How Appealing



Wednesday, June 29, 2011

“Roberts Court Wraps up Term, Leaving Significant Conservative Mark”: This segment (transcript with link to video) featuring Marcia Coyle appeared on yesterday’s broadcast of the PBS program “NewsHour with Jim Lehrer.”

Posted at 11:07 PM by Howard Bashman



“Common Sense and Sensibility”: Linda Greenhouse has this post at the “Opinionator” blog of The New York Times.

Posted at 9:54 PM by Howard Bashman



“High court could make gay marriage a 2012 issue; In 2004, the topic motivated conservative voters in Ohio and other states”: Tom Curry, national affairs writer for MSNBC.com, has this report.

Posted at 9:50 PM by Howard Bashman



“Appeals court upholds health care law”: Joan Biskupic of USA Today has this news update.

The Columbus (Ohio) Dispatch has a news update headlined “Federal appeals court upholds Obama’s new health care law.”

Politico.com reports that “6th Circuit panel upholds individual mandate.”

The Hill has a blog post titled “Court rules healthcare reform law is constitutional, upholds mandate.”

And this evening’s broadcast of NPR’s “All Things Considered” contained an audio segment entitled “Federal Court Upholds Health Care Law” featuring Nina Totenberg.

Posted at 7:44 PM by Howard Bashman



“Physicians file lawsuit to stop abortion clinic restrictions”: Today’s edition of The Kansas City Star contains an article that begins, “A father-daughter physician team is going to court to stop the state from imposing new rules that could potentially leave the state abortion free by the end of the week.”

Posted at 1:27 PM by Howard Bashman



The U.S. Court of Appeals for the Sixth Circuit has issued its ruling in Thomas More Law Center v. Obama: You can access the ruling at this link. The line-up on the three-judge panel is as follows:

MARTIN, J., delivered the opinion of the court, in which SUTTON, J., and GRAHAM, D. J., concurred as to Parts I (background) and II (subject matter jurisdiction) and in which SUTTON, J., concurred in the judgment. SUTTON, J. (pp. 27-53), delivered the opinion of the court as to Part I (taxing power) of his opinion, in which GRAHAM, D. J., joins. GRAHAM, D. J. (pp. 54-64), delivered a separate opinion concurring in part and dissenting in part

As the lead opinion explains, “We find that the minimum coverage provision is a valid exercise of legislative power by Congress under the Commerce Clause and therefore AFFIRM the decision of the district court.”

Senior U.S. District Judge James L. Graham‘s separate opinion concludes:

Notwithstanding Raich, I believe the Court remains committed to the path laid down by Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas to establish a framework of meaningful limitations on congressional power under the Commerce Clause. The current case is an opportunity to prove it so.

If the exercise of power is allowed and the mandate upheld, it is difficult to see what the limits on Congress’s Commerce Clause authority would be. What aspect of human activity would escape federal power? The ultimate issue in this case is this: Does the notion of federalism still have vitality? To approve the exercise of power would arm Congress with the authority to force individuals to do whatever it sees fit (within boundaries like the First Amendment and Due Process Clause), as long as the regulation concerns an activity or decision that, when aggregated, can be said to have some loose, but-for type of economic connection, which nearly all human activity does. See Lopez, 514 U.S. at 565 (“[D]epending on the level of generality, any activity can be looked upon as commercial.”). Such a power feels very much like the general police power that the Tenth Amendment reserves to the States and the people. A structural shift of that magnitude can be accomplished legitimately only through constitutional amendment.

Thus, only one judge on the three-judge panel would have struck down the federal healthcare mandate as beyond Congress’s powers under the Commerce Clause.

My earlier coverage of this case can be accessed here (linking to the biographies of the judges on the appellate panel) and here (linking to the appellate oral argument audio and initial news coverage of the oral argument).

In early news coverage of today’s ruling, The Associated Press reports that “US appeals court upholds Obama health care law.”

Bloomberg News reports that “Obama Administration Health Care Law Upheld by U.S. Appeals Court Panel.”

Reuters reports that “Appeals court backs healthcare law, win for Obama.”

Bill Mears of CNN.com reports that “Appeals court rules in favor of Obama on health care.”

The New York Times has a news update headlined “Appeals Court Upholds Obama’s Health Care Law.”

Noam N. Levey and David G. Savage of The Los Angeles Times have a news update headlined “In major test, appeals court upholds Democratic healthcare law.”

The Wall Street Journal has a news update headlined “Appeals Court in Ohio Upholds Health Law.”

The Washington Times has a news update headlined “Appeals court upholds Obama’s health care law.”

The Cincinnati Enquirer has a news update headlined “Cincinnati appeals court upholds Obama’s health-reform plan.”

At “SCOTUSblog,” Lyle Denniston has a post titled “Health insurance mandate survives — barely.”

And at the “aca litigation blog,” law professor Brad Joondeph thus far has written five posts about the ruling. You can access those posts here, here, here, here, and here.

Posted at 12:47 PM by Howard Bashman



“Court Jesting: These Sentences Don’t Get Judged Too Harshly; Creative Writing Rules for Some on Bench; ‘Tough as a Three-Dollar Steak.”‘ Nathan Koppel has this article today in The Wall Street Journal. And at WSJ.com’s “Law Blog,” Koppel has this related post.

As for what may explain the upsurge in creative opinion writing, Koppel’s article notes one possible explanation — a desire to attract attention from the growing number of widely read law-related blogs.

The article correctly observes that sometimes creative opinion writing succeeds, while other times it does not. I have thus adopted a policy here at “How Appealing” of trying to highlight the best examples of the genre, while simply ignoring those instances that fall flat or seem to amount to little more than unseemly pleas for attention.

Posted at 10:58 AM by Howard Bashman