From the Texas Tribune: Judge: Texas can't kick Planned Parenthood out of Medicaid

Here's a current example of cooperative and/or coercive federalism - depending on your ideological point of view.

- Click here for the article.

U.S. District Judge Sam Sparks ruled Tuesday afternoon that Texas clinics affiliated with Planned Parenthood can continue to care for patients under the state’s Medicaid program, a phew-worthy victory for reproductive rights advocates and a loss for the state's GOP leaders.

In a 42-page ruling, Sparks wrote that the state's arguments in the case were "the building blocks of a best-selling novel rather than a case concerning the interplay of federal and state authority through the Medicaid program."

"After reviewing the evidence currently in the record, the Court finds the Inspector General, and thus [the Texas Health and Human Services Commission], likely acted to disenroll qualified health care providers from Medicaid without cause," the ruling read. "Such action would deprive Medicaid patients of their statutory right to obtain health care from their chosen qualified provider."

The ruling comes more than a year after Planned Parenthood first sued Texas to stay in the joint federal-state health insurance program for the poor and disabled. Texas had begun the process of kicking Planned Parenthood out — even though its participating clinics provided reproductive health care and cancer screenings, not abortions — in October 2015. But the state did not send a final notice to those providers until December 2016. The affiliates in the lawsuit include Planned Parenthood of Greater Texas, Planned Parenthood Gulf Coast and Planned Parenthood of South Texas.

. . . Shortly after the ruling, Texas Attorney General Ken Paxton said in a news release he was disappointed with the decision and plans to appeal. He said the videos provided sufficient evidence and "exposed a brazen willingness by Planned Parenthood officials to traffic in fetal body parts."

"No taxpayer in Texas should have to subsidize this repugnant and illegal conduct," Paxton said. "We should never lose sight of the fact that, as long as abortion is legal in the United States, the potential for these types of horrors will continue.”

In court, Planned Parenthood attorneys argued that not allowing the reproductive health provider to stay in the Medicaid program, which is largely funded by the federal government, would severely curb access to care for poor Texas men and women seeking preventive and sexual health services. The attorneys also argued that the state did not have the capacity to deliver these services in the same way Planned Parenthood does and reiterated that state and federal law already prohibit taxpayer dollars from being spent on abortion services.

- Click here for the ruling.
- Click here for Judge Sparks' Wikipedia page.

From Houston Public Media: Federal Judge Rules Pasadena Infringed On Latino Voting Rights, Orders Changes

This story illustrates a variety of topics we'll cover in class includes federalism, voting rights, equal protection, and the courts.

- Click here for the article.

A federal judge ruled late Friday that the the City of Pasadena promoted and implemented a voting plan intended to dilute Latino power at the polls.

In a 113-page ruling (a link is below), U.S. District Judge Lee Rosenthal ordered city officials to revert to an eight-single-member City Council voting plan used before 2014. That was the year voters narrowly approved a plan that elected six members from districts and two at large. In summarizing the ruling, the judge wrote:

“In the Supreme Court’s foundational decision on vote dilution, Reynolds v. Sims, 377 U.S. 533 (1964), the Court ruled that dilution was tantamount to infringing the very right to vote. ‘Overweighting and overvaluation of the votes of those living here has the certain effect of dilution and undervaluation of the votes of those living there. The resulting discrimination against those individual voters living in disfavored areas is easily demonstrable mathematically. Their right to vote is simply not the same right to vote as that of those living in a favored part of the [jurisdiction].’ In Pasadena, Texas, Latino voters under the current 6–2 map and plan 56 do not have the same right to vote as their Anglo neighbors.”|

Aside from restoring the previous voting plan, Rosenthal also said she will supervise the 2017 municipal elections in May and watch for any efforts to suppress Latino voting rights. The judge also ordered Pasadena to submit any future changes in its voting plan to the U.S. Justice Department for civil rights pre-clearance.

Here's a link to the federal judge's ruling:

- MALDEF vs City of Pasadena.

I wouldn't be at all surprised to see this in the Supreme Court in a couple years.

For more on the items mentions in the article:

- 14th Amendment.
- 15th Amendment.
- Reynolds v Sims.
- Voting Rights Act.
- Shelby v Holder.
- Pre-Clearance.
- MALDEF.
- U.S. District Judge Lee Rosenthal.
- Vote Dilution.

