marrying the person that he is with.

But it would be completely absurd to require a judge to recuse himself from deciding a case because of speculation about what he may someday want to do. Justices Ginsburg, Sotomayor and Kagan have never “unequivocally disavowed” a future desire to work at Wal-Mart, but that certainly does not forbid them from hearing a major gender discrimination case against that corporation. African-American Justice Clarence Thomas has never “unequivocally disavowed” any desire to stay in a hotel in the once-segregated south — indeed, it is likely that he has previously done so — but that does not prevent him from hearing a case challenging the ban on race discrimination by hotels. Speculative fears that a judge may, at some undetermined date in the future, take advantage of a law that is now before their court cannot be the basis of a recusal.

Ironically, if a court were to accept the anti-gay group’s arguments, it would also follow that no judge who is presently in a committed opposite-sex relationship would be allowed to hear this case either. The name of the organization defending Prop 8 is “Protect Marriage,” a name that derives from their bizarre belief that same-sex marriages are destructive to opposite-sex marriages. But if this were true, than straight judges would have a personal stake in ensuring that their own marriages are not undermined by a decision striking down Prop 8 — and thus would also be required to recuse.

It is difficult to imagine any court wandering down a path that would prevent female judges from hearing gender claims, black judges from hearing race claims, and married judges from hearing cases involving the scope of the marriage right. Prop 8′s supporters are grasping at straws.

Last year, the Wonk Room reported on the Obama Administration’s bizarre choice to ask the Supreme Court to eliminate an important backstop that would prevent future administrations from undoing the EPA’s slow but ongoing efforts to reduce global warming. As Lyle Denniston explains, there is literally seven centuries of precedent allowing individuals to sue to prevent another from using their property in a way that causes harm. Moreover, ever since a 1907 Supreme Court decision required Tennessee copper companies to reduce emissions that were damaging Georgia farmers’ crops, states have been empowered to sue harmful emitters under a legal theory known as “nuisance.”

Yet when several states sued a group of polluters to discourage them from damaging the entire planet by releasing greenhouse emissions, the Obama Administration not only sided with the polluters, it argued in the Supreme Court today that polluters should effectively be shielded from judicial attempts to rein in global warming:

DOJ, however, makes two claims why nuisance law should not apply here.  Their less troubling argument is that, because EPA has started to regulate greenhouse emissions after President Obama took office, these EPA regulations “displace” federal nuisance law.  Under this line of reasoning, if a future administration were to lift Obama-era regulations protecting against climate change, federal nuisance law would remain as a backstop to prevent emitters from being completely unchecked.

DOJ’s second argument creates a much bigger problem.  Under this argument, the states lack “standing” to assert a federal nuisance claim altogether.  Should this reasoning be adopted by the courts, federal nuisance law would no longer provide a backstop against emissions, and it would no longer serve as a deterrent to prevent conservatives from gutting environmental regulations.

In essence, current law establishes that the courts can be a check on polluters unless the EPA steps up and regulates them itself. The Administration’s first argument is consistent with existing law, and would ensure that the courts could continue to act as a backstop if a future EPA fails to regulate greenhouse gasses.

But the Administration also argued that courts shouldn’t allow states to invoke this backstop in the first place. If the Supreme Court adopts this reasoning, the Earth will lose an important safeguard against an EPA captured by big industry.

Fortunately, the justices seemed much more moved by the Administrations first argument today than by its second argument, but it is nonetheless distressing that DOJ would even raise a legal argument which could undermine much of the Obama Administration’s slow but ongoing work to protect the planet from global warming.

Earlier this year, the U.S. Census Bureau released figures that support predications that Latinos will soon outnumber whites in Texas. Latinos already make up 38 percent of the state’s population and two-thirds of the state’s 4.3 million population increase over the last ten years. The Texas State Data Center projects that Latinos will become the majority in the state over the next decade.

The dramatic demographic transformation has sparked a redistricting war in Texas that has culminated in a lawsuit brought against Gov. Rick Perry (R-TX) and the state of Texas filed on behalf of the Mexican American Legislative Caucus (MALC). The Latino lawmakers allege that current redistricting activities are based on a flawed and discriminatory undercount of the Latino population. Courthouse News reports:

The Caucus says Texas’ unfair 2011 redistricting plan was based on faulty 2010 Census data that “severely undercounts Latinos,” especially in poor areas along the Texas-Mexican border: “Cameron, Hidalgo, Starr, Webb and El Paso Counties, as well as urban areas in Dallas and Houston.” It says the “2010 Census process and procedures resulted in substantial omissions in Latino population.”

It claims that Census Bureau was aware that “people in poor urban communities are harder to count, as are people who live in poor suburban unincorporated subdivisions primarily located along the Texas-Mexican border and often referred to as ‘colonias.’” [...] The Caucus claims that “after promoting and advertising and educating the community in these counties of the use of the ‘mail-out, mail-in’ counting strategy the Census Bureau announced on the day the Census was to commence that this strategy would not be employed for the ‘colonias.’” As a result, Latinos along the state’s border were undercounted by 4 to 8 percent, the Caucus claims.

