WAL-MART v. DUKES -- UNDERSTANDING CLASS ACTION LAWSUITS -- OR WHY THE WOMEN OF WALMART ARE NOT JUST LEFT TO FOLLOW THEIR INDIVIDUAL COMPLAINTS

Class Action law suits are  complex civil litigation cases, but not all complex cases will be class action litigation.  The fact of a large number of plaintiffs is only one factor a court must consider in certifying a class under Rule 23 of the Federal Rules of Civil Procedure.  In a nutshell Rule 23 requires a) numerosity, b) commonality, c) typicality, and d) adequate representation.  A) the class is so large that it is not practicable to join all the members in one lawsuit.  B) there are questions of law or fact common to the class.  C) the claims or defenses of the representative parties are typical of the claims or defenses of the class. D) the representative parties will fairly and adequately protect the interests of the class.

Rule 23 also provides structural safeguards.  In Wal-Mart v. Dukes, No.  10-277, 564 U.S. _____ (2011) the Court gives a lesson to lawyers about pleading Rule 23 litigation.  In this case the plaintiffs presented the issue of  backpay under Rule 23(b)(2).

          (2) the party opposing the class has acted or refused

          to act on grounds that apply generally to the class, so
          that final injunctive relief or corresponding declaratory
          relief is appropriate respecting the class as a whole   

Key to the plaintiffs' case is the argument that Wal-Mart has a de facto policy of discriminating against women through underpayment and refusal to promote on a basis consistent with the way Wal-Mart pays and promotes men.  This sounds, at first blush, like a Rule 23(b)(2) case.  But take a look at Rule 23(b)(3).

          (3) the court finds that the questions of law or fact
          common to class members predominate over any
          questions affecting only individual members, and
          that a class action is superior to other available
          methods for fairly and efficiently adjudicating the
          controversy. The matters pertinent to these findings include:

          (A) the class members' interests in individually

          controlling the prosecution or defense of separate actions;

          (B) the extent and nature of any litigation concerning the

          controversy already begun by or against class members;

          (C) the desirability or undesirability of concentrating

          the litigation of the claims in the particular forum; and

          (D) the likely difficulties in managing a class action.

Associate Justice Scalia delivered the opinion which was fully joined by Chief Justice Roberts and Associate Justices Kennedy, Thomas, and Alito and partially joined by Associate Justices Ginsburg, Breyer, Sotomayor and Kagan.  Ginsburg wrote an opinion which concurred in part and dissented in part.  The minority took exception to the majority's treatment of the commonality aspect of Rule 23, otherwise this is a 9-0 ruling.

Discussing Rule 23 (b)(1) and (2) Scalia said "Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impossible or unworkable, as in a (b)(1) class, or that the relief sought must perforce affect the entire class at once, as in a(b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action."

Rule 23(b)(3) is a less traditional, and less stringent, rule permitting class certification according to Scalia.  "Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)).  It allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre-dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.”" (emphasis added).

In a case like Dukes where all women who worked at Wal-Mart did not claim to belong to the class Scalia noted that only 23(b)(3) allows for potential litigants to opt out of the class.  Another benefit of 23(b)(3) is in the management of a fluid class.  The issue of backpay being owed to members of a mandatory class requires the District Court to make determinations of who was employed when.  The opt in or opt out features of (b)(3) provides for judicial economy. Due Process is served by 23(b)(3) where the plaintiff class seeks individualized monetary damages.  Scalia wrote: "In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here."

Scalia drives the due process point home by linking it with Title VII.  "Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimination, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A)."

For her part Associate Justice Ginsburg says too much 23(b)(3) analysis is going in to the majority's 23(a)(2) commonality.  She says the majority gets the cart before the horse.  "The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied”"  Generally, Rule 23(a) criteria are easily satisfied.  See, PREDOMINANCE OF COMMON QUESTIONS — COMMON MISTAKES IN APPLYING THE CLASS ACTION STANDARD, by J. Douglas Richards & Benjamin D. Brown, Rutgers Law Journal Vol. 41:163 -2009.

Ginsburg zeroes in on the majority's overreach. "“The Rule 23(b)(3) predominance inquiry” is meant to “test whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule23(b)(3)."

Dukes' massive class action lawsuit is dead.  Smaller class action suits are still available where the putative classes of aggrieved women winnow themselves into groups where the commonality requirements become, as Scalia would say, pellucidly clear.  Otherwise said, their similarities will be transparent. When commonality is transparent the 23(a)(2) requirements will be easily satisfied.  Litigation still requires proof. Smaller, more cohesive classes, will make it easier to drive the resolution of the legal issues to  clear conclusions. 

The size of these smaller classes will make them more manageable.  Although it is possible to have large class sizes without Rule 23 certification, my best guess is that the plaintiffs will regroup and proceed in waves of (b)(3) actions against Wal-Mart.  For their part Wal-Mart won what is due every litigant, a fair hearing on the individualized claims of the plaintiffs when and only if the common issues of law and fact are resolved in favor of the class.

If a winnowed group fail to satisfy the Rule 23 (a) and (b)(3) criteria the case moves on as a large complex civil litigation.  The risk of inconsistent results weighs heavily against requiring hundreds of thousands of women to each go it alone.

SAUSAGE MAKING IN THE KANSAS LEGISLATURE, OR HOW ANTI-ABORTION FORCES IN THE KANSAS LEGISLATURE BROKE THE RULES OF THE LEGISLATURE

In Kansas a bill becomes a law by being introduced into either the House or the Senate. The bill is referred to one or more committees of that chamber.  Hearings are held.  The legislation may be amended. The committee issues a report with either a pass or do not pass recommendation. The bill goes to the floor of the chamber, is placed on a calendar, gets debated, and passes or dies.  If it passes, the bill goes to the other chamber, is sent to committee, is reported out of committee, goes to the floor, gets placed on the calendar, is debated, and voted on.  If, while in the second chamber, the bill is amended, then the bill gets sent back to the originating chamber. 

