Four Supreme Court Decisions Released - Decision On ObamaCare Expected Next Week

U.S. Supreme Court

Today in Washington, D.C. - June 22, 2012:
SCOTUS:
 The US Supreme Court issued four decision yesterday but not their expected ruling on the Federal Affordable healthcare Act, aka, ObamaCare.  The following decisions are not listed in any order of importance and more detailed information and links can be found at SCOTUS Blog.
1. Federal Communications Commission v. Fox Television Stations, Inc. - Docket No. 10-1293.
Holding: Because the FCC failed to give Fox and ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the FCC’s standards as applied to these broadcasts were vague.
Judgment: Vacated and remanded, 8-0, in an opinion by Justice Kennedy on June 21, 2012. Justice Ginsburg filed an opinion concurring in the judgment. (Sotomayor, J., recused.)
Another source, FoxNews said, The Supreme Court on Thursday ruled against the FCC's policy regulating curse words and nudity on broadcast television. In an 8-0 decision, the high court threw out fines and sanctions imposed by the Federal Communications Commission. The case involved some uncensored curse words and brief nudity on various networks, including Fox. "Because the FCC failed to give FOX or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionable indecent, the Commissions' standards as applied to these broadcasts were vague," the Supreme Court said in its opinion. The court said the FCC is "free to modify its current indecency policy" in light of the ruling.  The justices, though, declined to issue a broad ruling on the constitutionality of the FCC indecency policy. Instead, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC's NYPD Blue could give rise to sanctions. ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million. . . .

2. Knox v. Service Employees Int’l Union, Local 1000 - Docket No. 10-1121
Holding: The case is not moot, and the First Amendment does not permit a public-sector union to impose a special assessment without the affirmative consent of a member upon whom it is imposed.
Judgment: Reversed and remanded, 7-2, in an opinion by Justice Alito on June 21, 2012. Justice Sotomayor filed an opinion concurring in the judgment, in which Justice Ginsburg joined. Justice Breyer filed a dissenting opinion, which was joined by Justice Kagan.
Another source,  Courthouse News Service said, "A union trampled the free-speech rights of nonmembers by forcing them to finance political activities, the Supreme Court ruled Thursday.  California law allows public-sector employees to decline membership in a union, but such employees must still pay an annual fee to cover collective bargaining costs. Trouble arose in 2005 for the Service Employees International Union, Local 1000, however, when it sought to increase fees temporarily by 25 percent because it wanted to combat certain propositions up for election that year. . . . The SEIU and other unions wanted to raise $10 million to fight these measures, and looked to their ranks for the money. Some employees balked when the SEIU's general council implemented the proposed "back fund," and the union tried to placate these objectors by reducing their newly increased obligations by about 44 percent. Still unhappy, a group of nonunion members filed a class action on behalf of 28,000 forced to contribute to the back fund. . . . Though a federal judge sided with these non-union members at summary judgment, a divided panel of the 9th Circuit reversed in 2010. After the members brought their fight to Washington, the union defended the merits of its back fund and then offered all class members a full refund. It told the Supreme Court that the case was now moot, but the justices wouldn't bite  . . . Seven members of the court agreed that First Amendment required the SEIU to let nonmembers opt out of the special assessment intended for political lobbying . . ."

3. Southern Union Company v. United States - Docket No. 11-94
Holding: The rule established in Apprendi v. New Jersey – in which the Court held that the Sixth Amendment’s jury-trial guarantee requires that any fact (other than the fact of a prior conviction) which increases the maximum punishment authorized for a particular crime be proved to a jury beyond a reasonable doubt – applies to the imposition of criminal fines.
Judgment: Reversed, 6-3, in an opinion by Justice Sotomayor on June 21, 2012. Justice Breyer filed a dissenting opinion, which was joined by Justices Kennedy and Alito.
Another source, Forbes said, "Southern Union vs. U.S. . . . dealt with a seemingly arcane question of the law, whether a judge can impose a criminal fine against a company without a clear finding by the jury backing it up. The court said no, following up on its 2000 decision Apprendi vs. N.J. to rule that juries must determine beyond a reasonable doubt any fact that increases a criminal fine or a prison sentence. "

4. Dorsey v. United States - Docket No. 11-5683
Holding: The more lenient mandatory minimum provisions of the Fair Sentencing Act – which reduced the disparity between sentences for crack and powder cocaine offenses – apply to defendants who committed a crack cocaine crime before the Act went into effect but were sentenced after its effective date in 2010.
Judgment: Vacated and remanded, 5-4, in an opinion by Justice Breyer on June 21, 2012. Justice Scalia filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Alito joined.
Another source, the Washington Post said, "The Supreme Court ruled Thursday that Congress intended the more lenient sentences it created for crack-cocaine offenders to begin immediately, even for those who committed their crimes before the law was signed. The court’s 5 to 4 decision settled a question that Congress seemed to leave open when it passed the Fair Sentencing Act. The law narrowed the discrepancy in punishment between those convicted of crack-cocaine violations, who tend to be black, and those with powder-cocaine offenses, who tend to be white. Justice Stephen G. Breyer said the more lenient penalties apply to the thousands of people who violated the law before President Obama signed it on Aug. 3, 2010, but who were not sentenced until afterward. . . . .

