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Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.

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Key Legal Excerpts from State of the Union Address

January 28th, 2014

On the Voting Rights Act and the Supreme Court (and Citizens United):

Citizenship means standing up for everyone’s right to vote. Last year, part of the Voting Rights Act was weakened. But conservative Republicans and liberal Democrats are working together to strengthen it; and the bipartisan commission I appointed last year has offered reforms so that no one has to wait more than a half hour to vote. Let’s support these efforts. It should be the power of our vote, not the size of our bank account, that drives our democracy.

Lovely passive voice.

On guns:

Citizenship means standing up for the lives that gun violence steals from us each day. I have seen the courage of parents, students, pastors, and police officers all over this country who say “we are not afraid,” and I intend to keep trying, with or without Congress, to help stop more tragedies from visiting innocent Americans in our movie theaters, shopping malls, or schools like Sandy Hook.

On drones:

So, even as we aggressively pursue terrorist networks – through more targeted efforts and by building the capacity of our foreign partners – America must move off a permanent war footing. That’s why I’ve imposed prudent limits on the use of drones – for we will not be safer if people abroad believe we strike within their countries without regard for the consequence.

On Guantanamo!

That’s why, working with this Congress, I will reform our surveillance programs – because the vital work of our intelligence community depends on public confidence, here and abroad, that the privacy of ordinary people is not being violated. And with the Afghan war ending, this needs to be the year Congress lifts the remaining restrictions on detainee transfers and we close the prison at Guantanamo Bay – because we counter terrorism not just through intelligence and military action, but by remaining true to our Constitutional ideals, and setting an example for the rest of the world.

On Obamacare:

A pre-existing condition used to mean that someone like Amanda Shelley, a physician assistant and single mom from Arizona, couldn’t get health insurance. But on January 1st, she got covered. On January 3rd, she felt a sharp pain. On January 6th, she had emergency surgery. Just one week earlier, Amanda said, that surgery would’ve meant bankruptcy.

That’s what health insurance reform is all about – the peace of mind that if misfortune strikes, you don’t have to lose everything.

Already, because of the Affordable Care Act, more than three million Americans under age 26 have gained coverage under their parents’ plans.

More than nine million Americans have signed up for private health insurance or Medicaid coverage.

And here’s another number: zero. Because of this law, no American can ever again be dropped or denied coverage for a preexisting condition like asthma, back pain, or cancer. No woman can ever be charged more just because she’s a woman. And we did all this while adding years to Medicare’s finances, keeping Medicare premiums flat, and lowering prescription costs for millions of seniors.

Now, I don’t expect to convince my Republican friends on the merits of this law. But I know that the American people aren’t interested in refighting old battles. So again, if you have specific plans to cut costs, cover more people, and increase choice – tell America what you’d do differently. Let’s see if the numbers add up. But let’s not have another forty-something votes to repeal a law that’s already helping millions of Americans like Amanda. The first forty were plenty. We got it. We all owe it to the American people to say what we’re for, not just what we’re against.

Update: Here is video of several of these parts.

Eco-Terrorist Sentenced To Five Years In Federal Prison, and Must Read Malcolm Gladwell Book

January 28th, 2014

I think the latter punishment may be substantively unreasonable under the Guidelines:

A Canadian woman who admitted taking part in ecoterrorism firebombings has been sentenced to five years in prison.

Rebecca Rubin, 40, pleaded guilty to conspiracy and arson charges in October. The sentence was the lowest Rubin could have received under federal sentencing guidelines.

U.S. District Court Judge Ann Aiken said Monday in federal court in Portland, Oregon, that Rubin showed contrition and lived in “an emotional prison cell” during seven years as a fugitive in Canada, from December 2005 to November 2012.

Aiken included in her sentence an order to read two books: “David and Goliath,” by Malcolm Gladwell, which Aiken said Rubin could learn non-violent means to protesting systems she perceives as unjust; and “Nature’s Trust,” by University of Oregon environmental law professor Mary C. Wood.

Isn’t being in jail punishment enough?

“Neck Doily” as Slang for “Jabot” In Black’s Law Dictionary

January 28th, 2014

Bryan Garner just made my day when he tweeted the draft definition for “jabot” in the next edition of Black’s Law Dictionary. It says “Also termed (slang) neck doily.”