The originating chamber can accept the amendments of the other body or reject them.  When those amendments are rejected the bill is sent to a conference committee to hammer out the differences,  The Conference Report goes to the second chamber. If they agree with the report the bill passes as amended in conference and gets sent back to the originating chamber where it is accepted or rejected.

The work of a "Conference Committee" resembles sausage making.  The conferees can cut and paste various slightly related bills into a final bill for passage.  Since the conferees have broad latitude the Kansas legislature has a rule applicable to each chamber.  Joint Rule 3 (f) provides that legislation crafted  into a conference report must first have passed in at least one chamber. 

In the waning hours of  the legislature anti-abortion forces bypassed Rule 3 (f).  Two House bills, neither of which passed either chamber, were grafted into HB 2075, an insurance bill.  Here is a brief history of the debacle.  

On May 12th the Kansas House of Representatives was opened by Chaplain Brubaker with a prayer asking that the legislature not force through legislation. At least that is what I took away from the prayer which is found on page 1182 of the Journal of the House.

Our Heavenly Father, I recently read how one might apply the principles of putting together a jigsaw puzzle to life and work. I pray these principles for our leaders today as they continue to wrap up the decisions of this session. Help them to not force a fit, if something is meant to be, it will come naturally. When things aren’t going well, encourage them to take a break. Things will look different when they return to it. Help them to look at the big picture. If they allow themselves to get hung up on small pieces it will lead to their frustration. Remind them that perseverance pays off. Every important puzzle goes together piece by piece. And lastly, may they recognize that anything worth doing will take time and effort. In Christ’s Name I pray, Amen.

The message fell on rocky soil.  The legislature was considering a bill on group insurance. This is a bill that has naught to do with abortion.  Or at least it was before anti-abortion legislators decided to tinker with the right of people to bargain for insurance coverage. 

House Bill 2075 was introduced by the House Committee on Insurance on January 24th. The action was taken by the Committee on Insurance at the behest of the Kansas Department of Insurance in response to a 2006 law requiring insurers to have antifraud initiatives reasonably calculated to detect fraudulent insurance acts. Those initiatives are not to be made public at the risk of tipping off potential fraudfeasors. HB 2075 would extend the sunset provision contained in this statute from July 1, 2011 to July 1, 2016.

There was nothing about abortion when HB 2075 was introduced.

On January 25th the House  sent the bill to the Committee on Insurance.  On February 22nd HB 2075 emerged from the Committee on Insurance with a recommendation for its passage.  Two days later the House, sitting as the Committee of the Whole, recommended passage of HB2075. on February 25th HB 2075 passed the Kansas House on a vote of 119 to 0.

March 2nd the Senate received and introduced HB 2075.  The next day HB 2075 was referred to the Committee on Financial Institutions and Insurance.  On March 14th the Committee on Financial Institutions and Insurance recommended passage of HB 2075 AS AMENDED.  Is this where the anti-abortion language was inserted?  No, and the anti-fraud provisions were dropped from the bill.

It seems that the Congress in passing the Dodd-Frank Wall Street Reform and Consumer Protection Act permitted the States to enter interstate compacts and establish procedures to allocate among the States the premium taxes paid to an insured’s Home State; and that each State adopt nationwide uniform requirements, forms, and procedures, such as an interstate compact, that provide for the reporting, payment, collection, and allocation of premium taxes for Non-Admitted Insurance.  Admitted insurance companies are licensed and regulated by a State's Department of Insurance.  Non-Admitted  insurance is available as a "surplus line" brokered through a specially licensed insurance agent.

On March 16th the Senate, sitting as the Committee of the Whole, passed over HB 2075 letting it retain a place on their calendar.  On March 21st the Senate, again sitting as the Committee of the Whole, took the measure through the paces and passed the bill as amended.  Here is the journal entry on passage of HB 2075:

HB 2075, AN ACT concerning surplus lines insurance; relating to the surplus lines insurance multi-state compliance compact; amending K.S.A. 40-246c and 40-246e and K.S.A. 2010 Supp. 40-246b and repealing the existing sections.

On the roll call the vote was 36 in favor, 3 opposed, with 1 member absent or not voting.  The bill passed the Senate, as amended. The bill moved to final passage, with a host of other bills, because the Senate declared an emergency. I don't recall any emergencies in Kansas on March 21st, other than the expiring legislative clock.

On March 28th the House "nonconcurred" in the Senate amendment to HB 2075. That means they wanted to go to conference committee to hammer out the differences between the two bills. The Speaker of the House appointed three members, Representatives Shultz, Hermanson, and Grant, to the conference committee.

On March 29th the Senate acceded to the House request for a conference and the President of the Senate appointed Senators Teichman, Masterson and A. Schmidt as conferees on the part of the Senate. 

Representative Clark Shultz.

Representative Clark Shultz is a Republican from Lindsborg, Kansas who has been in the legislature since 1997.

Representative Phil Hermanson

Representative Phil Hermanson is a Republican from Wichita, Kansas who has been in the legislature since 2009.

Representative Bob Grant

 Representative Bob Grant is a Democrat from Fort Scott, Kansas who has been in the legislature since 1991.

Senator Ruth Teichman

Senator Ruth Teichman, a Republican, has served in the Senate since 2001 and hails from Stafford, Kansas.

Senator Ty Masterson

Senator Ty Masterson, an Andover Republican, has served in the Kansas Senate since 2009.

