In Defense of Clarence Thomas

(This piece was cross-posted at the HLPR blog, where I’ve been writing this semester, but I had long-ago intended it as part deux of the “In Defense of” series, which started with farm subsidies.)

I recently asked my Facebook network which Supreme Court justice, modern or historical, would they elect to partner with on a Constitutional Law final exam, assuming the justice had taken the class with them that semester. John Marshall, Oliver Wendell Holmes Jr., Robert Jackson, and William Brennan were predictable choices as powerful writers and influential molders of constitutional thought. Scalia, well-known for his bombastic style yet clear exposition of facts and law, was popular. Clarence Thomas received no votes. Perhaps it is to be expected that among the constellation of judicial stars, Thomas would pale in popularity–his legacy, after all, has yet to be defined. No doubt for others his judicial philosophy, hewing tightly to original intent and historical understanding, leaves progressive-minded comrades ill at ease. Yet if a motivating factor for unpopularity is Thomas’ silence at oral argument, I would ask my friends to reconsider.

Clarence Thomas joined the Supreme Court in October 1991. On February 22, 2006, Thomas posed a question during oral argument, and has stayed silent ever since. His silence has been the subject of much commentary and speculation, and perhaps inevitably, ridicule and accusations of un-intellectualism. This disparaging category of charges is unfair, and deserves some scrutiny.

In a piece on the fifth anniversary of Thomas’ silence, Adam Liptak of the New York Times quoted a law review article which opined: “If Justice Thomas holds a strong view of the law in a case, he should offer it . . . It is not enough that Justice Thomas merely attend oral argument if he does not participate in argument meaningfully.” One Huffington Post author, writing on important questions Thomas had asked, noted, “. . . Thomas’ silence has also left many casual observers — that is, ordinary American citizens — with the impression that the man either does not care about the cases or cannot intellectually compete with his colleagues.”

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Could Mitt Romney Repeal Obamacare by Waiver?

Presidential candidate Mitt Romney has repeatedly stated during the presidential debates that he would “direct the Secretary [of Health and Human Services] … to grant a waiver from Obamacare to all 50 states” once elected. Walking back a bit from the statement in a post on the National Review blog and in an editorial in USA Today, Romney said that his executive order would “pav[e] the way” for Obamacare waivers, directing federal officials “to return the maximum possible authority to the states” and mentioning that such an order would be “the first step” in his health care plans.

Could Mitt Romney repeal Obamacare on day one with a waiver to all 50 states? Some of Mitt’s supporters have claimed that he can, pointing to the more than 1,000 waivers granted by the Obama administration since the law has passed. As noted by Washington Monthly blogger Rick Ungar, however, the waivers received by states, companies, and labor unions during the Obama administration are temporary waivers, which cannot extend beyond 2014. These temporary waivers are meant to help states get in compliance with the law gradually and prevent excessive rises in health insurance premiums. None of the waivers have applied to the most controversial component of Obama’s health care proposal, the individual mandate, which won’t become law until 2014 anyway.

The Patient Protection and Affordable Care Act (ACA) does include more extensive waivers of the act’s requirements (including the individual mandate), called “waivers for state innovation,” but the Secretary of Health and Human Services’ ability to grant those waivers is more clearly defined by the statute. The legal requirements for “state innovation” waivers are set out in Section 1332 of the ACA. A number of the requirements make a categorical waiver for all 50 states seem highly dubious:

  • The statute requires states to apply for waivers, but goes even further than that, stipulating a number of requirements for state applications for waivers, including a “comprehensive description of the state legislation and program to implement a plan meeting the requirements for waiver,” a “10-year budget plan that is budget neutral for the Federal Government,” and extensive public notice-and-comment procedures before an application can even be submitted;
  • The law states the Secretary of Health and Human Services may grant a waiver request “only if the Secretary determines” that the state plan will:
    1. provide coverage that is “at least as comprehensive” as the coverage in the ACA;
    2. provide coverage and cost sharing protections against “excessive out-of-pocket spending” that are at least as affordable as the coverage in the ACA;
    3. provide coverage to a “comparable number” of its residents as the provisions of the ACA; and
    4. not increase the federal deficit.
  • The Secretary of Health and Human Services is required to monitor and evaluate state programs and report to Congress on them, to ensure that the requirements of the waiver process are being met;
  • States may only apply for “state innovation waivers” starting on or after January 1, 2017, making it even less likely that President Romney would be able to issue such waivers at least until a hypothetical second term;
  • The statute mandates that waivers expire after five years, so even a successful Romney waiver action would be unlikely to survive long after he was out of office.

It’s pretty easy to conclude, based on these provisions, that granting waivers to all 50 states on “day one” of a Romney presidency would be illegal. But the Obama administration, for its part, isn’t setting up a great precedent for such a contingency:

With a growing number of states rebelling against the No Child Left Behind law and stalled efforts in Congress to reform it, the Obama administration says it will grant waivers to liberate states from a law that it considers dysfunctional.

Representative John Kline (R-MN), chairman of the House Education and Workforce Committee, recently asked the Congressional Research Service about the legal authority for such waivers. The CRS responded with a memorandum outlining the legal issues involved with the Secretary of Education’s waiver authority under No Child Left Behind. Finding the Secretary’s authority to grant waivers under the language of the statute “very broad,” the memo finds that the Department of Education “appears to have the authority” to waive most of the provisions at issue in the Obama administration’s education proposals.

Could Romney’s waivers survive a legal challenge, or does the Secretary of Health and Human Services have similarly broad authority? Supporters of the Affordable Care Act can take some comfort in the stringent language of the statute, including its requirements that states provide health care coverage “at least as comprehensive” as that provided by the Act and that states must cover “at least a comparable number” of their residents as the Act would. Some of the legal analysis in the CRS memo may be instructive on this point:

The starting point in interpreting a statute is the language of the statute itself. The Supreme Court often recites the “plain meaning rule,” that, if the language of the statute is plain and unambiguous, it must be applied according to its terms. See, e.g., Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)

If Romney’s Secretary of Health and Human Services granted waivers in a way that contradicted the “plain meaning” of the Affordable Care Act, as interpreted by the courts, it would likely be struck down. This would seem to be the case where, as Romney seems to propose, waivers would be granted to states that do not apply for waivers or states that do not even attempt to create a plan for covering their residents as specified in Section 1332.

The CRS memorandum also notes that “reviewing courts have cited the Administrative Procedure Act (APA) as affording judicial authority to invalidate waivers” that are found to be “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law.” While courts give deference to federal agencies in determining whether an agency’s action was arbitrary and capricious, the CRS points to a case where the 9th Circuit Court of Appeals struck down a statutory waiver granted by the Secretary of Health and Human Services under Section 1115 of the Social Security Act. Section 1115 allows states to apply for waivers from the statutory requirements of welfare programs to implement pilot programs that further their stated goals.

In 1992, California proposed a “work incentive” reform to its state welfare system, a precursor to the welfare reforms that would later become law throughout the United States, and applied for a waiver under Section 1115 from requirements of the Aid to Families with Dependent Children (AFDC) program. The Secretary of Health and Human Services granted the waiver, and a group of residents receiving benefits under the AFDC program challenged it. The 9th Circuit found the grant of the waiver “arbitrary and capricious” in violation of the APA, in that

the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. (quoting Motor Vehicle Mfr. Ass’n. v. State Farm Ins., 463 U.S. 29, 44 (1983))

In particular, the court found that the Secretary of Health and Human Services did not take into consideration evidence submitted by representatives of residents receiving benefits of the plan’s danger to those residents. If a Romney Secretary of Health and Human Services were to fail to consider evidence mounted against a waiver, or violate other requirements imposed by courts under the APA, it would likely face a challenge on such grounds. Issuing waivers “on day one” of a Romney presidency would almost surely “rel[y] on factors which Congress has not intended it to consider,” even if review under the APA tends to be deferential (evidenced by the paucity of cases cited in the CRS report where waiver decisions were invalidated).