For other stories on the subject:

- Pasadena back under U.S. oversight - Judge orders elections be supervised until 2023 after Latino rights violated.

From the Texas Tribune: Judge Blocks Texas Immigrant Harboring Law

To kick things off in 2305 today - a look at how the decisions of a federal judge can, and cannot, impact public policy in Texas and how they in turn impact the citizens of Texas (who are also citizens of the national government).

- Click here for the article.

A federal judge has blocked part of the state’s omnibus border security bill that makes harboring undocumented immigrants a state crime.

Under a provision of House Bill 11, which went into effect in September, a person commits a crime if they “encourage or induce a person to enter or remain in this country in violation of federal law by concealing, harboring, or shielding that person from detection.”

In January the Mexican American Legal Defense and Educational Fund, or MALDEF, filed a lawsuit in Bexar County against Gov. Greg Abbott, Texas Department of Public Safety Director Steve McCraw and the Texas Public Safety Commission, which oversees the DPS. The lawsuit alleges the state violated the U.S. Constitution’s Supremacy Clause because immigration enforcement is a federal responsibility.

The lawsuit was filed on behalf of two San Antonio landlords, David Cruz and Valentin Reyes; and Jonathon Ryan, the director of an immigrant services agency. The plaintiffs said that under the bill’s provisions, they could be accused of the crime for providing shelter space or renting homes to undocumented immigrants.

“What the plaintiffs said was, ‘We don’t want to be prosecuted under this law, we think it’s unconstitutional,’” said Nina Perales, MALDEF’s vice president of litigation.

In an order signed on Thursday, federal District Judge David Alan Ezra said the plaintiffs would likely succeed on the Supremacy Clause claim and ruled that state and local officials had no authority to enforce the harboring provision until a final decision on the case is made.

“In this case, Plaintiffs risk subjection to criminal penalties under laws that might be pre-empted by federal law and the Supremacy Clause of the United States Constitution,” he wrote. “Thus, the Court finds that Plaintiffs are likely to suffer irreparable harm.”

A spokeswoman for state Attorney General Ken Paxton said "we are disappointed in the ruling and evaluating our options."

Although MALDEF was victorious on one front, the judge rejected the group’s claim that the bill violates the plaintiffs' right to due process and equal protection. Perales said the equal protection argument was made because the bill did not have a “rational purpose” and was arbitrary.

But in his order, Ezra said that although HB 11 might be pre-empted, the harboring provision fits in with the state’s intended goal of securing its borders.

“HB 11’s harboring provisions are rationally related to their stated purpose of ‘strengthen[ing] the state’s border security measures and help[ing to] stem the rising tide of human smuggling and human trafficking in Texas,’” he wrote.

Do sitting federal appellate judges who seek elevation to the Supreme Court modify their behavior to enhance their odds of getting the nomination?

This is a question asked in a recent article n the American Journal of Political Science.

The answer - according to the authors - is yes.

- Click here for detail from ScotusBlog:

We examined the voting behavior of “contender judges” and “non-contender judges.” We defined contender judges as sitting federal appellate judges who have strong reason to believe that the president is considering them for elevation. To identify these judges, we looked to the president’s “short lists.” These are lists (formal or otherwise) presidents keep and maintain to identify potential nominees to the Supreme Court should a vacancy arise. These judges may or may not know they are on the short list, but they certainly have strong reason to suspect they are under consideration. Non-contender judges are federal appellate judges who never made a president’s short list.

Our analysis benefited from the fact that the strong norm these days is to nominate Justices who come from a federal court of appeals. Indeed since 1937, nearly half of all Supreme Court nominees were sitting appeals court judges at the time. Since the Reagan presidency, seventy-three percent of all nominees were sitting federal appeals court judges. Knowing this, federal appellate judges have considerable reason to believe they might be under consideration. And, assuming they want the job, there is every reason to believe they will do what they can to be elevated.