MALC’s lawsuit was reportedly filed just as Hidalgo county officials were preparing their own litigation against the U.S. Census Bureau. Hidalgo County Judge Ramon Garcia claims that the final county census tally was short by as many as 250,000 people, which could result in $300 million to $400 million in lost federal funding for education, health care and infrastructure.

Ultimately, a Census undercount may not be the only legal issue at play. State Rep. Robert Alonzo (D) reminds the Republican-controlled state that “The reason for us being here is to remind them that if they don’t do it the right way now, it’s going to be done the right way in courts.” The Voting Rights Act of 1965 requires Texas, along with eight other southern states with a history of voter discrimination, to obtain federal approval of any new voter district map.

Alonzo would like to see four new Latino majority districts. The Mexican American Legal Defense and Education Fund (MALDEF) has presented a redistricting plan that would create nine new Latino districts. Yet, the map being debated in the House Redistricting Committee is simply designed to elect a strong majority of Republicans and adds only one new Latino district in the Corpus Christi area.

Obviously, there are a lot of competing interests in play here. The Mount Pleasant Daily Tribune points out that the map was met with a “backlash of protests from conservative Republicans who feel they are being shut out, and, of course, from Tea Partiers who say the proposals are unfair; from the Hispanic community who say they feel the maps ignore the state’s dramatic growth in the Hispanic population since the last Census count, and even the Asian communities.”

Nonetheless, it’s hard to believe that the creation of only one new Latino district in a state where Latinos are driving population growth and will soon be the majority amounts to anything short of Republican gerrymandering. Rather than trying to rig Texas’ voting districts, the Republican Party may be better off rethinking the policy positions that threaten its vitality in a Latino-majority state.

Yesterday, a Senate subcommittee investigating Wall Street’s role in the recent financial collapse released a massive, 639-page report documenting the role mortgage lenders, investment bankers, and insufficient regulatory checks on Wall Street played in creating America’s worst economic disaster since the Great Depression. But this congressional investigation could lead to much more public scrutiny into one of Wall Street’s biggest players. In a statement announcing the report’s findings, subcommittee chair Sen. Carl Levin (D-MI) suggested that Goldman Sachs could face criminal charges:

Sen. Carl Levin (D-Mich.) said on Wednesday that he plans to refer Goldman officials, and potentially officials from other organizations, to the Justice Department for possible prosecution and to the Securities and Exchange Commission for possible civil proceedings.

“In my judgment, Goldman clearly misled their clients and they misled the Congress,” said Levin, the chairman of the Senate Permanent Subcommittee on Investigations. [...]

Levin said prosecutors should look at not only Goldman’s statements to the public about its investment products, but also the statements officials made to Congress. Goldman officials, including chief executive Lloyd Blankfein, gave testimony that was “inaccurate,” Levin said. It is a crime under federal law to make a false statement to Congress or to obstruct congressional proceedings.

Levin’s investigation drew headlines after he grilled a top Goldman executive for continuing to push investors to purchase an investment that Goldman described as a “shitty deal” in its internal emails. As the Levin report explains, Goldman’s management “sent out numerous sales directives or ‘axes’ to the Goldman sales force, stressing that [selling the shitty deal] was a priority for the firm.”

This deal was just one example of Goldman “profit[ing] from the failure of many of the…securities it had underwritten and sold.” As the report explains, Goldman frequently touted securities that it expected to fail to outside investors, and then bet against those securities by taking a “short position” on them. In total, Goldman “generated net revenues of $3.7 billion” by betting against securities, while their alleged victims were left with an investment that was worth only a fraction of what they paid for it.

Earlier this year, freshman Sen. Ron Johnson (R-WI) was one of eight senators who signed a letter promising to place a hold on any bill that does not comply with comply with five very broad criteria. Yesterday, in his maiden speech on the Senate floor, Johnson went even further — implying that America would be better off if every single senator had the power to unilaterally veto legislation:

The genius of our Founding Fathers’ vision was rooted in their recognition that more often than not, government was something to fear. Government necessarily limited individual freedom, and therefore, government itself must be limited; its potential for growth, highly constrained. During America’s first century, this vision was largely upheld. The last century, however, has been an entirely different story.

In 1902, the federal government spent 2% of the nation’s gross domestic product. State and local governments spent 5%. Government was close to the governed. The size, scope, and cost of the federal government was constrained by the Constitution’s enumerated powers. . . . Th[e Senate] played a key role in limiting federal government expansion. Debate in the Senate was unlimited. The cloture vote did not exist. . . . All that changed in the 20^th century’s second decade. The Senate adopted the cloture vote, and America adopted the 16^th Amendment.