That said, the greatest barrier to a challenge to waiver decisions may not be the legal merits, but whether or not any plaintiffs in opposition to such a waiver have standing to sue. In the California welfare case, the individuals who faced benefit cuts after the California waiver clearly met the requirements that plaintiffs show (1) an “injury-in-fact” and (2) “causation” of the injury. The only question about standing in that case was whether a victory for the plaintiffs, sending the waiver decision back to the Secretary of Health and Human Services to consider the evidence presented by the plaintiffs, would fulfill the third prong of standing, “redressability.” But a waiver from the provisions of the Affordable Care Act (or for that matter, the No Child Left Behind Act) would not have as clear an injured party as a welfare recipient facing a loss of benefits. Who, then, would have standing to challenge Romney waivers?

Constitutionality of the Individual Mandate, and Regulating “Economic Inactivity”.

A friend of mine had dinner last week with one of her friends who was in town for the American Conservative Union’s Conservative Political Action Conference (CPAC), and asked for some tips on talking to a hard-core conservative about health care reform, especially in light of two rulings from federal judges in VA and FL that invalidate ACA in part, or in toto. Instead of sending her a list of articles that I had read, I thought I’d summarize my impressions in a blog post. (Apologies if you’ve read all these arguments elsewhere, already.)

For many conservatives, the central problem with the Affordable Care Act is the “individual mandate”. Prof. Randy Barnett, of Georgetown Law, wrote early on in an op-ed in the Washington Post:

But the individual mandate extends the commerce clause’s power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company.

But, as many more qualified legal scholars have noted, Congress does not rely on the Commerce clause alone. The power to “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”, while broadly conceived in such cases as Wickard and Raich, is being used to regulate the insurance industry–to create health care exchanges, to prohibit discrimination against preexisting conditions, etc. The idea that in order to have insurance we must have everyone participate–the so-called “individual mandate”–is empowered by the Necessary and Proper clause.

The owner of this home was taxed for inactivity.

Universal participation in health insurance was deemed necessary by Congress for the effective operation of that scheme, that is, the risk pool will be insufficiently large, or the elimination of preexisting conditions limits would encourage selection bias. As Prof. Tribe points out in a recent op-ed, it was necessary to Scalia, concurring in Raich, when the federal government quashed even small, purely intrastate marijuana operations: “Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances.” In the landmark case McCulloch, Chief Justice John Marshall writes: “Take, for example, the power ‘to establish post-offices and post roads’ [an enumerated power of Congress]. This power is executed by the single act of making the establishment. But, from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post-office, or rob the mail.” So even though postal carriers were not mandated by the Constitution, and even though Congress is not supposed to deal with intrastate commerce, both of those things are necessary to the achievement of Congress’ constitutional ends. That is, Marshall explained, if “the end be legitimate,” then “all means which are appropriate, which are plainly adapted to that end… are constitutional.”

Of course, as many people have pointed out, the government is not creating a “mandate” in the sense that it will jail you for your “economic inactivity”. It is going to tax your income if you aren’t paying health insurance premiums. So the part of the Constitution that specifically relates to the individual mandate is in fact the General Welfare Clause, whereby “Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…” And the decision on what constitutes “general welfare” is for the democratically-elected Congress to decide, not activist judges. Justice Cardozo wrote in Helvering v. Davis:

“The line must still be drawn between one welfare and another, between particular and general…There is a middle ground or certainly a penumbra in which discretion is at large. The discretion, however, is not confided to the courts. The discretion belongs to Congress, unless the choice is clearly wrong, a display of arbitrary power is not an exercise of judgment. This is now familiar law.”

So far we’ve talked about whether the government can regulate your “economic inactivity”, I also wanted to give an example in which government clearly does regulate your “economic inactivity”.