We compared the voting behavior of contender judges (a) when there was a vacancy on the Supreme Court versus (b) when there was no vacancy on the Court. Our belief was that if these judges “court” the president and try to signal to him, they should vote differently in vacancy periods (the time between an announced departure on the Court and when the seat is filled) than in non-vacancy periods. (Our results are robust to other windows of time as well.) During vacancies, they should be more likely to vote in line with the president’s ideological position, more likely to vote for the United States as a party, and more likely to write dissenting opinions. They do precisely that. What is more, we observe none of this behavior from non-contender judges.

Consider whether the judge votes in line with the president’s ideological position. Using a matching analysis, we find that contender judges are more likely to vote in line with the president’s ideological position during vacancy periods than during non-vacancy periods. For example, a contender judge during a non-vacancy period has a forty-two-percent predicted probability of voting to support the president’s ideological position, but a fifty-one-percent predicted probability of doing so during a vacancy period. What is important to note here, again, is that these are judges who already made the president’s short list. That they go into “hyper-ideological” mode during vacancies only underscores our point that they are wooing the president.

The data also show that contender judges are more likely to vote in favor of the United States during vacancy periods than they are during non-vacancy periods. A contender judge during a non-vacancy period has a twenty-seven-percent predicted probability of voting in favor of the United States, but a fifty-four-percent predicted probability of doing so during a vacancy period. These judges do so to establish their “team credentials” and bolster their odds of elevation.

The Conditional Motion for Preliminary Injunction on Implementation of 2013 Redistricting Plans for 2016 Election Cycle

A link in the Texas Tribune's story on the decision by federal judges to not require Texas' congressional districts to be redrawn prior to the 2016 election - click here for the story - has a link to the actual ruling.

Check it out if you wish.

- Click for it here.

Here's a chunk of the text highlighted by the Tribune:

“Even if movants could show a likelihood of success on the merits, the Court must balance the need to protect voting rights that may be affected by the 2013 plans with the need to avoid the adverse effect on voting rights that comes with delay and confusion during election time,” the three judges — Jerry Smith, Orlando Garcia and Xavier Rodriguez — wrote.

“If the Court enjoined the 2013 enacted plans and imposed yet another set of interim plans for the 2016 election, the shifting district and precinct lines would leave candidates in limbo, voters confused, and election officials with the burden of implementing new maps in a timely manner with very limited resources. It would be extremely difficult to implement new interim plans without tremendous interruption to the 2016 election schedule.”

From the Dallas Morning News: Obama names three Texas judges in apparent deal with Cornyn and Cruz

This ties into the previous post on Perry's appointees to the Texas judiciary. This refers to Obama's appointees to the federal judiciary - specifically the judges that will preside over some of the federal court's in Texas. Remember that in a federal system judges serve on all three levels of government, each having jurisdiction over the cases related to the laws on that level of government.

- Click here for the story.

Breaking a longstanding logjam, President Obama announced nominees for three vacant Texas federal court benches late Thursday.

If confirmed, U.S. Attorney Robert Pitman of San Antonio, Texarkana lawyer Robert Schroeder III, and Sherman Magistrate Judge Amos Mazzant III will all get lifetime jobs as U.S. district court judges.

“Any nominations are critically important, as Texas desperately needs to have as many of its nine district and two circuit vacancies filled,” said Carl Tobias, a University of Richmond law professor who tracks nominations. “The judges are overwhelmed by crushing case loads and too few judicial resources.”

. . . Texas has more vacancies than any other state. The liberal group Alliance for Justice, lauding the nominations, accused Sens. John Cornyn and Ted Cruz of prolonging the crisis by “dithering.”

Cornyn aide Megan Mitchell said the senators recommended the picks to the president. Each had been screened by the senators’ Federal Judicial Evaluation Committee. Cornyn spoke to each nominee on Thursday, she said.

The informal process for selecting federal judges is called senatorial courtesy.

- Click here for the Wikipedia on it.
- And here for a more thorough look from justice.gov.

From the NYT: Obama Immigration Policy Halted by Federal Judge in Texas

For out upcoming look at checks and balances:

- Click here for the article.

A federal judge in Texas has ordered a halt, at least temporarily, to President Obama’s executive actions on immigration, siding with Texas and 25 other states that filed a lawsuit opposing the initiatives.

In an order filed on Monday, the judge, Andrew S. Hanen of Federal District Court in Brownsville, prohibited the Obama administration from carrying out programs the president announced in November that would offer protection from deportation and work permits to as many as five million undocumented immigrants.