Senator Allen Schmidt

Senator Allen Schmidt is a first term Democrat from Hays, Kansas.

The Conference Committee went into sausage making mode. The Senate amendments to HB 2075 were adopted in the language of HB2076. HB 2076 began its life as a bill about municipal pools. No, not the ones in which the kids swim, rather a vehicle where municipalities can pool their risk and obtain insurance. 

The Conference Committee inserted SB 14, the High Risk Pool for Children; SB 65, authorizing External Review Organizations for Health Insurance; and SB 85, Group Life policy requirements.  Then they deleted the provision that would have prohibited state employees (cafeteria benefits plans) from being eligible for coverage or reimbursement for elective abortions [originally introduced in 2011 HB 2293]. The Conference Committee Brief tries to explain.

The House Committee on Insurance amended the bill to include provisions that would require insurance policies issued or renewed on and after July 1, 2011, to exclude coverage for “elective abortions” (HB 2292, as introduced) and would prohibit state employees from using Flexible Spending Account dollars for elective abortions (HB 2293, as introduced).

Proponents of HB 2292 included Representative DeGraaf, Kansans for Life, and the Kansas Catholic Conference. Proponents of the bills generally indicated that the bill is intended to ensure that private citizens and businesses do not end up financing other person's abortions through premium payments. The proponents noted that seven states have passed similar legislation and individuals who want abortion coverage could purchase such coverage via a rider. A representative of Kansans for Life suggested an amendment to the definition of “abortion” in testimony.

Opponents of the bill included Planned Parenthood of Kansas and Mid-Missouri. The Planned Parenthood representative stated that the bill provides no consideration for the health of the mother and proposes an unworkable, impractical rider system. The representative also stated that, under the provisions of the Affordable Care Act, there are no taxpayer dollars that would be paying for elective abortion coverage in any private insurance plan sold in the exchange.

The Kansas Association of Health Plans submitted neutral testimony, stating that in a number of member plans, coverage is provided if this procedure is medically necessary and that decision is made by the provider. Further, some group plans have requested specific “opt-out” language (allows groups to opt-out of coverage for abortion, unless the life of the mother is at risk if she cannot carry to full-term or has an ectopic pregnancy). The representative's comments indicated that handling this opt-out clause or having a rider in the non-group market will make these policies difficult to administer.

Proponents of HB 2293 included Representative DeGraaf, Kansans for Life, and the Kansas Catholic Conference. Representative DeGraaf indicated that state employees have the option to set up a reimbursement plan tax-free for eligible expenses. The State of Kansas, as an employer, the Representative noted, can and should have the ability on behalf of taxpayers to outlaw the payment for and/or the reimbursement of costs associated with abortions by state employees under any State Employee Benefit Program.

Planned Parenthood of Kansas and Mid-Missouri appeared in opposition to HB 2293. The Planned Parenthood representative stated that the bill would ban state employees from using their own dollars, held in health savings accounts, to cover the cost of unreimbursed, legal medical care expenses and the bill seeks only to place more unnecessary burdens on women seeking abortion care.

Senator David Haley voted against adopting the Conference Report because the abortion language from HB 2292 and HB 2293 had never passed in either chamber of the Kansas legislature. He said:

MR. PRESIDENT: I vote “NO” on the conference committee report to HB 2075,
time-honored rules of the Kansas Legislature; specifically Joint Rule 3, Section F, of the Joint Rules of the House and Senate to, in this instance, insert new language (on
abortion based insurance policy riders) which has never passed either chamber is foul.....and cheats our honor. Sure, twenty-one of us can make a new rule here as we go along. But the eyes and ears of all law-abiding Kansans are watching and listening.
Perverting the rules of the Senate to subsidize any political agenda or issue cheapens the respect that each of us should demand of this body and this process. A “YES” vote on this measure dims the light in the chamber; tarnishes the gild. —DAVID HALEY

HB 2075 was passed by the Senate, the rules be damned, by a vote of 28 to 10.  One senator was present and passing and another one was absent or not voting.

HB 2075 was sent back to the House where it nearly died.  Representative Pete DeGraaf, [R-Mulvane], moved the House to adopt the conference committee report on HB 2075.  Representative Virgil Peck, [R-Tyro], offered a substitute motion to not adopt the conference committee report and that a new conference committee be appointed.  Peck prevailed and the new conferees were appointed. They are the same three who were previously appointed Schultz, Hermanson, and Grant.

Along comes Representative Rick Billinger, a first term Republican from Goodland.  Since Billinger voted for the  Peck motion he was able, under House Rule 2303, to offer a motion to reconsider the Peck motion.  Which he did. 

Topeka Democratic Representative Ann Mah took the floor on a point of order that HB 2075 violated Joint Rule 3 (f).  She was overruled by the Chair.  The Chair was sustained.  HB 2075 passed the House, the rules be damned, by a vote of 86 to 30.

H. Res. 292 - The House Wants U. S. Forces Out of Libya - OR IS THIS A PRETEXT FOR IMPEACHMENT?

House Resolution 294 is the Rule that brought  H. Res. 292 to the floor of the House.  H. Res. 292, introduced by Speaker John Boehner [R-OH], will prohibit President Obama from deploying ground troops in Libya except to rescue a member of the American military.

There was an hour of debate.  Representative Ileana Ros-Lehtinen[R-FL], the Chairman of the House Foreign Affairs Committee, controlled time for those in favor of H. Res. 292.    Representative Dennis Kucinich [D-OH] was in charge of  debate for those members opposed to the resolution.

This is kind of funny.  Representative Ileana Ros-Lehtinen was a staunch advocate of the use of military force against Libyan dictator Muammar Muhammad al-Gaddafi and his regime until President Obama took the action she urged. 