One example is blight law. In Virginia, for example, if a property is vacant, or subject to many complaints, or is in a dilapidated condition or lacks normal maintenance or upkeep, it may be subject to a blight declaration:

After the owner is notified that the property is blighted if the property owner does not remove the blight or present an acceptable plan to cure the blight within a reasonable period of time, under powers granted under the Code of Virginia, the County can declare, by ordinance, any blighted property as a nuisance and then compel the abatement of the nuisance.

If the owner or owners fail to abate the nuisance, the County may do so and charge and collect the cost thereof from the owner of the property in any manner provided by law for the collection of state or local taxes.

In San Francisco:

But if the property is privately held, the DPW will have to determine the owner’s name and then contact that person about the applicable code violations. The owner will receive a notice from the city giving him or her 30 days to clean up and/or repair the property. If the owner does not respond or comply, the DPW may go there and do the work, billing the owner for the services or placing a lien against the property for repayment.

Mike Dorf pointed out that governments can also mandate positive actions in other arenas: jury duty, schooling your children (state gov.), Selective Service, and even vaccination. Jury duty, for example, is necessary if the federal government is to provide the juries alluded to in the Bill of Rights, in the course of prosecuting federal crimes. And for the originalists out there, as early as 1792, Congress passed a militia act (since repealed) that required citizens between 18 and 45 to “provide [themselves] with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder”.

In the blight example these are state laws, but they derive that power from the same type of police or taxation powers as the federal government, and philosophically the theory is the same. So it’s clear that “economic inactivity” is still “activity” in the sense that your inaction can effect commerce generally–an unwillingness to maintain your property can be a nuisance and eyesore for a community, an unwillingness to educate your kids creates dumb citizens, and an uninsured person will impact the health care system by going to emergency rooms when they do get sick, or relying on family and friends to support them when they get ill. A 2008 Kaiser study finds that “the uninsured will spend $30 billion out-of-pocket for health care in 2008 while receiving $56 billion in uncompensated care, three quarters of which will be from government sources.” It is equally clear that the government can, and currently does, regulate “inactivity”, the government can compel behavior, and at the very least, the government can tax.

How to End Don’t Ask Don’t Tell–Without Republican Cooperation.

In the UK, gays can both marry and serve in the military. This did not prevent them from fighting alongside Americans in Iraq and Afghanistan.

:: Edit 10/12/10 :: Judge Phillips issued a worldwide injunction on the enforcement of Don’t Ask Don’t Tell. “U.S. Department of Justice attorneys have 60 days to appeal. Legal experts say the department is under no legal obligation to do so and could let Phillips’ ruling stand.”

It comes as no surprise to me that the Senate failed to make any headway in abolishing ‘Don’t Ask, Don’t Tell‘ this week. Yesterday, a successful Republican filibuster foreclosed a vote on a bill that would include the conditional ending of DADT, pending a military study and approval by the military and the president. For one, this policy was created and perpetuated by Congress. Federal law, in this case the National Defense Authorization Act of 1993 and subsequent iterations, prohibit anyone who “demonstrate(s) a propensity or intent to engage in homosexual acts” from serving in the military because “it would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.” This is notwithstanding the fact that 22 out of 26 NATO countries allow gays to openly serve in the military, and we trusted those countries to support and back-up our troops in Iraq and Afghanistan.

Second, advancements in civil rights in this country have often come out of the judiciary before legislatures, and popular sentiment, followed. It was the courts, after all, that desegregated schools for African-American children. It was the courts that struck down anti-miscegenation laws (my favorite case) and laws that discriminated against women. We turn to the courts to protect our homes from illegal searches and seizures, and the courts to uphold a woman’s right to an abortion. The courts protect our freedom of speech and of the press. In the arena of gay rights, it was the courts that struck down sodomy laws. It is not a shock that the courts should have to take up the rainbow standard once more and end discrimination against gays in the military.