The first of those programs was scheduled to start receiving applications on Wednesday and the immediate impact of the ruling is that up to 270,000 undocumented immigrants nationwide who came to the United States as children will not be able to apply for deportation protection under an expansion of an existing executive program. A larger new program is scheduled to begin in May.

Judge Hanen, an outspoken critic of the administration on immigration policy, found that the states had satisfied the minimum legal requirements to bring their lawsuit. He said the Obama administration had failed to comply with basic administrative procedures for putting such a sweeping program into effect.

The administration argued that Mr. Obama was well within long-established federal authority for a president to decide how to enforce the immigration laws. But Texas and the other states said the executive measures were an egregious case of government by fiat that would impose huge new costs on their budgets.

The White House responded to the judge’s ruling in a statement early Tuesday, saying the president had acted within the law and with decades of legal precedent behind him in issuing the guidelines.

For more info:

- Website: United District Court: Southern District of Texas.
- Wikipedia: Judge Andrew S. Hanen.
- Judge Hanen's site.

It's worth charting our who favors the president's executive order and who opposes it.

From the Texas Tribune: Federal Judge Strikes Down Texas Abortion Regulation

Since this story illustrates some key points made in the opening sections of GOVT 2306 - those on federalism and political culture - it makes a good subject for this week's written assignment. Its a great example of ongoing tension between the state of Texas and the national government regarding values and culture. It should help put in context the points I try to make in the section on political culture especially.

It also demonstrates the consequences of living in a federal system. The laws on each level are often in tension. And since the people who live in Texas also live in the United States, they can play off this tension. In this case people who disagree with the abortion policies Texas has passed can appeal to the national government and argue they violate laws established on the national level.

It's no guarantee of success, but its a common tactic.

- Click here for the article.

The state law placing restrictions on clinics that provided abortions were argued - by a federal judge in Texas, Judge Lee Yeakel of the District Court for the Western District - to violate guarantees established on the national level. Expect this to wind its way to the U.S. Supreme Court.

Here's a key part of the article:

In his ruling, Yeakel wrote that the law's ambulatory surgical center requirement "burdens Texas women in a way incompatible with the principles of personal freedom and privacy protected by the United States Constitution for the 40 years since Roe v. Wade."

Yeakel also said the state had reached a "tipping point" in limiting access to abortion when the ambulatory surgical center requirement is viewed in the context of the other state-imposed regulations. The regulations

Yeakel mentioned include a 24-hour waiting period for abortions and requiring doctors to perform a sonogram on a woman at least 24 hours before she has an abortion.

"The court is firmly convinced that the State has placed unreasonable obstacles in the path of a woman's ability to obtain a previability abortion," Yeakel wrote.

Click here for the findings of fact and conclusions of law.
Click here for the final judgement.

Federal judge rules that bans on same sex marriage do not address a legitimate state interest

Just in time - well a slight bit late - for 2305's review of civil rights comes a decision by a federal judge in Michigan against the states ban on same sex marriage.

- Click here for the decision.

Starting on page 16, the judge offers a review of the various standards that can be used to strike differences between groups (strict scrutiny etc...) and concludes that the law has no rational purpose. This means a higher standard must be used to strike differences between same and heterosexual couples for purposes of marriage.

Its a great take on a subject I may or may not have covered clearly in class - but students should read though it so they can see how the topic is applied currently to deal with this ongoing issue.

Here's an important part of the decision from page 20 - here the judge denies that the reasons offered fro banning same sex marriage met a legitimate state interest - which is the low bar a law has to clear in order to meet the requirements of rational basis review - the same requirements age restrictions on drinking have to clear:

Largely in keeping with the justifications offered in their summary judgment motion, at trial, the state defendants asserted that the MMA serves the following legitimate state interests: (1) providing an optimal environment for child rearing; (2) proceeding with caution before altering the traditional definition of marriage; and (3) upholding tradition and morality. Additionally, the state defendants consistently asserted that defining marriage is within the exclusive purview of the state’s police power. None of these proffered reasons provides a rational basis for adopting the amendment.

Continue with the decision to unpack his reasoning.

A federal judge in San Antonio declares Texas' ban on same sex marriage to be unconstitutional

The Judge is Orlando Garcia who serves in the US District Court for the Western District of Texas.

- Click here for his website.

I cant the decision right now, and there's not much on details yet.

Here's what the Washington Post has to say:

A federal judge has struck down Texas’ ban on gay marriage, but is leaving it in place pending a ruling by an appeals court later this year.

Judge Orlando Garcia issued a preliminary injunction on the ban Wednesday, then suspended his ruling. Two gay couples had challenged the state’s constitutional amendment and a longstanding law banning gay marriage.

Under federal court rules, a judge may suspend a law if he or she believes the plaintiffs have a strong case and will suffer if the law is enforced.

Garcia said his injunction against Texas enforcing its ban will take effect once an appeals court has a chance to rule on the issue.

The ruling is the latest in a recent series of victories for gay rights activists.

This is from the Houston Chronicle:

A federal judge in San Antonio on Wednesday declared Texas' ban on gay marriage unconstitutional. The Lone Star state's refusal to recognize out-of-state same-sex marriages is also unconstitutional, he ruled.

U.S. District Judge Orlando Garcia, however, also issued a stay, meaning the bans remain in effect for the time being.

Two gay couples have sued the state aiming to overturn the bans. One lesbian couple had to go to Massachusetts to get married, and they want Texas to recognize the union. A second couple had a courtship of 17 years and say they want to get married here in their home state.

Garcia ruled that the couples met the criteria for a preliminary injunction, including the likelihood of winning the suit.

Nationwide, seven states have struck down same-sex marriage bans, in whole or in part, in the past 65 days. But every state, including now Texas, has a stay in effect leaving the laws in place until the issue is visited by the U.S. Supreme Court.

From the NYT: The Endless Battle Over Judicial Nominees

The author tests the idea that Obama's judicial appointees have been treated worse than W. Bush or Clinton. He finds the record mixed.

First he points out why a controversy even exists over these nominations: 

Judicial nominations tend to be drawn-out, process-heavy affairs, as do the trials and appeals over which federal judges ultimately preside. Yet in the last few years alone, federal judges have shaped policy on climate change, health care, voting rights, labor relations, contraception, gun control and campaign finance, among other issues. Congressional action may get the bigger headlines, but federal judges often have the last word.

He then points out that the picture varies depending on whether the appointment is for a district court, or a circuit court judge.

. . . Mr. Obama has been roughly as successful as his recent predecessors in getting his circuit court nominees confirmed. He has placed a handful fewer judges because he has nominated fewer. His fifth-year failure rate (14 percent of nominees not confirmed) is actually somewhat lower than Mr. Bush’s (22 percent) and Bill Clinton’s (21 percent).

. . . The district courts, where federal trials occur, are a different story. There, Democratic presidents really have had a harder time winning Senate confirmation for their nominees.

The Senate failed to confirm only 3 percent of Mr. Bush’s district court nominees through June of his fifth year in office (and 1 percent by the end of his presidency). The fifth-year failure rate for Mr. Clinton was 11 percent, and it has been 8 percent for Mr. Obama. If every recent president had a confirmation rate as high as Mr. Bush’s, Democrats might have placed 25 more trial judges on the federal bench.

The difference is especially notable, legal experts say, because Democratic presidents have generally avoided nominating passionate liberals, while Mr. Bush did not shy away from putting strong conservatives in the mold of Justice Antonin Scalia on appellate courts.

Republicans, in other words, have played a tougher brand of politics with federal trial courts. Depending on one’s perspective, that strategy is more partisan or more successful — or both.

He finds that vacancies in trial courts happen mostly in states with two Republican Senators. 

Federal Court orders FDA to reverse ruling on "morning-after" pill

Some checking and balancing here.

In late 2011 the Food and Drug Administration passed rules allowing the sake of Plan B - Levonorgestrel, and emergency contraceptive - over the counter without age limits, but this was overturned by the HHS Secretary Kathleen Sebelius.

That ruling has itself been overturned, and in language that recalls the basic problems posed by the single headed (hence autocratic) executive:

In his ruling, U.S. District Judge Edward Korman called Sebelius's decision "arbitrary, capricious and unreasonable."