On February 22nd Ros-Lehtinen said "[t]he United States and all responsible nations should show in both word and deed that we condemn the Libyan regime’s actions and that we will not tolerate such blatant disregard for human life and basic freedoms. " 

Then on February 26th she added "The executive order freezing the assets of Libyan regime officials and blocking defense-related exports to Libya is a positive first step, but stronger penalties must be imposed in order to hold the regime accountable for its heinous crimes, and to prevent further violence against the Libyan people." 

Ros-Lehtinen went on to ask for that which Obama has given. "Additional U.S. and international measures should include the establishment and enforcement of a no-fly zone, a comprehensive arms embargo, a travel ban on regime officials, immediate suspension of all contracts and assistance which benefit the regime, and the imposition of restrictions on foreign investment in Libya, including in Libya’s oil sector," she said.

Now she controls debate on a resolution that is a complete about-face from her previously stated position.

The President fares no better with Kucinich.  The Rule, H, Res, 294 named Kucinich, or his designee, as the member in charge of debate. Remember, it was Kucinich who offered up H. Con. Res. 51 claiming that Obama is in violation of the War Powers Act. Kucinich is opposed to any involvement between our military and Libya.  Kucinich is also opposed to Boehner's H. Res. 292.  The Hill reported June 3rd that Kucinich does not see H.Res.292 as a substitute for H. Con. Res. 51.  The article,  by Mike Lillis, quotes Kucinich as saying "There are clear differences, and it is imperative that members clearly understand them because a consequence of voting for one (H. Res. 292) and not the other (H. Con. Res. 51) is an endorsement of the illegal and unconstitutional action that has been taken by the White House." Nonetheless Kucinich voted for Boehner's resolution.

Howard Berman [D-CA] rose in opposition to H. Res. 292.  He said:

There are two choices here. If the majority thinks that the President's initial efforts to stop a humanitarian catastrophe were wrong or that current operations in Libya do not have a compelling national security rationale, it should support Mr. Kucinich's approach and offer a concurrent resolution pursuant to section 5(c) of the War Powers Resolution requiring the removal of U.S. forces.

If the majority has concerns with Mr. Kucinich's approach, as many of us do, and believes terminating military action would have grave consequences for U.S. national security, it should simply authorize the use of force in Libya, incorporating the restrictions on ground forces that this resolution has, that the Conyers language in the DOD bill had. I would gladly join the Speaker in cosponsoring such an authorization of the limited use of force.

But pursuing a nonbinding House Resolution that takes potshots at the President and amounts to nothing more than a sense of the Congress is just an exercise in political gamesmanship. It is a pedantic effort to embarrass the President without taking any ownership for the policy of the intervention.

The majority, not the President, puts this body in a position of powerlessness through such toothless efforts. We are 60 days into this operation. Either we should authorize this action or terminate, not play around with reporting requirements.

The resolution is also confusing. It states that the President shall not deploy or maintain the presence of U.S. military units on the ground in Libya.

But as the majority well knows, U.S. military activities are limited to air operations and nothing more. So does this language mean the majority is okay with the current intervention in Libya? The majority seems to be raising a fuss while winking at the White House. That's not the way to legislate.

Finally, I object to the resolution because it is downright inaccurate. The resolution implies that there is no compelling national security rationale for operations in Libya. But U.S. interests are clear. They have been forcefully articulated by the administration and, ironically, by conservative advocates like Bill Kristol.

We are in Libya because we are averting a probable massacre against civilians. We are in Libya because our NATO partners need our help. Refusal to act there would send a message to NATO allies, who are putting their forces on the line in Afghanistan, that we are not a dependable partner. We are in Libya because our friends struggling for democracy in the Middle East are watching events there. If we failed to act, or worse, seek withdrawal today, what will we be saying to the activists in Tunisia and Egypt, whose fragile movements for democracy could be stifled by the destabilizing effect of a Qadhafi-led government remaining in power? And what message would we be sending to Assad and to other dictators and enemies about our staying power?

Let's not kid ourselves. A Qadhafi who is unleashed to commit acts of terrorism around the world will do so with unspeakable barbarity. We know Qadhafi's record of bloodshed, and we know his readiness to use terror, especially now that he has nothing to lose. I cannot think of a more compelling rationale for current operations in Libya.

I object to the characterization that U.S. national security interests and humanitarian objectives are incompatible. In Libya, it is quite clear that stopping murder and preventing a refugee crisis very much correspond with U.S. national interests.

Lillis reports support for Obama from Democratic Minority Leader Nancy Pelosi.  "Minority Leader Nancy Pelosi (D-Calif.) defended the White House on Thursday, arguing that both the Boehner and Kucinich proposals “do not advance our efforts in the region and send the wrong message to our NATO partners."   

H. Res. 292 came to a vote on June 3rd.  The resolution passed on Roll Call 411 by a vote of 268 to 145.

The White House said that "... we feel confident that, A, the President is executing a policy decision that he made in exactly the manner that he said he would; that our consultations have been consistent, and that we’re acting consistently with the War Powers resolution; and finally that we would welcome and support a resolution similar to or exactly like the Kerry-McCain resolution in the Senate."

The Kerry-McCain resolution is S. Res. 194 the pertinent part of that resolution follows.

Resolved, That the Senate--

(1) supports the aspirations of the Libyan people for political reform and self-government based on democratic and human rights;

(2) commends the service of the men and women of the United States Armed Forces and our coalition partners who are engaged in military operations to protect the people of Libya;

(3) supports the limited use of military force by the United States in Libya as part of the NATO mission to enforce United Nations Security Council Resolution 1973 (2011), as requested by the Transitional National Council, the Arab League, and the Gulf Cooperation Council;

(4) agrees that the goal of United States policy in Libya, as stated by the President, is to achieve the departure from power of Muammar Qaddafi and his family, including through the use of non-military means, so that a peaceful transition can begin to an inclusive government that ensures freedom, opportunity, and justice for the people of Libya;

(5) affirms that the funds of the Qaddafi regime that have been frozen by the United States should be returned to the Libyan people for their benefit, including humanitarian and reconstruction assistance, and calls for exploring with the Transitional National Council the possibility of using some of such funds to reimburse NATO member countries for expenses incurred in Operation Odyssey Dawn and Operation Unified Protector; and

(6) calls on the President--

(A) to submit to Congress a description of United States policy objectives in Libya, both during and after Qaddafi's rule, and a detailed plan to achieve them; and

(B) to consult regularly with Congress regarding United States efforts in Libya.

With the House claiming a violation of the War Powers Act and the President insisting that he is in compliance expect D.C. tensions to keep rising.  My best guess is that the Republicans suddenly changing policy positions is a pretext for impeachment.

 

CONGRESS IS CHALLENGING PRESIDENT OBAMA'S USE OF MILTARY FORCE IN LIBYA, AGAIN!

House Concurrent Resolution 51by Ohio Democrat Dennis Kucinich was drafted short and sweet.  Kucinich says that President Obama's use of American military might in Libya violates the War Powers Act.  Kucinich wants to pull our armed forces away from Libya.  There were 11 cosponsors to Kucinich's resolution.

The language of  House Concurrent Resolution 51 reads:

 
CONCURRENT RESOLUTION

Directing the President, pursuant to section 5(c) of the War Powers Resolution, to remove the United States Armed Forces from Libya.

Resolved by the House of Representatives (the Senate concurring),

 SECTION 1. REMOVAL OF UNITED STATES ARMED FORCES FROM LIBYA.

Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), Congress directs the President to remove the United States Armed Forces from Libya by not later than the date that is 15 days after the date of the adoption of this concurrent resolution.

50 U.S.C. § 1541 et seq. is the War Powers Act.  § 1541 (c) lists three available options a President, as Commander-in-Chief, for deploying America's military.  Those options are to ask the Congress for a declaration of war, engage pursuant to specific statutory authorization, or in response to a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Under the War Powers Act the President is required to give initial and regular reports to the Congress.  § 1542 says "The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations."

§ 1543 requires the President to make specific reports when there is no declaration of war. President Obama complied with this section of the War Powers Act with the following letter to the Speaker of House and the President of the Senate.

The White House

Office of the Press Secretary

For Immediate Release

March 21, 2011

Letter from the President regarding the commencement of operations in Libya

TEXT OF A LETTER FROM THE PRESIDENT TO THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE PRESIDENT PRO TEMPORE OF THE SENATE

March 21, 2011

Dear Mr. Speaker: (Dear Mr. President:)

At approximately 3:00 p.m. Eastern Daylight Time, on March 19, 2011, at my direction, U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya. As part of the multilateral response authorized under U.N. Security Council Resolution 1973, U.S. military forces, under the command of Commander, U.S. Africa Command, began a series of strikes against air defense systems and military airfields for the purposes of preparing a no-fly zone. These strikes will be limited in their nature, duration, and scope. Their purpose is to support an international coalition as it takes all necessary measures to enforce the terms of U.N. Security Council Resolution 1973. These limited U.S. actions will set the stage for further action by other coalition partners.

United Nations Security Council Resolution 1973 authorized Member States, under Chapter VII of the U.N. Charter, to take all necessary measures to protect civilians and civilian populated areas under threat of attack in Libya, including the establishment and enforcement of a "no-fly zone" in the airspace of Libya. United States military efforts are discrete and focused on employing unique U.S. military capabilities to set the conditions for our European allies and Arab partners to carry out the measures authorized by the U.N. Security Council Resolution.

Muammar Qadhafi was provided a very clear message that a cease-fire must be implemented immediately. The international community made clear that all attacks against civilians had to stop; Qadhafi had to stop his forces from advancing on Benghazi; pull them back from Ajdabiya, Misrata, and Zawiya; and establish water, electricity, and gas supplies to all areas. Finally, humanitarian assistance had to be allowed to reach the people of Libya.

Although Qadhafi's Foreign Minister announced an immediate cease-fire, Qadhafi and his forces made no attempt to implement such a cease-fire, and instead continued attacks on Misrata and advanced on Benghazi. Qadhafi's continued attacks and threats against civilians and civilian populated areas are of grave concern to neighboring Arab nations and, as expressly stated in U.N. Security Council Resolution 1973, constitute a threat to the region and to international peace and security. His illegitimate use of force not only is causing the deaths of substantial numbers of civilians among his own people, but also is forcing many others to flee to neighboring countries, thereby destabilizing the peace and security of the region. Left unaddressed, the growing instability in Libya could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States. Qadhafi's defiance of the Arab League, as well as the broader international community moreover, represents a lawless challenge to the authority of the Security Council and its efforts to preserve stability in the region. Qadhafi has forfeited his responsibility to protect his own citizens and created a serious need for immediate humanitarian assistance and protection, with any delay only putting more civilians at risk.

The United States has not deployed ground forces into Libya. United States forces are conducting a limited and well-defined mission in support of international efforts to protect civilians and prevent a humanitarian disaster. Accordingly, U.S. forces have targeted the Qadhafi regime's air defense systems, command and control structures, and other capabilities of Qadhafi's armed forces used to attack civilians and civilian populated areas. We will seek a rapid, but responsible, transition of operations to coalition, regional, or international organizations that are postured to continue activities as may be necessary to realize the objectives of U.N. Security Council Resolutions 1970 and 1973.

