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The January Supreme Court Docket

The US Supreme Court is scheduled to hear oral argument in 12 cases in January. Of the twelve, four are of particular importance unless you count a copyright law case involving MGM and the movie “Raging Bull.” Two cases involve bankruptcy law and one involves tax law and I will not bore the reader with details of these arcane cases. There is also a case involving railroad right of ways that involves a law passed in 1875. Another involves the Fourth Amendment and whether police need corroborating evidence to stop a car for alleged drunk driving when the original “evidence” was an anonymous tip.

Of the four important cases, first up is the Noel Canning case which challenges the president’s recess appointment authority. Specifically in this case, Obama appointed several members to the National Labor Relations Board (NLRB), some of whom were decidedly pro-union since they had been counsel to unions. Frustrated with alleged GOP filibustering of his nominees, Obama appointed these members while Congress was technically in session in what is known as a pro forma session. This means that although the majority of the members of the Senate had departed for parts unknown, they maintained a presence in appearance only ostensibly to thwart any “recess appointments.” This was achieved by a parliamentary procedure utilized by the Republicans.

The Recess Appointment Clause was made part of the Constitution because how Congress convened in the early part of our history was much different than today. It was not until the early 20th century that Congress convened on a fairly full-time basis (although you could not tell that by today’s standards). The clause was included to make sure that important Executive Branch positions were filled when Congress was not in session for prolonged periods of time. In the past, these periods could be as much as six months. Technically, each Congress is split into two “sessions.” For example, we are in the 113th Congress and there is a 2013 and a 2014 session. The time period between each is known as an intersession recess and generally runs from about Christmas until early in January. No one disputes that should a vacancy occur in this time period, the president can make a recess appointment. Adding weight to this definition of a recess is the fact that both houses of Congress approve of a recess of greater than three days. However, Congress obviously does not meet in session during certain time periods the rest of the time, mainly around national holidays. These are known as an intrasession “recess.” It was during one of these periods that Obama made his appointments. As stated earlier, even though the Recess Appointment Clause provided a means to fill vacancies during the prolonged absence of the Senate, this was not a prolonged absence buttressed by the fact that the Senate was technically in a pro forma session.

The lower courts ruled against Noel Canning stating that the president has the authority to make appointments during the absence of Congress. Consider the ramifications of this circumvention of the Senate’s advise and consent role in Executive Branch nominations. All any president has to do is wait for a holiday in order to make a nomination for any office. Taken to its logical extreme, a nomination made after Congress adjourns on a Thursday and reconvenes on the following Monday would qualify as a “recess” using Obama’s logic. This is a somewhat important constitutional issue since it involves a serious attempted power grab by Obama. While it is true that past presidents have used this method, most of those appointments were “intersession.” Furthermore, past administrations have never advanced such a broad reading of the Recess Appointments Clause.

Given the change in Senate rules regarding the filibuster of Executive Branch appointments, some may argue that this is moot. But changing the rules after violating the spirit, if not the words, of the Constitution elevates this case’s importance. It is hard to see the administration prevailing here. Their guys may be on the NLRB and they may be allowed to stay there, but the Court will likely warn future presidents against this practice. Left unanswered is whether any rulings by the NLRB while its composition was technically “unconstitutional” are valid.

On Wednesday January 15th, the Court will hear a case out of Massachusetts involving a buffer zone around abortion clinics that kept pro-life protesters 35 feet away from entrances and walkways. In a previous case- Hill vs. Colorado- the Court ruled that an 8-foot buffer zone was constitutional in order to protect patients. This is not a case about the size of these buffer zones, nor is it one about abortion per se, although abortion clinics are the backdrop. This is, however, clearly a First Amendment free speech case where the state is clearly attempting to stifle or minimize a certain type of speech. Generally, these zones could be considered constitutional if they use the least restrictive means, advance a compelling state interest and are content neutral. The only area where the state’s argument hold any weight is in advancing their interest. Obviously, the safety of those patronizing a clinic is a valid state interest. It should be clearly mentioned that in this particular case, the protesters were in no way threatening or antagonistic. Their only “crime” was approaching people within the 35 foot zone. As for the least restrictive means, most likely this will boil down to some argument involving distances and using yardsticks.