"The motivation for the secretary's action was obviously political," he wrote.

Scientists and activists who have long been involved in emergency contraception reached the same conclusion about Sebelius's 2011 decision.

"I thought it was an act of cowardice," said Dr Michael Greene, professor of obstetrics and gynecology at Harvard Medical School and a long-time adviser to the FDA. "It was during the run-up to the 2012 election, and the administration didn't want the Republicans to beat them over the head with this" during a campaign when Obama was trying to appeal to middle-of-the-road voters.

Because physicians and doctors advising the FDA had concluded that the morning-after pills were safe for younger adolescents and did not cause promiscuity, critics saw Sebelius's decision as an instance of politics trumping science - something that particularly riled activists who had been led to expect otherwise.  

In the US Senate today . . .

Just to keep up to date, from January 23rd's calendar:

4:00 p.m.: Proceed to executive session to consider the nomination of John M. Gerrard to be United States District Judge for the District of Nebraska.

The Senate Glossary defines an executive session as one where "A portion of the Senate's daily session in which it considers executive business." Wikipedia's section on the standing rules of the Senate has more, in addition to a list of the executive positions subject to advise and consent.


Here's background on John M. Gerrard. He was appointed on the recommendation of retiring Nebraska Senator Ben Nelson. This is the customary way that Federal District Judges are appointment when one of the state's US Senators are of the same party as the president. Alabama Senator Sessions has opposed Gerrard's nomination partly due to an opinion he issued challenging whether the executions by electric chair was constitutional.


If approved, Gerrard would fill a vacancy on the court (here's the Wikipedia page for the court, here's the court's website) and become its sixth judge. This is the only district court for the state of Nebraska. There are 89 such courts across the country. Each state has to have one according to the Constitution. 

What is a US District Judge you ask? The US Court's website explains (its the trial court on the federal level) here's more info from the relevant Wikipedia page.

The appointment and confirmation has become increasingly contentious. Senate rules allow a minority to prevent confirmation votes - or any vote really - from going to the floor. Reports suggest that judicial vacancies have risen during the Obama Administration. Here are numbers from the US Courts site and judicialnomination.org.

For a list of Obama's judicial nominees, click here.

A Second Federal Judge Finds the Health Care Law Unconstitutional

- Story in the NYT.
- A summary of opinions from the Atlantic Wire.
- Thumbs up from the WSJ.
- Clive Crook: Health Care and the Constitution.
- Garrett Epps: The Vinson Ruling and the Strange Nature of Judicial Review.

Senile Judges . . .

. . . an unforeseen consequence of lifetime tenure on the judiciary. How do you persuade a senile federal judge to retire?

Life tenure, intended to foster judicial independence, has been a unique feature of the federal bench since the Constitution was ratified in 1789. Back then, the average American lived to be about 40 and the framers didn't express much worry about senile judges. "A superannuated bench," Alexander Hamilton said, is an "imaginary danger."

No longer. Today, aging and dementia are the flip side of life tenure, with more and more judges staying on the bench into extreme old age. About 12 percent of the nation's 1,200 sitting federal district and circuit judges are 80 years or older, according to a 2010 survey conducted by ProPublica. Eleven federal judges over the age of 90 are hearing cases—compared with four just 20 years ago. (One judge, a Kansan appointed by President John F. Kennedy, is over 100.) The share of octogenarians and nonagenarians on the federal bench has doubled in the past 20 years. The demographics of the federal bench have no analogue on the state courts, where judges mostly occupy their office for a term of fixed years and generally have mandatory retirement ages, often in their 60s or 70s.

The Future of the Commerce Clause

This is a very big deal and I'll integrate it into my discussion of federalism in 2301. It involves potential of challenges to the commerce clause and its impact on federalism. Linda Greenhouse kicked up a discussion of the consequence of the recent Virginia Court ruling on the individual mandate component of the health care law. Will it lead to the narrowing of the commerce clause that New Deal critics have been pursuing for decades?

It has been 15 years since the Rehnquist court began applying the constitutional brakes to assertions of federal power that had seemed unassailable since the New Deal. Its first target was modest, a five-year-old federal statute called the Gun-Free School Zones Act that most people had never heard of, which made it a federal crime to possess a gun within 1,000 feet of a school.