For these purposes, I have directed these actions, which are in the national security and foreign policy interests of the United States, pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.

I am providing this report as part of my efforts to keep the Congress fully informed, consistent with the War Powers Resolution. I appreciate the support of the Congress in this action.

BARACK OBAMA

§ 1544 of the War Powers Act triggers a sixty day period, in which the President must either get a declaration of war, or the Congress gives the President a sixty day extension, or the President can continue if the Congress is unable to convene. Congress

§ 1544 (c) is the vehicle Congress can use to pull the plug on the President's war making authority.  This is the section Representative Kucinich used as the basis for House Concurrent Resolution 51.  The House did not agree with Kucinich.  Roll Call Vote 412 saw House Concurrent Resolution 51 go down by a margin of 148 in favor to 265 opposed.  The vote totals on each side were widely bi-partisan with those opposed close to two thirds of those present and voting.  This kind of resolution requires a two thirds vote for passage. Nineteen Representatives were present but did not vote.

Although House Concurrent Resolution 51 failed, there is momentum in the House to force the President's hand.  House Concurrent Resolution 32 has been introduced by Florida Republican Thomas Rooney, with16 cosponsors.

House Concurrent Resolution 32 reads:

 
CONCURRENT RESOLUTION
 Expressing the sense of Congress that the President is in violation of the War Powers Resolution regarding the use of United States Armed Forces in Libya, and for other purposes.

 Resolved by the House of Representatives (the Senate concurring),

That the President is in violation of the War Powers Resolution regarding the use of United States Armed Forces in Libya and, if the President does not obtain congressional authorization for the use of the Armed Forces in Libya by June 19, 2011, the President should remove the Armed Forces from Libya and the region as soon as practicable after such date.

The difference between Kucinich's "15 days" to get out and Rooney's "as soon as practicable" exit strategy be enough to persuade the House to pass House Concurrent Resolution 32?  At this point a United Kingdom news service,  The Telegraph, is reporting  that "Col. Gaddafi pledged to never surrender and said he would fight to the death, just hours after NATO strikes targeted his Tripoli compound."  Maybe the question is whether Libyan tyrant Muammar el-Qaddafi will survive the next 12 days.  Or will Boehner keep Rooney's legislation bottled up thinking that his own H.Res. 292 will be the final word?

KANSAS' KEVIN YODER & THE GRAVEY TRAIN

Third District Freshman, Kevin Yoder, has earned a dubious distinction in D.C.  A collaborative reporting effort by OpenSecrets.org and The Fiscal Times lists Yoder as being in the top ten of House GOP freshmen who raised the largest share of PAC money throughout the 2010 election cycle.  Yoder came in eighth place.  He hauled in $448,525 from PACs.  The full report is on the OpenSecrets Blog at: http://www.opensecrets.org/news/2011/04/congressional-freshmen-saddled-with.html.

Yoder's been no slouch pacing his D.C. fundraising efforts through his first year in office. According to the Sunlight Foundation's Political Party Time Yoder has held four events.  On March 8th Yoder shared the limelight, but not the loot, with Illinois Republican Robert Dold and Arizona Republican Ben Quayle, son of former Vice President Dan Quayle.

Actually there was no limelight.  The dinner was held at a private residence within walking distance just northeast of the Capitol and a stone's throw from D.C.'s Stanton Park.  It is a typical Washington row house, built in 1910.  It has 6 bedrooms with 4½ baths.  That's good because you wouldn't want D.C. fat cats waiting in line at the john at this cozy soiree.

On April Fool's day Yoder wasn't pulling any pranks.  He took his "give me the money" campaign to another private residence.  This time he went just southeast from the Capitol to 412 First Street Southeast, a 3 bedroom 3 bath townhome.

May 12th Kevin Yoder took another stroll to pick up money.  The Fluor Corporation has a really nice townhouse at 403 East Capitol Street Southeast.  Just east of the Capitol this three story townhouse was built in 1850, has 7 bedrooms, and 5½ baths.  This dinner was hosted by Procter & Gamble, which has a sizeable plant at 1900 Kansas Avenue  in K.C.

Other hosts include John Simmons and Donna Stephens.  Simmons is a lobbyist at the law firm of Akin, Gump, Strauss, Hauer, & Feld, LLP. The Fluor Corporation is represented by Akin, Gump, et al.  Simmons is a former staffer for New York Republican Representative James T. Walsh.  Walsh retired at the end of the 110th Congress. Donna Stephens is a lobbyist for the Bayer Corporation which has two facilities in Yoder's district, an animal healthcare plant at 12707 Shawnee Mission Parkway in Shawnee Mission and a crop science facility at 17745 Metcalf Avenue in Stilwell.

Yoder emerged from his residential fundraising tour on May 25th going to the Republican's home base, the Capitol Hill Club.  This luncheon featured Alabama's Republican Representative Spencer Bachus.  Bachus voted for the Gramm-Leach-Bliley Act which Nobel laureate Joseph Stiglitz, believe helped create the 2007 financial crisis.  Bachus was also playing the market in 2007.  Wikipedia reports at http://en.wikipedia.org/wiki/Spencer_Bachus, that:

"In 2007, Bachus made trades with a number of short term stock options, betting that stocks would rise or fall for a quick profit or loss. Bachus made up to $160,000, including a bet in March that the stock market would drop that earned him between $15,000 and $50,000. Most members of Congress hold some stocks or mutual funds, but Bachus' rapid-fire trades are unusual for a leading member of Congress, particularly one with the key role of ranking member of the House Committee on Financial Services."

That's some "Special Guest" Yoder has in Spencer Bachus.  The going rate for the privilege of attending the events is $2,000 for a PAC Host; $1,000 for a Personal Host; $1,000 for a PAC lobbyist to attend; and $500 for person to attend.  

