The Steward Machine Company, based in Birmingham, Alabama, challenged the constitutionality of the social security tax cases. The company was founded in 1900. Here is one of their first facilities (you can see it says Steward on the roof).
I think this photograph is dated February 19, 1900, but it is too blurry to make out for sure.
Here is their modern-day image.
One of the more disconcerting aspects of following the Affordable Care Act, beyond the numerous delays and waivers announced weekly, has been the cavalier approach by which the government announces these changes. To say nothing of the merits of these significant changes, it is often difficult to find out why and how the government has justified these decisions. More often than not, the explanation will come in a blog post on the Department of Health and Human Services blog (often on a Friday afternoon). Or, perhaps if we are lucky, there will be a handy PDF explaining the changes in more detail.
After the blog posts, HHS hosts private conference calls (to which I am not a party to) in order to explain the new law. Why and how the government, subject to myriad open meeting laws, can host private phone calls, I cannot begin to explain. But don’t even think about quoting these secret government meetings. Invariably, several media outlets will cite an anonymous source in the government, who (for reasons I can’t even begin to understand) demands anonymity when explaining how a rule (it is hardly law) they just made up impacts millions of people.
And then, maybe a few days later, we will receive a massive hundred-page document, explaining a whole host of new rules promulgated by the government–that of course were not subject to notice and comment. It has become a painful pastime of ferreting through these document dumps, and attempting to find the actual basis for the rule previously announced in the blog post. And invariably, the policy, as stated in the blog post, doesn’t quite match up what is in the rule. And, low and behold, another anonymous government official will explain what the law really is. Plus, some industry expert, also anonymous, will provide further clarification.
If you are getting mad reading this, try following the evolution of this chimerical law over the last few years.
This is no longer a government of law, or even a government of men. This is government by blog post.
Cross-Posted at Law & Liberty.
Politico Magazine has a lengthy featured about Al Snyder–the father of Matthew Snyder, whose funeral was protested by Fred Phelps and the Westboro Baptists.
The first indication that Al’s suffering would be compounded came at the viewing the following night, when a family friend made a passing reference to the prospect of “protesters” at Matt’s funeral. Al’s first thought was that anybody doing such a thing must be an anti-war activist. But then someone mentioned Westboro Baptist Church, which Al immediately remembered from news of the 1998 funeral service for Matthew Shepard, a 21-year-old college student who had been brutally murdered near Laramie, Wyo. Westboro became a national spectacle at Shepard’s funeral, parading with signs saying “Matt in Hell” and “AIDS cures fags.” By the time Al had heard the rumors that his own son’s memory might be treated to such an indignity, members of the Westboro church had already posted notice of their intention to their website. In their announcement on www.godhatesfags.com, the group said it was hoping to use Matt’s military funeral to call attention to America’s permissive views on homosexuality. Skilled in the art of protest, Westboro immediately requested the protection of law enforcement.
Though Matthew Snyder wasn’t gay, his father was.
It didn’t seem to matter to them that Matt wasn’t gay—and the church knew nothing of Al’s sexuality. To them, the funeral represented a place to make a provocative point.
He describes the scene of the funeral:
Al remembers the scene: Reporters swarmed, a motorcycle group arrived to form a kind of peace-keeping shield between the mourners and the activists, and a SWAT team sat at the ready in a nearby Winnebago. Mostly, he recalls that the demonstrators from Kansas had succeeded in turning a solemn service for a fallen Marine into a circus. “All we were trying to do was bury Matt,” Al now offers.
And this report of how he came across the Westboro Baptist’s website missive, that was not resolved in the case:
In the days and weeks after Matt’s funeral, Al drew strength from the outpouring of support he received from strangers scattered across the country. The Internet was initially a place of comfort where he could respond to those who said they were praying for Matt and his family. He got in the habit of googling his son’s name to read seemingly heartfelt greetings offered for his loss. But one day, a random Internet search yielded a screed that had been posted by the Westboro activists. It was titled “The Burden of Matthew Snyder:”
After reading the web site, Al reached out to attorneys, though they insisted that they did not want to make this a “gay issue.”
Al reached out to two local attorneys, Sean Summers and Craig Trebilcock, asking them about his legal options to respond to the disruption and distress the Westboro protesters had caused. The lawyers offered to volunteer their time on the case—though Al would be responsible for any damages or costs incurred by suing the Westboro church—and then they filed a formal complaint in federal court claiming invasion of privacy and the intentional infliction of emotional distress. The suit made headlines and commenced a discovery process that would last more than a year—a process that Al knew could get very personal.
Early on, Al and Walt decided to keep their own sexuality out of their case against Westboro. According to Al, it was Walt’s idea. “He said, ‘What it’s going to do is make this a gay issue and it’s not.’ He was right,” Al remembers.
“We wanted to put the focus on a human issue,” Al now says. “It didn’t have anything to do with gays. It was about doing this to our military people. I’m gay, but the other 400 families who were then in the same situation likely weren’t gay.”
It’s fascinating how Al worked to keep his sexuality out of the case, even when pressed by Westboro lawyers. Judge Bennett insisted on keeping this issue out of the litigation.
When the attorneys could not agree how to proceed with the deposition, an emergency call was placed to Bennett, who again thwarted any questioning that addressed Al’s sexuality. On the call with the judge, Katz persisted, arguing that if Al was gay, the psychological review that Westboro’s expert doctor had performed would need to be changed. In a case seeking damages for emotional distress, Katz argued, Snyder’s sexuality was an issue.
“Let me just cut right to the core,” Bennett said. “There is no reason to file a motion for reconsideration, no reason to ask the question. The court has ruled: One’s sexual orientation has nothing to do with this case.” The following day, Walt was deposed, and when asked about his connection to Al, he replied, “He is a good friend.”
And this vignette from inside One First Street:
There was little doubt that Al would try to take his appellate loss to the Supreme Court. This time, Walt was at his side. When the argument was held on Oct. 6, 2010, the two men sat together in the Supreme Court, along with Al’s daughters and his two sisters. By then, Walt was walking with a cane, having been told he was suffering rheumatoid arthritis. “Several of the Phelpses showed up wearing shirts that said ‘Jews killed Christ.’ I was surprised they were allowed in court like that,” Al recalls. “And when the oral argument ended, the Westboro contingent gathered outside the court and sang Ozzy Osborne’s ‘Crazy Train.’”
And, tragically, Al’s boyfriend was diagnosed with terminal lung cancer, but prayed to hear the Court’s decision–it would not be in their favor.
One month after the argument, Walt was diagnosed with lung cancer. His diagnosis was terminal. “He told me God has to let him live to hear the decision, he wouldn’t be that cruel,” Al remembers. That wish came true, though the decision wasn’t the one they had hoped for.
Read the entire thing.
For your amusement:
(The AAA was the Agricultural Adjustment Act,which was invalidated in United States v. Butler).
(So much for the Justice as the umpire!)
(This one is really ironic because Lincoln also threatened to ignore the courts if they ruled against him).
Marvin M. Brandt Revocable Trust v. United States is a case that (perhaps) only property professors can enjoy. In another installment in the lengthy “Rails to Trails” litigation, this case considers whether the government retains a reversionary interest in an easement that was granted, and abandoned, by a railroad.
In the mid-19th century, Congress began granting pri vate railroad companies rights of way over public lands to encourage the settlement and development of the West. Many of those same public lands were later conveyed by the Government to homesteaders and other settlers, with the lands continuing to be subject to the railroads’ rights of way. The settlers and their successors remained, but many of the railroads did not. This case presents the question of what happens to a railroad’s right of way granted under a particular statute—the General Railroad Right-of-Way Act of 1875—when the railroad abandons it: does it go to the Government, or to the private party who acquired the land underlying the right of way?
Writing for 8 Justices, Chief Justice Roberts notes that the Court previously adopted the position the Solicitor General successfully argued in 1942 (the SG in 1942 was Charles Fahy):
The Govern ment loses that argument today, in large part because it won when it argued the opposite before this Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States, 315 U. S. 262 (1942).
Yet, 70 years later the Government takes a different position.
Contrary to that straightforward conclusion, the Gov ernment now tells us that Great Northern did not really mean what it said. Emphasizing that Great Northern involved only the question of who owned the oil and min-
erals beneath a right of way, the Government asks the Court to limit its characterization of 1875 Act rights of way as “easements” to that context. Even if the right of way has some features of an easement—such as granting only a surface interest to the railroad when the Govern ment wants the subsurface oil and minerals—the Gov ernment asks us to hold that the right of way is not an easement for purposes of what happens when the railroad stops using it. But nothing in the text of the 1875 Act supports such an improbable (and self-serving) reading.
Roberts even finds this change of position “ironic”:
We cannot overlook the irony in the Government’s ar gument based on Sections 912 and 940. Those provisions plainly evince Congress’s intent to divest the United States of any title or interest it had retained to railroad rights of way, and to vest that interest in individuals to whom the underlying land had been patented—in other words, people just like the Brandts. It was not until 1988—12 years after the United States patented the Fox Park parcel to the Brandts—that Congress did an about face and attempted to reserve the rights of way to the United States. That policy shift cannot operate to create an interest in land that the Government had already given away.5
So now, the United States is estopped by positions taken 70 years ago on property issues.
More than 70 years ago, the Government argued before this Court that a right of way granted under the 1875 Act was a simple easement. The Court was persuaded, and so ruled. Now the Government argues that such a right of way is tantamount to a limited fee with an implied rever sionary interest. We decline to endorse such a stark change in position, especially given “the special need for certainty and predictability where land titles are con cerned.” Leo Sheep Co., supra, at 687.
Justice Sotomayor doubts that the government actually changed course, noting the critique is misplaced here
Even assuming that it is an injustice for the Govern- ment to change positions on an issue over a 70-year period, it is not clear that such a change in position happened here. Yes, the Government argued in Great Northern that a right of way was an “easement.” It proposed, however, that the right of way may well have had “some of the attributes of a fee.” Brief for United States in Great Northern R. Co. v. United States, O. T. 1941, No. 149, pp. 36–37. The Government contended that it is “ ‘not important whether the interest or estate passed be consid- ered an easement or a limited fee,’” observing that an easement “may be held in fee determinable.” Id., at 35–36 (quoting United States v. Big Horn Land & Cattle Co., 17 F. 2d 357, 365 (CA8 1927)). Indeed, the Government expressly reserved the possibility that it retained a rever- sionary interest in the right of way, even if the surround- ing land was patented to others. Brief for United States in Great Northern, at 10 n. 4. The Court is right to criticize the Government when it takes “self-serving” and contra- dictory positions, ante, at 12, but such critique is mis- placed here.
