Four days before a sweeping government surveillance law was set to expire last year, Sen. Dianne Feinstein, the chairman of the chamber’s Intelligence Committee, took to the Senate floor. She touted the law’s value by listing some of the terrorist attacks it had helped thwart, including “a plot to bomb a downtown Chicago bar” that fall.
“So I believe the FISA Amendments Act is important,” the California Democrat said before a vote to extend the 2008 law, “and these cases show the program has worked.”
Today, however, the government is refusing to say whether that law was used to develop evidence to charge Adel Daoud, a 19-year-old Chicago man accused of the bomb plot.
And Daoud’s lawyers said in a motion filed Friday that the reason is simple. The government, they said, wants to avoid a constitutional challenge to the law, which governs a National Security Agency surveillance program that has once again become the focus of national debate over its reach into Americans’ private communications.
“Whenever it is good for the government to brag about its success, it speaks loudly and publicly,” lawyers Thomas Durkin and Joshua Herman wrote in their motion. “When a criminal defendant’s constitutional rights are at stake, however, it quickly and unequivocally clams up under the guise of State Secrets.”
When he was in his late 20s, John Roberts was a foot soldier in the Reagan administration’s crusade against the Voting Rights Act. Now, as chief justice of the Supreme Court, he will help determine whether a key part of the law survives a constitutional challenge.
Memos that Roberts wrote as a lawyer in President Reagan’s Justice Department during the 1980s show that he was deeply involved in efforts to curtail the effectiveness of the Voting Rights Act, the hard-won landmark 1965 law that is intended to ensure all Americans can vote. Roberts’ anti-VRA efforts during the 1980s ultimately failed. But on Wednesday, when the Supreme Court hears oral arguments in Shelby County v. Holder, he’ll get another chance to gut the law. Roberts’ history suggests a crucial part of the VRA may not survive the rematch.
At issue in Shelby County is whether a major portion of the Voting Rights Act, called Section 5, is constitutional. Section 5 compels jurisdictions with a history of discrimination, mostly in the South, to ask the Justice Department for permission—preclearance, in legalese—before making any changes to election laws. Shelby County, Alabama, is arguing that Section 5 is an extreme measure that is no longer justified because racism is no longer the problem it once was. If Section 5 is overturned, voting rights groups say, the federal government’s ability to ensure Americans are not denied the right to vote on the basis of race—at a time when race has been used as a proxy for party identification—will be severely weakened.
Shelby County offers Roberts an opportunity to complete a mission he began three decades ago. When the chief justice was a young lawyer, in 1981, Southern legislators hoped an ascendant conservative movement could pressure Reagan into opposing an extension of the VRA. In June of that year, Reagan wrote a letter to Attorney General William French Smith requesting an “assessment” of the law.
If you are anxiously awaiting Monday’s kickoff of what many are calling the “Super Bowl of Constitutional Law”—the Supreme Court’s tackling of Obamacare—you may be looking for a layman’s explanation of this week’s events along with the possible outcomes.
First up, the Court will take on the issue of whether or not they should even be hearing a constitutional challenge to the individual mandate provision of Obamacare at this time. If you are following along with the audio transcripts (they will be available on Friday same day audio will be available each day), you may hear some discussion as to whether or not the entire question of the mandate is ‘ripe’ for review—meaning whether the case has been brought before the court prematurely.
At issue is a federal law, entitled the “Anti-Injunction Act”, which prohibits an individual or state from challenging a federal tax before anyone has actually had to write a check to pay that tax.
If the court were to decide that this law is applicable to the matters at hand, then the insurance mandate created in Obamacare—which will require those who fail to purchase health insurance to pay a penalty—would not be subject to a challenge until someone actually is required to pay the penalty sometime in the year 2015 (the mandate begins in 2014.)
At the outset of the litigation, the federal government (defending Obamacare) was supportive of the argument that the Anti-Injunction Act should apply as such a finding would delay a court ruling until 2015, at the earliest, thus giving the law some additional time to take effect and garner some public support.
However, after the first few Court of Appeals decisions on the Obamacare challenges were handed down, the federal government decided that they might as well go for a final ruling from the Supreme Court on all issues rather than waiting for another day. Accordingly, the government backed off its support for applying the Anti-Injunction Act—leaving nobody to challenge it as those who are seeking to have the ACA declared unconstitutional certainly were not going to support a delay.
Still, SCOTUS wishes to consider the issue. To do so, they appointed an attorney —not otherwise involved with the challengers or the government—to argue before them in support of applying the Anti-Injunction Act.