IDIOTIC

Anthony Weiner

Anthony Weiner [D-NY] confessed to tweeting a photo of himself, well he took a picture of  himself  in his underwear,  a close up shot of  himself.  Nancy Pelosi [D-CA] has called for an ethics investigation.

Anthony Weiner may be subject to a charge of behaving in a manner unbecoming a member of the House of Representatives.  The rule he may have violated says "[a]  Member, Delegate, Resident Commissioner, officer, or employee of the House shall conduct himself at all times in a manner that shall reflect creditably on the House." Article 1 Section 5 Clause 2 of the Constitution says "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member" (emphasis added).

I like Anthony Weiner and wish I had a Congressperson who voted the way he votes.  Nonetheless,  Anthony Weiner is, in regards to his tweet, an idiot.

Gentlemen, it is time to zip it up.

FLYING UNDER FALSE COLORS - THE DISGRACED JOHN EDWARDS

John Edwards

Former Democratic Vice Presidential nominee and candidate for President, John Edwards, has been indicted by a federal Grand Jury from the Middle District United States District Court of North Carolina.

It is alleged that Edwards used money from his failed primary campaign for the Democrat's 2008 Presidential nomination as a slush fund to pay off his mistress.  The lady in question is Rielle Hunter, she and Edwards produced a child from their illicit union.

The Washington Post's Jerry Markon reported "[t]he indictment, returned by a federal grand jury in North Carolina, says the illegal contributions paid for Hunter’s living and medical expenses, along with travel needed to shield her from reporters. Prosecutors said this violated federal election laws that limit individual contributions to a campaign and require reporting of donations."

John Edwards was a man of promise and potential.  Like many politicians who are unable to keep their pants zipped up, Edwards presented himself as a solid family man.  He was flying under false colors. He is in a heap of trouble now.

David Vitter

Infidelity and sexual indiscretion do not necessarily spell the end of a two-timing politician's career.  For reasons I do not understand the good citizens of Louisiana sent a notorious whore monger, David Vitter, back for another term.  Perhaps those living in the Bayou State felt their families were better keeping Vitter at a distance.   Vitter too flies under false colors, presenting himself as a Christian with strict moral values on the topic sexual mores.  Vitter demanded President Clinton's resignation after the Lewinski scandal.  Vitter reversed course when his sexual addiction to prostitutes became public.

Newt Gingrich

Former Speaker Newt Gingrich was also engaged in a meretricious relationship when he led House Republicans to impeach President Clinton.  Gingrich continues to covet the presidency.  I don't know if  he persists in cheating on his current wife.

Vitter and Gingrich had the good sense not to pay anyone off.  Edwards, whose brilliant legal career launched his political career, showed bad judgment if the allegations in the indictment are true.

John Esign

John Edwards' being charged in a criminal complaint must be giving former Nevada Republican Senator John Ensign a bout of insomnia.  It is alleged that Ensign, like Edwards, crossed the line in the payoff  for his extramarital affair with a staffer.  Ensign, some claim, was playing Nookie Hookey with a staffer whose husband, the alleged cuckold, was likewise employed by Ensign.  Money, it is reported, was paid to the former staffers from Ensign's enabling parents and Ensign got the alleged cuckold a job lobbying the Senate in apparent violation of federal law.

Harry Truman at the piano

I shed no tears for Edwards or Ensign.  I have no respect for Vitter or Gingrich.  I  am a liberal Democrat who looks at these things the way Harry Truman did.  Harry  said he had to make a choice early in life to be either a piano player in a whorehouse or become a politician.  Harry claimed fidelity to Bess but said he didn't blame any bee for getting a little honey on his stinger.  Truman said he saw little difference between playing piano in the bordello and professional politics.

Jimmy Carter

We can learn a lesson from our last Baptist Sunday School Teacher President.  Yes, Democrat Jimmy Carter admitted that he lusts after women, in his heart, everyday.  The difference between the moral Mr. Carter and Edwards, Ensign, Gingrich, Vitter, and others of their ilk is that Jimmy didn't act on his baser instincts. 

Jimmy Carter and Harry Truman flew under true colors.    

USA v. ARIZONA - THE SB1070 CASE ON APPEAL - PART NINE

Judge Bea concurs with the majority as to §§ 3 and 5(C) as to their result.  Where Bea differs with the majority is on §§ 2(B) and 6.  Section 2(B) pertains to Cooperation and assistance in enforcement of immigration laws; indemnification.  Section 6 is the Arizona SB 1070 provision permitting warrantless arrests.

Judge Paez, like Judge Bea pivots his legal analysis from a case called United States v. Salerno.  Paez sees the Salerno standard as requiring the challenger to establish that no set of circumstances exists under which the Act would be valid.  That's what I refer to as the inconceivable standard.

Judge Bea begins from the inconceivable standard. However Bea finds a set of circumstances under which no complexity existed, murder.  If an illegal alien commits murder then that alien is subject to murder. Bea fails to recognize that the sweep of Section 6 goes far beyond his hypothetical.  SB1070 is, under Bea's analysis surplusage.

 

Judge Paez immediately refutes Judge Bea in his footnote 20.  "Arizona argues that we should construe section 6 so as to require officers to confirm with federal authorities that an alien has committed a public offense that makes the alien removable before making a warrantless arrest under section 6. 

Even if we interpreted Section 6 as Arizona suggests, the provision would still permit more intrusive state arrests than Congress has sanctioned, because it permits arrests on the basis of misdemeanor removability, which Congress has not provided for in 8 U.S.C. § 1252c. Further, even if a law enforcement officer confirmed with the federal government that an individual had been convicted of murder—a felony that would clearly result in removability, see 8 U.S.C. § 1227(a)(2)(A)(iii)—Section 6 would still expand the scope of § 1252c by permitting warrantless arrests." (emphasis added).