The more important factor is content neutrality. In the Colorado case, that was the state’s saving grace as the Court then determined that the law was content neutral. Here, however, the law was specifically drafted to focus exclusively on any building where an abortion may be performed. Clearly, the intent was to stifle pro-life speech in these areas. Lest any reader come to the conclusion that the liberal wing will automatically side with the state, that is not always the case when free speech is involved. Furthermore, it needs to be noted that this Court has recently ruled in favor of broad free speech rights most notably in the Phelps vs. Snyder case involving organized protests at military funerals. It would be a sad day if the Court granted the Westboro Baptist Church greater constitutional protections than pro-life “protesters” peacefully handing out literature at an abortion clinic.

Another important case is Abramski vs. United States. In this case, Abramski, a retired police officer, purchased a gun in Virginia. As a retired law enforcement officer, he received a discount on that purchase. He filled out the necessary paperwork and noted that he was the purchaser. In reality, the gun was for his uncle who lived in Pennsylvania. In essence, this was a classic case of a straw purchase. Complicating matters is that the uncle completed the necessary paperwork to take possession of the gun, passed the background check and became its owner. The federal government prosecuted the nephew for lying on the original purchase.

This case is important since it impacts upon the legal transfer of firearms among family members. The reason for laws designed to cease straw purchases is to keep guns out of the hands of criminals and other miscreants. This was clearly not the case here. Under Virginia law, the gun was legally purchased. Under Pennsylvania law, the gun was legally transferred. The application for the firearm merely questions whether the person present is the purchaser of the gun; not what their intentions are regarding that gun, nor are there any stipulations that the “purchaser” keep the gun for a specified period of time, etc. Abramski followed the words and the spirit of the law and now finds himself prosecuted in the middle of the gun control debate. It would be one thing if he bought the gun knowing that his uncle was ineligible to own a firearm, but that is not the case here. This will be an important case in the debate over gun control and one can expect more cases that challenge gun control laws of this ilk.

The final case of importance is Harris vs. Quinn, a labor law case. Based upon an executive order by former Illinois governor Rod Blagojevich in 2003, he declared that rehabilitation home health care aids paid through Medicaid were employees of the state. However, these aids are hired and paid for by patients themselves. The Illinois law originally declared that they were employees of the Medicaid recipients. Once they became state employees, they were eligible to unionize, which they did and became part of SEIU, coincidentally a huge donor to the Blagojevich campaign. SEIU entered into a collective bargaining agreement with Illinois which required generous union dues be paid by the employees. Like any union, SEIU uses these dues for political purposes and donates generously to the Democratic Party.

Last term, the Court correctly ruled (in Knox vs. SEIU) that public employee union members could not be forced to pay union dues for non-union activity (that is, political advocacy). Governor Quinn then tried to bring 4,500 disability health care workers under the SEIU umbrella except this time, the workers voted against unionization. As a result, some workers sued the state and moved to enjoin SEIU from collecting dues- a case they lost in the lower courts. In essence, they are arguing that they are not state employees despite what the 2003 executive order decrees. The Supreme Court must now determine whether they are or are not state employees and that is the crux of the case.

Lest anyone miss the importance here, it has serious implications in the area of labor law and public worker unions. With declining union membership in the private sector, organized labor has targeted public workers for unionization. That is why unions like SEIU and AFSCME have grown in membership and power in the recent past relative to their counterparts in private industry and trades. Illinois is not alone in this trend when it comes to private, Medicaid-paid home health care workers. The Court has placed some limits on this trend and allows unionization in order to promote labor peace or eliminate “free riders” (people who benefit from a collective bargaining agreement but pay no union dues). However, in this case there was no labor unrest, nor was there any threat. In any case, neither situation applies when the “customer” (in this case, the Medicaid patient) controls important aspects of the employment relationship not the least of which is hiring and firing. In fact, these decisions are removed from the collective bargaining agreement and only pay (often dictated by Medicaid) and benefits are of importance.

If Harris prevails in this case, then it will halt or at least slow down the march of public worker unions to unionize other areas of the growing service industry sector. The complicating factor is Medicaid, a joint state-federal program. Although there is no federal stance on paper in this area, one suspects that the Obama administration supports the state of Illinois here. The bottom line is that by decree of an executive order, Illinois overrode the law and possibly ran roughshod over the constitutional rights of workers, decreased their pay in order to advance a political agenda workers may disapprove of, and forced unionization on workers when there was no demonstrated reason for unionization other than to swell the coffers of a generous campaign donor. Illinois may be a corrupt state, especially under Blagojevich, but this trend is happening in other states also. Since 2001, more than 12 states have done exactly what was done Illinois. Personally, I believe the votes are there on the Supreme Court to place a brake on these practices.

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