Herman Cain kicked off his campaign last week by lecturing the country on its need to “reread the Constitution” — even though Cain himself couldn’t tell the difference between the Constitution and the Declaration of Independence. Sadly, this does not appear to be an isolated incident. Last October on his radio show, Cain launched into a impassioned rant about how federal bankruptcy law violates the Constitution:

All of the talk about a national foreclosure freeze . . . all they’re trying to do is appeal to people’s emotions. You see, the United States federal government, folks, has no jurisdiction over bankruptcy law. States do!

So, if some states decide that they want to investigate some of these phony or incomplete foreclosures, it’s up to the states. This is not even under the jurisdiction of the federal government! But it sounds good. It really sounds good, though.

Watch it:

Once again, Cain really should try reading our founding document before he lectures others about it. According to Article I of the Constitution, “[t]he Congress shall have power . . . [t]o establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.” So the Constitution actually says the exact opposite of what Cain claims it says, because Congress power to make “uniform” bankruptcy laws prevents the states from creating their own rules for bankruptcy.

Or, to put it another way, claiming that helping foreclosure victims is unconstitutional may “sound good” to Cain’s right-wing supporters, but it has no basis whatsoever in the actual Constitution.

The police are not allowed to stop someone for no reason, but there is a longstanding rule establishing that the police can stop someone for one reason even if they really hope to find evidence of something else. If the cops stop you for driving with a busted tail light but they secret hope to catch you with cocaine, you cannot challenge your drug bust in court on the grounds that the cops’ original reason for stopping you was based on a pretext. So long as they are allowed to stop you for the busted tail light, they can arrest you on any lawful grounds they discover during the course of that stop.

Today, the Supreme Court extended this rule to so-called “material witness” warrants. Federal law authorizes judges to “order the arrest of [a] person” whose testimony “is material in a criminal proceeding . . . if it is shown that it may become impracticable to secure the presence of the person by subpoena.” Invoking this law, former Attorney General John Ashcroft allegedly detained a man named Abdullah al-Kidd under false pretenses:

The complaint alleges that, in the aftermath of the September 11 terrorist attacks, Ashcroft authorized federal prosecutors and law enforcement officials to use the material-witness statute to detain individuals with suspected ties to terrorist organizations. It is alleged that federal officials had no intention of calling most of these individuals as witnesses, and that they were detained, at Ashcroft’s direction, because federal officials suspected them of supporting terrorism but lacked sufficient evidence to charge them with a crime.

It is alleged that this pretextual detention policy led to the material-witness arrest of al-Kidd, a native-born United States citizen. FBI agents apprehended him in March 2003 as he checked in for a flight to Saudi Arabia.Two days earlier, federal officials had informed a Magistrate Judge that, if al-Kidd boarded his flight, they believed information “crucial” to the prosecution of Sami Omar al-Hussayen would be lost. Al-Kidd re-mained in federal custody for 16 days and on supervised release until al-Hussayen’s trial concluded 14 months later. Prosecutors never called him as a witness.

Today’s decision holds that “an objectively reasonable arrest and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as unconstitutional on the basis of allegations that the arresting authority had an improper motive.” In other words, if Ashcroft could legally detain al-Kidd as a material witness, it does not matter if the former attorney general had a nefarious reason for doing so.

Interestingly, Justice Kennedy, joined by Justices Ginsburg, Breyer and Sotomayor, filed a concurring opinion questioning whether Ashcroft did indeed have the legal authority to declare al-Kidd a material witness in the first place. Because Justice Kagan was recused, it is possible that she could provide the key fifth vote in a later case to limit law enforcement’s authority under the material witness statute.

Sixth Circuit Judge Jeffrey Sutton

Tomorrow, the Sixth Circuit will become the second appeals court to consider a constitutional challenge to the Affordable Care Act’s provision requiring most Americans to either carry insurance or pay slightly more income taxes. The three judge panel hearing tomorrow’s case includes Judge Boyce Martin, a reliably progressive vote, and Judge Jeffrey Sutton, a hardline conservative with a long history of states rights and GOP activism. In other words, the result in this case could come down to the panel’s third member, an obscure trial judge named James Graham with far less of a record on constitutional issues.

Despite this ideologically divided panel, the court has hinted strongly that it will dismiss the case without considering the merits at all. Here are five possible outcomes for this case, ordered from the narrowest resolution to the most sweeping:

• Case Dismissed as Moot

No one is allowed to sue to strike down a law simply because they don’t like it; any plaintiff must first show that the law has actually injured them in some way. In this case, the district court permitted the case to move forward because one of the plaintiffs alleged that they were currently rearranging their finances to be able to afford insurance when the law goes into effect in 2014, thus this plaintiff has somehow been injured by the ACA’s insurance tax even though this provision hasn’t even gone into effect yet. Last week, however, the plaintiffs’ attorneys alerted the court that she decided to go ahead and purchase insurance seven months ago — long before she can credibly blame the ACA for causing her to become insured. DOJ almost immediately moved the court to dismiss the case as moot because there is no longer a plaintiff who is actually subject to the law.

If the court grants DOJ’s motion, which seems likely, it will be interesting to see whether they also levy some harsh words or even a threat of sanctions against the plaintiffs’ attorneys. Nearly two dozen briefs were filed in this case, and each judges’ chambers has probably been burning the midnight oil for weeks to prepare for this very high-profile case. If the attorneys knew that their client had mooted the case months ago but they failed to inform the court until many, many hours of work later, the judges will not be amused.

• Case Dismissed as Premature — Standing or Ripeness
  

Because the plaintiffs challenge a law that doesn’t take effect until 2014, it is not entirely clear that they — or anyone else for that matter — has been harmed in any way by the ACA. The court previously asked the parties to file additional briefs focusing on whether the plaintiffs need to pack up their legal briefs and come back in a few years when the ACA has taken full effect, which is a strong indication that the court may dismiss the case on these grounds. A decision on these “standing” or “ripeness” grounds would be significantly broader than decision dismissing the case as moot, because a standing or ripeness decision would likely shut down all ACA litigation until 2014 or later, while a mootness decision might allow other cases to move forward.

• Case Dismissed as Premature — Tax Anti-Injunction Act

The Fourth Circuit recently noted that a similar case may need to be dismissed because of the Tax Anti-Injunction Act which forbids a court from “restraining the assessment or collection of any tax,” although it does permit courts to order the government to refund a taxpayer who has already paid a tax. Because no one has actually paid a tax that doesn’t take effect until 2014, court could dismiss the case on these grounds.

• Facial vs. As-Applied Challenges

The Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim that the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. In order to bring a facial challenge, however, a party must show that “no set of circumstances exists under which the Act would be valid.”

In this case, the plaintiffs claim that because they have decided not to take a particular action — buying health insurance — they are somehow immune from federal commercial regulation. However, even if the court were to accept this exceedingly questionable theory, it is not actually the case that every single person in the country has not at some point participated in the health insurance market. Accordingly, the court could require all challenges to the ACA to be brought on an as-applied basis, drastically limiting the potential impact of these lawsuits.

• Reach the Merits

Perhaps the least likely outcome in this case, in light of the court’s repeated requests for the parties to brief procedural issues, is that the court will actually reach the merits. Judge Sutton, who is widely perceived as actively campaigning for a seat on the Supreme Court, is likely to be especially uninterested in deciding a constitutional question that will either guarantee that Senate Democrats would prevent him from being confirmed or that Republicans would never nominate him in the first place.

ThinkProgress is thrilled to announce the launch of ThinkProgress Justice, our new blog focusing on the courts, the Constitution, and the increased role litigation plays in shaping policy.

More and more often, lawsuits have become politics by other means. Republican lawmakers lost their bid to block health reform in the elected branches, and immediately asked the courts to overrule the democratic process. When corporate lobbyists fail to block consumer and worker protections in the legislature, they immediately seek immunity from these new laws through legal doctrines such as preemption and tricks such as forced arbitration. Cases such as Bush v. Gore and Citizens United v. FEC leave the very results of our elections up to men in black robes.

TP Justice will provide in depth legal analysis of high-profile court cases, such as the Affordable Care Act litigation, but it will also highlight equally important legal and constitutional developments that too often fly under the radar. The whole nation took notice when the Supreme Court opened the floodgates to billions of corporate dollars in American elections, but major developments such as the Supreme Court’s decision effectively eliminating consumer class actions often go unnoticed. TP Justice will provide you with the information you need to understand how the courts are being used to push an agenda that would never fly in the elected branches.

Additionally, TP Justice will examine the battle to shape the judiciary through judicial nominations and confirmation fights. And it will continue ThinkProgress’ focus on conservative efforts to remake the Constitution into a document that is hostile to workers, immigrants, Medicare and Social Security.

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