Watch it:

“Cloture” is the only procedure which can be used to break a single senator’s filibuster of a bill. So when Johnson pines for the days when the cloture rule did not exist, he appears to be suggesting that each of the Senate’s 100 members — even Sen. Mike Lee (R-UT), who opposes child labor laws, FEMA, food stamps, the FDA, Medicaid, income assistance for the poor, Medicare and Social Security — should have the authority to unilaterally veto any legislation they want.

Johnson’s nostalgia for 1902 is even more bizarre. In 1902, the average annual income was less than $17,000 a year and average life expectancy was 47 years. So in Ron Johnson’s paradise, most Americans didn’t need a federal retirement program like Social Security or Medicare because they were almost certainly dead before they reached retirement age.

In fairness to Johnson, he does indicate later in his speech that post-1902 legislation addressed “real problems” like monopolies — so he probably would not roll back every single one of the laws that Congress enacted in the last 103 years. Indeed, it’s doubtful that he could succeed in repealing just one law under the any-senator-can-veto rule that he appears to endorse in his speech.

For all of the fringe theorizing that our president was not born in the United States, one fact remains about his election in 2008: seven in ten adult Americans did not vote for Barack Obama. And Obama’s 30 percent far surpassed the vote percentages of his predecessors: Bush (28 percent and 25 percent), Clinton (24 percent twice), and Bush Sr. (27 percent). Indeed, even in an election that many considered the most important in their lifetime, nearly 100 million voting-age Americans skipped the ballot box in 2008.

A chief reason why people don’t vote is quite simple: they aren’t registered. Indeed, while approximately 57 percent of voting-eligible adults cast their ballots in 2008, turnout among those who were registered to vote topped 70 percent. In 2006, the disparity was even more pronounced: turnout was 20 points higher for eligible adult citizens who were registered to vote compared to those who weren’t. Yet more than 40 states bar their citizens from registering on Election Day; many states require citizens to register a month before an election.

One way in which states are trying to combat low voter turnout is by allowing citizens to register to vote online. Currently, most states require voter registration forms to be submitted in hard copy. However, 11 states across the ideological spectrum have opted to permit residents to register via the Internet. These states include:

- Alaska
- Arizona
- California*
- Colorado
- Indiana
- Kansas
- Louisiana
- Nevada (Clark County only)
- Oregon
- Utah
- Washington

Numerous other states have also introduced legislation to enable online voter registration, including Hawaii, Nebraska, Maryland, and Mississippi.

Erin Ferns Lee of Project Vote lays out the benefits of online voter registration:

Electronic registration is purportedly cost-effective: in Maricopa County, Arizona, for example, an electronic application reportedly costs about $0.03, compared to $0.83 per paper registration. With only 77 percent of voting eligible Americans registered to vote in 2008, online voter registration may be a welcome reform, particularly for young Americans who are simultaneously the most likely to have Internet access (88%) but least likely to be registered to vote (61%), according to a 2009 Project Vote memo by consultant, Jody Herman.

The Pew Center on the States also studied Arizona and Washington’s experiences with online voter registration during the 2008 election. They found that online registration boosted younger voters, a group that has traditionally exhibited low turnout. In addition, Pew found that the system increased voter list accuracy, streamlined the process for government officials, and enjoyed overwhelming public support.

Citizens are already permitted to pay taxes and register for Selective Service online; barring voter registration from the Web makes little sense. Indeed, modernizing our voter registration methods is nothing new. In 1993, President Clinton signed the National Voter Registration Act (popularly known as the “Motor Voter Act”) which allowed for voter registration at government agencies like the DMV. Eighteen years later, it is time for more states to take the next step and update their registration systems by allowing for online voter registration.

Thanks to Erin Ferns Lee of Project Vote for research assistance.

*- California is projected to implement online voter registration in 2012. The legislation has passed, but it will not go into effect until the state complies with the 2002 Help America Vote Act’s statewide voter registration database provision.

Last month, when amicus briefs supporting the Affordable Care Act were due in the Fourth Circuit, the law garnered a massive 18 briefs rejecting Virginia Attorney General Ken Cuccinelli’s (R) meritless challenge to the law. Moreover, these briefs were dominated by organizations such as the American Hospital Association, the American Cancer Society, the American Nurses Association and the American Academy of Pediatrics with tremendous expertise in health care and health policy.

Last night, amicus briefs opposing the Affordable Care Act were due, and the results are far less impressive. The fifteen briefs opposing the law were filed mostly by conservative think tanks, GOP elected officials and Republican-aligned lobbying groups. Only two health care organizations, a single hospital association and a right-wing doctors’ advocacy group which likens the Affordable Care Act to “Hitler,” sided against the ACA.

Perhaps the most striking thing about the many amicus briefs is that the ACA’s opponents appear to be having trouble finding people who are actually willing to sign their name to a brief. Three times as many legal scholars joined the pro-ACA side. More than three dozen economists, including three Nobel Prize winners, support the ACA — and their voices go unanswered by the law’s opponents. Even advocacy groups on the right are massively outweighed by groups supporting the ACA: