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Why The Republican AG’s Anti-Birth Control Lawsuits Should Be Over Before They Even Start

Nebraska Attorney General Jon Bruning (R)

Republicans oppose the new rule ensuring that women’s insurance will cover birth control, so they’ve now done what Republicans seem to do whenever they disagree with President Obama — sue:

Seven states sued the Obama administration Thursday over its requirement that employers cover contraception in workers’ health plans.

The lawsuit, led by Nebraska’s attorney general, contends that the proposed rule violates Roman Catholic institutions’ rights under the First Amendment to express their beliefs and practice their religion. . . .

All seven attorneys general behind the lawsuit—from Nebraska, South Carolina, Michigan, Texas, Florida, Ohio and Oklahoma—are Republicans.

This lawsuit, of course, is entirely without merit. As Justice Scalia explained in a Supreme Court opinion more than twenty years ago, the Constitution “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” Thus, because the new regulations apply equally to Catholics and non-Catholics alike, there is no constitutional problem.

Nevertheless, it is doubtful that the Republican AG’s lawsuit will even receive a decision on the merits because of a doctrine known as “standing.” Under Article III of the Constitution, a plaintiff is not allowed to file a lawsuit unless they have in some way be injured by the defendant. But the states filing this lawsuit have suffered no legal injury whatsoever because of the new regulations, and they don’t even appear to claim that they law impacts them in some meaningful way. Rather, this lawsuit is simply seven state officials suing because they do not like the way the law impacts someone else — in this case, certain Roman Catholic institutions.

As the Supreme Court explained most recently in Massachusetts v. EPA the Constitution “prohibits” states from suing the federal government “to protect her citizens from the operation of federal statutes,” so a responsible judge will dismiss this lawsuit right out the gate. The states simply have no constitutional authority to be in court in the first place.

Sadly, however, there’s nothing in the Constitution preventing these seven AGs from wasting taxpayer money on a frivolous lawsuit.

Georgia Senate Majority Leader & President Pro Tempore Introduce Unconstitutional Nullification Bill

Nineteenth Century nullificationist Senator John C. Calhoun

The Constitution provides that acts of Congress “shall be the supreme law of the land” which is why states do not have the power to ignore federal law. Nevertheless, five Georgia state senators — including Majority Leader Chip Rogers (R) and senate President Pro Tempore Tommie Williams (R) — apparently do not believe that the Constitution applies to them. All five lawmakers introduced a wildly unconstitutional plan to have Georgia and its citizens simply ignore laws that its conservative leadership doesn’t want to follow:

(1) There is created the Joint Commission on Recommendation, which shall be charged with recommending and proposing for a vote by a constitutional majority the nullification in its entirety of a specific federal law or regulation which is deemed to be outside the scope of the powers delegated by the people to the federal government in the United States Constitution or at odds with the Georgia Constitution . . .

(4) Upon recommendation for nullification, the General Assembly may vote to nullify following such recommendation. The appropriate documentation reflecting the vote shall be documented in legislative journals of the House and Senate. In the event the General Assembly votes by a constitutional majority to nullify any federal statute, mandate, or executive order on the grounds of constitutionality, neither the state nor its citizens shall recognize or be obligated to live under such statute, mandate, or executive order.

The unconstitutional idea that a state can nullify federal laws nearly sparked a civil war when it was invoked by southern slave owners in the 1830s, and it was a backbone of the segregated south’s efforts to maintain Jim Crow. Beyond a few flare ups, however, is has nearly always existed on the margins of American constitutional radicalism. As James Madison warned, nullification would “speedily put an end to the Union itself” by allowing federal laws to be freely ignored by states.

Nevertheless, it has experienced a bit of a renaissance after a pseudo-historian named Tom Woods published a book on the subject that is popular among certain segments of the Tea Party. Woods also published an article claiming that “[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today, was the defeat of the Confederate States of America in 1865.”

Sadly, Sens. Rogers and Williams are far from the only elected officials who do not recognize that the proto-Confederate idea of nullification cannot be squared with the Constitution. Texas recently passed an unconstitutional law nullifying a federal law regulating light bulbs and numerous states have passed equally unconstitutional nullificationist attacks on the Affordable Care Act.

NEWS FLASH

Tenther Opponent Of Child Labor Laws Announces Senate Bid | Earlier this month, Wendy Long, a former law clerk to Justice Clarence Thomas who has previously suggested that everything from child labor laws to the federal ban on whites-only lunch counters is unconstitutional, indicated that she might run for the senate seat currently held by Sen. Kirsten Gillibrand (D-NY). Long has now officially filed papers to begin her run.

Update

In a 2008 ad, Long also implied that President Obama would appoint judges like an obscure Chicago slum lord and, of course, perennial conservative boogieman Bill Ayes:

Health

McDonnell: I Backpedaled On Ultrasound Bill After Cuccinelli Told Me It’s Unconstitutional

Virginia Gov. Bob McDonnell (R) disputed the notion that he’s spending too much time legislating social policy during this morning Politico forum, as he continued to distance himself from a measure that would have required women to undergo an invasive transvaginal ultrasound before receiving an abortion. Under the proposed policy, most women seeking seeking an abortion would have been forced to have a procedure, “in which a probe is inserted into the vagina, and then moved around until an ultrasound image is produced.”

The governor explained that he has focused on “getting our budgets under control” and “jobs,” not social policy, and claimed that he hadn’t read the original provision before publicly endorsing it. McDonnell also added that Attorney General Ken Cuccinelli, a conservative powerhouse within the Republican party, advised him that the measure was unconstitutional:

MCDONNELL: We realized there were different kinds of ultrasounds and so what I recommended to the General Assembly, and they adopted the other day, is let’s make the requirement for the abdominal ultrasound… I also got legal advice from various people, including my Attorney General, that these kinds of mandatory invasive requirements might run afoul of Fourth Amendment law. So those were the reasons…After talking to lawyers and doctors on my own, after we started hearing some concerns int he legislature, I personally looked at it. I mean, normally a governor would review these hundreds of hundreds of bills when they get to your desk. You’re so busy advocating your own agenda, you don’t read every legislator’s bill. But I was certainly supportive of that concept.

Watch it:

Until the bill attracted national media attention and frustrated some in the Republican party, however, “McDonnell and his aides had said the governor would sign the measure if it made it to his desk.” Since then, he issued a statement claiming that “Mandating an invasive procedure in order to give informed consent is not a proper role for the state” and offered an amendment that would not force women to receive the procedure. Studies have shown that viewing an ultrasound does not change a woman’s mind before an abortion and only adds to the cost of the procedure.

The Virginia House and a Senate committee have passed the ultrasound bill with the governor’s substitute language.

Bush-Appointed Judge Strikes Down Washington Law Protecting Access To Birth Control

Yesterday, a George W. Bush appointed judge declared unconstitutional a Washington state law that, among other things, requires pharmacies to dispense birth control and emergency contraception. While it’s not impossible that the law should be blocked on very narrow grounds, Judge Ronald Leighton’s opinion overreaches in ways that could undermine many efforts to protect women’s health and potentially render religious objectors immune to the rule of law.

This lawsuit was brought by pharmacies and pharmacists who objected to dispensing emergency contraception on religious grounds. Yet, as conservative Justice Antonin Scalia explained in a Supreme Court opinion more than twenty years ago, a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” In other words, so long as a law does not single out people of faith for inferior treatment, they have to follow they same laws as everyone else.

Leighton, however, suggests that a law must also exempt religious objectors if it also contains exemptions that are unrelated to religion:

[A] pharmacy can decline to stock a drug for a host of secular reasons: because the drug falls outside the pharmacies’ chosen business niche (i.e, it is a pediatric, diabetic, or fertility pharmacy); the drug has a short shelf life; the drug is expensive; the drug requires specialized training or equipment; the drug requires compounding; the drug is difficult to store; the drug requires the pharmacy to monitor the patient or register with the manufacturer; the drug has an additional paperwork burden; or simply that the pharmacy has a contract with the supplier of a competing drug. … A pharmacy is permitted to refuse to stock oxycodone because it fears robbery, but the same pharmacy cannot refuse to stock Plan B because it objects on religious grounds. Why are these reasons treated differently under the rules? Both pharmacies refuse and refer, both refusals inhibit patient access, yet the secular refusal is permitted and the religious refusal is not.

If were actually true that a law is unconstitutional because it contains some exemptions but none for religious objectors, than the entire federal tax code is unconstitutional. Federal law allows people to exempt themselves from part of their tax burden if they pay mortgage interest or donate to Planned Parenthood or have a child, but not if they have a religious objection to paying taxes. Indeed, even something as simple as basic traffic laws could be unconstitutional because the state allows emergency vehicles to drive over the speed limit but does not permit people who have religious objections to driving slowly to ignore traffic laws.

Read more

Goldline Hit With Injunction, Agrees To Repay Defrauded Customers $4.5 Million

Conservative talker-endorsed precious metal retailer Goldline International agreed to a court order this week to repay defrauded customers $4.5 million and overhaul its business practices. The injunction, handed down by the Los Angeles County Superior Court, was obtained by the City Attorney of Santa Monica, California — where the company is based — who had filed 19 criminal counts of fraud and theft against the company last year. Those charges have now been dismissed.

Goldline’s entire business model was essentially a scam, the city attorney found. It was a bait-and-switch: Consumers wanted to buy gold bullion, but salespeople preyed on their fears — including falsely claiming that the government could seize bullion — and misled them into buying vastly overpriced gold coins instead. Consumers typically paid more than 55 percent above the actual value of the coins, which are much harder to sell down the road, instantly wiping out a large portion of their savings.

At the time, Goldline called the charges “preposterous” and vowed to fight them. But in addition to the $4.5 million, the court order requires Goldline to put $800,000 into a fund for future claims, and submit to a court-appointed monitor who will have full access to company’s operations, at Goldline’s expense. In addition, it will have to disclose its actual markups and stop misleading customers.

The company is best known for its ties to conservative talk radio hosts like Glenn Beck, Sean Hannity, and Mark Levin, who were central to the company’s marketing model. Two former GOP presidential candidates — Mike Huckabee and Fred Thompson — have even endorsed the gold retailer.

Yuri Beckelman, who conducted a separate investigation into Goldline when he served as former congressman Anthony Weiner’s Legislative Director, told ThinkProgress the endorses should have known better. “It’s unrealistic to think Glenn Beck and other Goldline spokespeople had no clue what was going on. They have a responsibility to their listeners when endorsing products, especially in tough economic times, now it’s up to their fans to hold them accountable.”

“Goldline can try to spin it any way they want,” Beckelman added. “But when you agree to change your business model and then pay a court ordered attorney to monitor your progress for the next five years, you’re admitting that what you were doing was wrong.”

NEWS FLASH

After Working For Anti-Immigrant Hate Group, Kobach Denies Working For A Group That ‘Supports Racial Discrimination’ | Critics have attacked Kansas Secretary of State Kris Kobach, the anti-immigrant official who wrote Arizona and Alabama’s harmful immigration policies, for his ties to Federation for American Immigration Reform (FAIR), a Southern Poverty Law Center-designated hate group that promotes anti-immigrant policies. But Kobach, who worked for FAIR’s legal arm, the Immigration Reform Law Institute, claimed in a Salon interview that he had never worked for a racist organization. “I have not done any legal work for any organization that expresses or supports racial discrimination, nor will I ever do so in the future,” he said. Kobach also claimed that he was unfamiliar with FAIR’s founder John Tanton’s viewpoints. The SPLC has heavily documented FAIR’s white supremacist history and Tanton’s racist comments, including questioning the “educability” of Latinos.

Justiceline: February 24, 2012

Welcome to Justiceline, ThinkProgress Justice’s morning round-up of the latest legal news and developments. Remember to follow us on Twitter at @TPJustice.

  • Hawai’i Gov. Neil Abercrombie (D) announced that he will not defend his state’s unconstitutional ban on same-sex marriage in court.
  • A divided Ninth Circuit upheld a California law requiring people arrested for felonies to provide a DNA sample to police.
  • Chief Justice Roberts’ weakly reasoned decision in the “bong hits 4 Jesus” case is wreaking havoc over school administrators’ ability to determine whether or not their disciplinary policies are constitutional.
  • DC Court face a multimillion dollar legal bill for defending its handgun ban in the landmark DC v. Heller case — and that’s just the plaintiff’s legal fees.
  • Congratulations to Judge Maureen M. Murphy, a key player in the fight to legalize same-sex marriage in Connecticut, who was just confirmed to that state’s bench.
  • The Eleventh Circuit holds that the constitutional right against self-incrimination includes the right not to be required to decrypt your own hard drive.

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