Earlier this month, federal judge Virginia Phillips of the U.S. District Court for the Central District of California ruled, in Log Cabin Republicans v. United States, that the Don’t Ask Don’t Tell policy is unconstitutional and violates the 1st and 5th amendments after applying an intermediate scrutiny standard. In the absence of Congress affirmatively repealing DADT, this case presents an interesting legal avenue for getting rid of it–the U.S. Government should decline to appeal this ruling.

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The Wrongly Decided Injunction Against Embryonic Stem Cell Research Funding.

::Edit:: The injunction that was the subject of this post was reversed on appeal by the D.C. Circuit in Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).

On Monday, a federal court issued an injunction against NIH funding of embryonic stem cell research. This decision has severe impacts on ongoing and proposed research projects. Although labs that received grants and their disbursements for embryonic stem cell research will be able to spend the money they’ve already gotten, new grant application review has ceased, and annual renewals of existing awards have also been suspended. Additionally, NIH is still figuring out whether “no cost extensions”, a common request to spend disbursed money beyond the proposed project years, will be allowed. This injuction should never have been granted.

In 1996, Congress passed the Balanced Budget Downpayment Act, which contained a rider, the Dickey-Wicker Amendment, which prohibited the use of federal money in projects involving the creation of embryos for research, or research in which a human embryo is destroyed or discarded. From then on, the Amendment was included in every major appropriations bill involving the Department of Health and Human Services, most recently in 2009.

SEC. 509. (a) None of the funds made available in this Act may be used for–
(1) the creation of a human embryo or embryos for research purposes; or
(2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under 45 CFR 46.208(a)(2) and Section 498(b) of the Public Health Service Act [1](42 U.S.C. 289g(b)) (Title 42, Section 289g(b), United States Code).
(b) For purposes of this section, the term “human embryo or embryos” includes any organism, not protected as a human subject under 45 CFR 46 (the Human Subject Protection regulations) . . . that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes (sperm or egg) or human diploid cells (cells that have two sets of chromosomes, such as somatic cells).

HeLa cells have been maintained in culture since 1951.

Fortunately and unfortunately for scientists, Congress has a very limited understanding of scientific research. Embryonic stem cells are not taken from embryos each time an experiment is to be performed, just as cancer cells do not need to be freshly taken from a tumor every time they are studied in a lab. HeLa cells, for example, are the predominant cells used for study of human cell biology. The HeLa cells used in labs today around the world are all descended from a sample taken in 1951 from a patient with an aggressive cervical adenocarcinoma–Henrietta Lacks. Those cancer cells now constitute an immortal “cell line”, and can replicate indefinitely in vitro. Embryonic stem cells are similarly immortal. Once the original cell lines were established from embryos, no future embryos will be needed to replenish the stock of those cell lines. This was a loophole to the Amendment. Stem cell lines were created by private companies who destroyed embryos, but the researchers with government grants only used stock cell lines. It’s important to note that even after this loophole was established and basically continued as precedent, Congress took no steps to modify the language of their Amendment to remove this loophole. It’s also interesting to remember that even though HeLa cells were procured (basically stolen) from Henrietta Lacks in what would today be seen as a clearly unethical manner, no one argues that the use of HeLa cells (which is vitally important to biology research) should be discontinued as a sort of fruit of the poisonous tree.

In 2001, George W. Bush announced a policy of limited funding for stem cell research, in which embryonic stem cell lines created prior to 2001 could be funded. In 2009, Barack Obama lifted all limitations on embryonic stem cell research. The embryos used for creation of new cell lines would be sourced from only embryos created for in vitro fertilization reproductive purposes and were no longer needed, and were donated by individuals who gave voluntary written consent.