Honestly, I have to say that Judge Bea seems to have gone far from orthodox legal analysis when it comes to his opinion regarding Section 2(B).  In his mind the States may assist federal law enforcement with immigration enforcement and no written agreement is needed.  Well, that's true.  But really Judge Bea, there is big difference between assisting and meddling.  I reckon that is why the federal statute outlined a set of perimeters for state assistance.  The cooperation between the federal government and the governments of the States is not limited by the federal statute.  Neither is the language in the federal statute carte blanche for the States to devise their own immigration schemes.

Judge Paez's opinion provides an example of cooperation in footnote 21.  "The dissent argues that “the Supreme Court explicitly recognized—in one of our California cases—that state police officers have authority to question a suspect regarding his or her immigration status.” Dissent at 4887 (citing Muehler v. Mena, 544 U.S. 93, 101 (2005)). The dissent mischaracterizes the issue in Mena and the facts of the case in order to make it appear relevant to the case before us now. The Court explained that “[a]s the Court of Appeals did not hold that the detention was prolonged by the questioning, there was no additional seizure within the meaning of the Fourth Amendment. Hence, the officers did not need reasonable suspicion to ask Mena for her name, date and place of birth, or immigration status.” 

 In summarizing the facts of the case, the Court explained that, 

“[a]ware that the West Side Locos gang was composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During their detention in the garage, an officer asked for each detainee’s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation.”  

Thus, contrary to the dissent’s contention, Mena did not recognize that state officers can enforce federal civil immigration law with no federal supervision or involvement." (emphasis added).

Unfortunately, Judge Bea pinned his Section 2(B) analysis to Lewis Carroll's Through the Looking Glass and What Alice Found There, in THE ANNOTATED ALICE: THE DEFINITIVE EDITION 213 (Martin Gardner ed., Norton Publishers) (2000).  Judge Paez refuses to follow Judge Bea into fantasy land. 

In his footnote 6 Paez says "We have carefully considered the dissent and we respond to its arguments as appropriate. We do not, however, respond where the dissent has resorted to fairy tale quotes and other superfluous and distracting rhetoric. These devices make light of the seriousness of the issues before this court and distract from the legitimate judicial disagreements that separate the majority and dissent." (emphasis added).

A dispute among the Circuits has reared its head during this case.  The majority's view conflicts with the Tenth Circuit's.  See United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999). In Vasquez-Alvarez, the Tenth Circuit affirmed the denial of a motion to suppress where the defendant’s “arrest was based solely on the fact that Vasquez was an illegal alien.”  The arrest did not comply with the requirements of 8 U.S.C. §1252c, and the defendant argued that the evidence found as a result of that arrest should be suppressed. The Tenth Circuit disagreed, holding that §1252c “does not limit or displace the preexisting general authority of state or local police officers to investigate and make arrests for violations of federal laws, including immigration laws.”

The majority says the pertinent part of the federal statute " Subsection (g)(10) neither grants, nor assumes the preexistence of, inherent state authority to enforce civil immigration laws in the absence of federal supervision. If such authority existed, all of 8 U.S.C. §1357(g)—and §1252c for that matter—would be superfluous, and we do not believe that Congress spends its time passing unnecessary laws."

Footnote 24 provides more detail on the lack of inherent power of the States. 

"The U.S. Department of Justice’s Office of Legal Counsel (“OLC”) issued a memorandum in 2002—at which time OLC was headed by then Assistant Attorney General Jay S. Bybee, now a United States Circuit Judge, as Arizona emphasizes—concluding that (1) the authority to arrest for violation of federal law inheres in the states, subject only to preemption by federal law; (2) a 1996 OLC memo incorrectly concluded that state police lack the authority to arrest immigrants on the basis of civil deportability; and (3) 8 U.S.C. §1252c does not preempt state arrest authority. 

"To conclude that §1252c does not preempt inherent state arrest authority, the OLC memo relies entirely on the Tenth Circuit’s decision in Vasquez-Alvarez—the logic of which we have already rejected.

"The dissent quotes from the 2002 OLC memo in claiming that § 1252c is not made superfluous by interpreting it to have no preemptive effect. We are neither persuaded, nor bound by the arguments in this memo. It is an axiomatic separation of powers principle that legal opinions of Executive lawyers are not binding on federal courts. The OLC memo itself demonstrates why this is: the OLC’s conclusion about the issue in the 2002 memo was different in 1996 under the direction of President Clinton, and was different in 1989, under the direction of President George H.W. Bush.

"The dissent also claims that “Congress has authority to enact legislation which is designed merely to clarify, without affecting the distribution of power.” The dissent cites language from the Reaffirmation—Reference to One Nation Under God in the Pledge of Allegiance, stating, “An Act to reaffirm the reference to one Nation under God.” Pub. L. No. 107-293 (2002). The dissent’s argument is unavailing, as § 1252c contains no reference to anything remotely related to a “reaffirmation” of a state’s alleged inherent authority to enforce the civil provisions of federal immigration law."

Another battle line was drawn on the question of inherent powers of a State.  Do the States have inherent power to arrest only for violations of federal criminal statutes, or do the State have authority to arrest for violations of federal civil statutes.  The Tenth Circuit favors inherent authority for both categories.  The Ninth Circuit does not see a legal basis for the States to go arresting persons for violations of the federal civil code.

I think Judge Bea's dissent was weak and far reaching.  Judge Noonan by contrast provided a far more serious, and seriously reasoned opinion.