The vote in United States v. Lopez was 5 to 4. Chief Justice William H. Rehnquist wrote the court’s opinion, observing that the Constitution’s commerce clause did not confer on Congress a general police power disconnected from the regulation of economic activity. To uphold this statute, he said, would be to blur the “distinction between what is truly national and what is truly local.” For the first time since 1936, the Supreme Court struck down a federal law as exceeding Congress’s commerce power. In dissent, Justice David H. Souter warned that “it seems fair to ask whether the step taken by the court today does anything but portend a return to the untenable jurisprudence from which the court extricated itself almost 60 years ago.”

Thus began the Rehnquist court’s federalism revolution, a 5-to-4 forced march through the various sources and attributes of Congressional power. The targets included, most notably, Congress’s authority under Section 5 of the 14th Amendment to enact into law its own vision of the guarantees of equal protection and due process when that vision was broader than the court’s own. William Rehnquist had waited a judicial lifetime to assemble a majority that would follow him on such a course. Eleven federal statutes would eventually fall, in whole or part, on federalism grounds in less than a decade before the court, including the chief justice himself, began to blink and the revolution petered out.

Ever since, it has been quite easy to get a good debate going, among people who spend time thinking about such matters, about whether the federalism revolution really had amounted to much beyond the symbolic. True, the court did strike down a provision of one fairly high-profile law, the Violence Against Women Act, under which women could sue their attackers for damages. But no major federal program felt the ax. I had been an early proponent of the view that something big was happening. But in recent years, while still finding the subject of great interest, I was beginning to have my own doubts about what it all had meant.

Until now. In his opinion on Monday striking down the individual mandate of the new health care law, Judge Henry E. Hudson of federal district court in Virginia cited the Lopez case and United States v. Morrison, the Violence Against Women Act decision (also a 5-to-4 Rehnquist majority opinion), more than a dozen times. Judge Hudson deployed the two cases as the major building blocks for his argument that Congress lacked constitutional authority to require individuals either to purchase health insurance or pay a fine to the Internal Revenue Service, a provision the judge said was “neither within the letter nor the spirit of the Constitution.”
She then adds her criticism of the decision which itself has been criticized:

- Ilya Solim.
- Conor Friedersdorf.

On Obama's Judicial Appointees

From the Huffington Post:

As the first congressional session of Obama's presidency draws to a close, what began as a slow process of confirmation has ballooned into a full-blown judicial crisis. The Senate has overseen the slowest pace of judicial staffing in at least a generation, with a paltry 39.8 percent of Obama's judges having been confirmed, according to numbers compiled by Senate Democrats. Of the 103 district and circuit court nominees, only 41 have been confirmed.
By this time in George W. Bush's presidency, the Senate had confirmed 76 percent of his nominees. President Clinton was working at a rate of 89 percent at this point in his tenure.
More:

- Jonathan Chait.
- Jonathan Bernstein.

Virginia Federal Judge Rules Individual Mandate Unconstitutional

From the NYT:

A federal district judge in Virginia ruled on Monday that the keystone provision in the Obama health care law is unconstitutional, becoming the first court in the country to invalidate any part of the sprawling act and ensuring that appellate courts will receive contradictory opinions from below.

Judge Henry E. Hudson, who was appointed to the bench by President George W. Bush, declined the plaintiff’s request to freeze implementation of the law pending appeal, meaning that there should be no immediate effect on the ongoing rollout of the law. But the ruling is likely to create confusion among the public and further destabilize political support for legislation that is under fierce attack from Republicans in Congress and in many statehouses.

An Impeachment Trial in the Senate

From the NYT:

The proceedings in the Senate on Tuesday were as remarkable as the charges that lawmakers there were asked to weigh. As tax policy debates swirled around the Capitol, the Senate on Tuesday began pondering the fate of Judge G. Thomas Porteous Jr. of Federal District Court in Louisiana, whom the House of Representatives impeached in March on four articles of “high crimes and misdemeanors” stemming from charges that he received cash and favors from those with business in his court.

This is only the 12th impeachment trial of a judge in Senate history.
Update: The Senate voted to convict.

One Out of Every Eight Judicial Seats is Vacant

Should we be worried?