Congress:
The House will reconvene on Tuesday.  Yesterday, the House passed H.R. 4480, Strategic Energy Production Act of 2012, aka, Domestic Energy and Jobs Act, by a vote of 248-163.  It provides for the development of a plan to increase oil and gas exploration, development, and production under oil and gas leases of Federal lands under the jurisdiction of the Secretary of Agriculture, the Secretary of Energy, the Secretary of the Interior, and the Secretary of Defense in response to a drawdown of petroleum reserves from the Strategic Petroleum Reserve.  The vote was predominately along party lines.  For the Bill: 229 republicans and 19 democrats.  Against the bill 158 democrats and 5 republicans. Not voting, 7 republicans and 14 democrats.

The Senate will reconvene on Monday, when it will vote on cloture on the motion to concur with House amendments to S.3877, the FDA user fee bill.

Yesterday, the Senate passed S. 3240, the farm bill, by a vote of 64-35.  While many may not be in agreement with this bill, it was a bi-partisan passed bill with members of both parties voting for and against the bill. Yesterday,&n they adopted a final amendment from Sen. Tom Coburn (R-OK) which had nothing to do with farming.  Coburn's amendment was to amend the Internal Revenue Code of 1986 to prohibit the use of public funds for political party conventions, and to provide for the return of previously distributed funds for deficit reduction.  As usual there were a great number of amendments offered during the debate on this bill and some others were not related to farming or agriculture.

Also yesterday, the Senate voted 96-2 to invoke cloture on the motion to proceed to (i.e. agreed to take up) S. 1940, the flood insurance bill.

Since Senate Republican Leader Mitch McConnell gave a major speech last week on threats to the First Amendment and free speech coming from the Left, liberals have predictably attacked him for the suggestions.

In a must-read column today, Washington Examiner executive editor Mark Tapscott makes the same point. He writes, “[T]he U.S. Supreme Court has consistently ‘ruled that Congress may not ban political speech based on the identity of the speaker,’ [McConnell] said. In other words, you cannot be silenced either because of what you say or who you are.

“But there is a growing movement among liberals -- found mostly but not exclusively in the Democratic Party -- to use government to intimidate and silence speakers based upon their identities. The DISCLOSE Act and related proposals are their preferred tool at the moment. DISCLOSE would require grassroots advocacy groups to make public the names of their donors. Transparency in government is clearly a virtue, particularly of financial contributors to congressional and presidential candidates. But like any other good thing, transparency can be hijacked and turned into a weapon of political oppression.”

Curt Levey, Executive Director of the Committee for Justice, lays out precisely the kind of tactics some on the Left have tried to use to silence conservatives in an op-ed for Fox News: “There is a growing threat to political speech in America,” warned Senate Republican leader Mitch McConnell in a speech in Washington, DC last week. “Sadly, a growing number of people on the left … appear to have concluded that they can’t win on the merits. So they’ve resorted to bullying and intimidation instead. McConnell focused on ‘an [Obama] administration that has shown an alarming willingness itself to use the powers of government to silence [conservative] groups.’ I focus here on the other half of the threat, intimidation and harassment by private groups on the left. . . . Most importantly from a constitutional perspective, groups on the left are increasingly enlisting the coercive power of government in their intimidation and harassment campaigns. When they do, they threaten the First Amendment’s guarantee that government shall not abridge the freedom of speech.”

Levy notes “The mentality of lawfare practitioners is illustrated by a Media Matters internal memo suggesting the organization ‘look into contracting with a major law firm to study any available legal actions that can be taken against Fox News … I imagine this would be difficult but the right law firm is bound to find some legal ground.’ . . . Lawfare’s most persistent practitioner . . . has targeted conservative bloggers . . . in part, by filing over 100 harassment claims against them in various courts. . . . In addition to the courts and White House, the left is turning to various agencies in the Obama administration for help in intimidating their opponents. Angered by the American Legislative Exchange Council’s support of "Stand Your Ground" laws, left-wing groups are coordinating a campaign against ALEC, which includes an IRS complaint challenging its tax-exempt status.”

Further, Levy points to “Citizens for Responsibility and Ethics in Washington (CREW), an organization handsomely funded by left-wing billionaire George Soros. . . . CREW is also urging the friendly FCC to revoke 27 broadcast licenses held by News Corp’s FOX Broadcasting Company. CREW cites phone hacking by News Corp in Britain, which didn’t involve FOX Broadcasting. Of course, CREW’s real concern is not ethics abroad, but ideology at home. Not content to harass Fox by using only one branch of government, CREW and its allies also sent a letter to Congressional committees demanding hearings on revocation of the licenses.”

As Goodman writes, “McConnell said it’s these attacks on private American citizens that has driven him to fight against the DISCLOSE Act and similar legislation. ‘They try to be involved in the political process and all of sudden they find themselves being chased by the IRS.’"

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