Like many interested parties, I do not believe this injunction should have been granted. As D.C. District Court Chief Judge Royce Lamberth writes in his opinion:

A preliminary injunction is “an extraordinary remedy that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion. Cobell v. Norton, 391 F.3d (251, 258 (D.C. Cir. 2004). A party carries this burden of persuasion by establishing: (1) that there is a substantial likelihood of success on the merits; (2) that the plaintiff would suffer irreparable injury absent an injunction; (3) that an injunction would not substantially injure other interested parties; and (4) that an injunction would further public interest.

The Court found that each of these weighed in favor of the plaintiff doctors. I want to skip 3 and 4 (because I think scientists and society have both clearly suffered from this injuction) and focus on 1 and 2.

I do not believe there was a substantial likelihood of success based on the merits. As quoted, the language of the Dickey-Wicker Amendment bans federal funding for projects involving “the creation of a human embryo or embryos for research purposes; or research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death.” As I stated above, most of the embryonic stem cells used in labs today have been derived from existing immortal cell lines created by other labs. There is simply not a need to destroy new embryos for the use of established cell lines, and so at a minimum an injunction should not apply to projects where there is no destruction of an embryo, simply the use of an old stem cell line, but only blocking the funding of new embryonic cell lines/destruction of new embryos. The embryonic stem cell lines approved by George Bush, for example, should continue to receive research funding. The Court writes that “ESC research is clearly research in which an embryo is destroyed. To conduct ESC research, ESCs must be derived from an embryo. The process of deriving ESCs from an embryo results in the destruction of the embryo. Thus, ESC research necessarily depends upon the destruction of a human embryo.” On the contrary, embryos had been destroyed and once depended on the destruction of a human embryo. It is entirely possible and most often the case that embryonic stem cell research may continue in which no human embryo is destroyed, by a private company or a federally funded actor.

Next we have the “irreparable injury absent an injunction.” The two plaintiffs in this case were Dr. James Sherley and Dr. Theresa Deisher. They are researchers of adult stem cells who claimed competitor standing; they were eligible to sue because the embryonic stem cell policy would “result in increased competition for limited federal funding.” To put it simply, I doubt these fine researchers will get NIH funding after this. Peer review of grant applications is already not only highly difficult to pass with many researchers struggling to receive funding–according to Science, “The NIH typically receives between 35,000 and 40,000 proposals a year, while the NSF gets roughly half that number. Only a quarter to a third of these proposals are ever funded”–but also highly political. The NIH review committee use five core review criteria: significance, investigators, innovation, approach, and environment. The reputation of the investigators plays a role in the grant review, as does it in peer review for scientific journals. Grant proposals must include a “Biosketch” with the CVs of the PI and other key personnel. I can’t think these plaintiffs helped their cases before the NIH review committee, especially when there is plausible deniability given the high rate of unapproved grant proposals, and given the past grant history of one of the plaintiffs, revealed below.

Interestingly, the plaintiffs had separate experiences in receiving NIH funding. I used the NIH RePORTER engine to search for historical grants given to these researchers (if you try this, make sure to expand the fiscal year search to all years, and uncheck the ‘active projects’ box). I’ve never really used this before, so I tested it by looking up the grant history of a professor I worked for at Columbia University, Dr. Darcy Kelley. She had multiple grants listed, all the way back from 1986, listed on the server; so it looks like RePoRTER gives both current and historic NIH grants. A search for Theresa Deisher, however, found no grants ever awarded. Dr. Theresa Deisher, who graduated with a PhD from Stanford in 1990, has never been awarded an NIH grant. Did she really suffer competitively from any embryonic stem cell funding? After two decades of futility, I don’t think this stunt will help her in her quest for NIH money. Side note: Deisher is clearly also in this for religious, and not personal financial, reasons. She’s been trying to establish a connection between abortion, vaccines, and autism with funding from a pro-life group. On the other side of things is Dr. Sherley, who despite hunger-striking after being denied tenure by MIT, has managed to assemble a steady stream of NIH grants since 1988, including a grant in 2010. Has he really suffered from embryonic stem cell funding after Bush’s 2001 policy, and Obama’s 2009 policy? I think standing should have been denied to these plaintiffs, one of whom couldn’t get a grant before competition from ESC  researchers, and one of whom got grants in spite of them. There is no evidence to show that their success or lack thereof in obtaining grants was changed in any way by Bush’s or Obama’s policies.