I think I may have coined a word!

I first used the phrase “neck doily” in this post from October 2009 noting that Justice Sotomayor was not wearing the “neck doily” that Justice Ginsburg gave her. At some point earlier, I made a joke to a friend about Justice Ginsburg’s frilly jabot. I said something to the effect of, “Is she a Justice or a tea cup? Why is she wearing a doily around her neck.” And, it stuck. Above The Law adopted the usage back in 2010. I’m even cited as a footnote on Wikipedia for jabot!

Since then I’ve (somehow) published about two dozen posts on the neck doily. Justice Kagan wore a neck doily in her first Supreme Court portrait, and during her investiture, but not during her first day on the bench. Kagan later said of the jabot, “In my real life I’m not a frilly, lacy person.” Though all the female Justices wore some kind of neck accoutrements (somewhere between a scarf and a doily) while sitting for their portrait. Then there was the time Justice Ginsburg swapped her neck doily for some bling, and the blue neck doily for the same-sex wedding she officiated at.

If this is my only contribution to the English language, I will be happy.

Senator Ted Cruz Files Amicus in Hobby Lobby as Counsel of Record

January 28th, 2014

Huh. When’s the last time a sitting U.S. Senator was listed as “counsel of record” on an amicus brief before the Supreme Court? As best as I can tell, there are no other lawyers listed on the brief. It is signed:

Respectfully submitted, TED CRUZ Counsel of Record UNITED STATES SENATOR 185 Dirksen Senate Office Building Washington, D.C. 20510 [email protected] (202) 224-5922

Update: The Senior senator from Texas, John Cornyn, filed at least two briefs as counsel of record in Elk Grove Unified School District v. Newdown, and Rumsfield v. Padilla.

Amicus Brief on Behalf of Senators Defending Religious Liberty from Obamacare Contraception Mandate

 

Obama Signs Executive Order Boosting Minimum Wage For Federal Contractors in Future Contracts

January 28th, 2014

As part of his efforts to “bypass” Congress to pass legislation, the President has announced that he will sign a bevy of executive orders. One such order would require that “janitors, construction workers and others working for federal contractors be paid at least $10.10 an hour.”

I haven’t seen the actual text of the order, but in the abstract, I don’t see any constitutional problems here. The order would only apply to prospective government contracts, not ones in existence. This would obviate any contract clause problems (as reverse incorporated through the due process clause).

This order reminds me somewhat of President Kennedy’s famous Executive Order 10925, which prohibited racial discrimination in federal hiring, even before the Civil Rights Act was passed.

John Boehner also seems to think this is okay.

“House Republicans will continue to look closely at whether the president is faithfully executing the laws as he took an oath to do,” Boehner (R-Ohio) said Tuesday morning after a meeting of House Republicans at the Capitol Hill Club. “I think dealing with federal contracts and the minimum wage, he probably has the authority to do that. But we’re going to watch very closely because there’s constitution we all take an oath to — including him. And following that constitution is the basis for our republic and we shouldn’t put that in jeopardy.”

I’ll keep my eye open for any other executive orders that the President signs.

Update: GW LawProf Dan Gordon, who specializes in government procurement, argues that this law may violate the “Federal Property and Administrative Services Act of 1949.”

“My understanding is that they are using the president’s authority under the Federal Property and Administrative Services Act of 1949,” George Washington Law School’s Associate Dean for Government Procurement Law Studies Dan Gordon told Townhall. “And that calls for measures which ensure ‘economy and efficiency’ of the procurement process. And I am not sure whether this blanket increase in the wages paid by contractors can be fit within that legal framework.”

“Now it is certainly true that if you had a particular contract,” Gordon explained, “let’s suppose you were running a call center for the IRS in Topeka, Kansas, and you had a history of contractors at that call center who were paying their people the legal minimum and the result was significant staff turnover which was causing disruption, then you clearly could say, ‘You know what, in the next procurement we’re going to require that the contractor pay higher wages because higher wages are necessary to avoid disruption cause by turnover.’ But as a blanket matter I think that there is a legal cloud over whether raising the amount that contractors pay serves ‘economy and efficiency.'”

I know nothing about this law, so I have no thoughts on this.