The U.S. Department of Justice will appeal this incorrect decision to the DC Circuit Court of Appeals, and regardless of how one feels ethically about the use of embryonic stem cells, I think the scientific fact and legal background makes the correct ruling quite clear. Hopefully there can be a speedy review and decision from the D.C. Circuit that will restore funding to embryonic stem cell researchers, and they can continue their important work in battling the diseases that plague humanity.

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The Supreme Court and Baseball.

Justice Alito, Phillies phanatic.

As a baseball fan, I was pleased to read the NY Times’ article yesterday highlighting some of the current Supreme Court justices’ connections with the venerable American pastime–baseball. Nominee Elena Kagan is a New York Mets fan, while Bronx-bred Sotomayor is a New York Yankees fan. The article relates a fun story about Breyer (Red Sox fan) organizing a welcoming party for Samuel Alito (Phillies fan). As Alito remembers it, “He opened the door and the Phillie Phanatic came in and gave me a big hug. And it was great.” Aww.

A story about Justice Stevens’ early history with the game testified to the senior jurist’s advancing years. Jeffrey Toobin penned the tale in a tribute piece in The New Yorker earlier this year:

On a wall in Stevens’s chambers that is mostly covered with autographed photographs of Chicago sports heroes, from Ernie Banks to Michael Jordan, there is a box score from Game Three of the 1932 World Series, between the Yankees and the Cubs. When Babe Ruth came to bat in the fifth inning, at Wrigley Field, according to a much disputed baseball legend, he pointed to the center-field stands and then proceeded to hit a home run right to that spot. The event is known as “the called shot.”

“My dad took me to see the World Series, and we were sitting behind third base, not too far back,” Stevens, who was twelve years old at the time, told me. He recalled that the Cubs players had been hassling Ruth from the dugout earlier in the game. “Ruth did point to the center-field scoreboard,” Stevens said. “And he did hit the ball out of the park after he pointed with his bat. So it really happened.”

Stevens has a reverence for facts. He mentioned that he vividly recalled Ruth’s shot flying over the center-field scoreboard. But, at a recent conference, a man in the audience said that Ruth’s homer had landed right next to his grandfather, who was sitting far away from the scoreboard. “That makes me warn you that you should be careful about trusting the memory of elderly witnesses,” Stevens said. The box score was a gift from a friend; Stevens noticed that it listed the wrong pitchers for the game, so he crossed them out with a red pen, and wrote in the right names.

This meticulousness is evident in Stevens’s judicial writing.

There were a few stories that I was surprised the author did not touch on, however. In discussing the high frequency of baseball analogies in legal writing (by law-makers and law-appliers alike), the author failed to mention the pithy remark from John Roberts at his Senate confirmation hearings: “I will remember that it’s my job to call balls and strikes and not to pitch or bat.” It was a metaphor that not only sparked much commentary in the immediate aftermath, but extended into Sonia Sotomayor’s hearing, as this Gawker video compilation and this YouTube clip illustrate:

The other major relationship between the Supreme Court and Major League Baseball has been the latter’s preferential treatment at the gentle and accommodating hands of the former. Just this past week, the Supreme Court held in American Needle v. NFL, in a unanimous decision, that the NFL was not exempt from the Sherman Antitrust Act prohibiting anti-competitive cartel collusion. The NFL cannot decide as a group which single company would hold the license to manufacture merchandise for all NFL teams, and the decision may broadly impact a wide range of NFL policies–from TV rights, to marketing, and perhaps even free agency.

Baseball fans need not worry, however, because the Court has affirmed the MLB’s unique exemption from the Sherman Antitrust Act on three separate occasions. No other sports league is similarly exempted.

In one of a brilliant justice’s most flawed pieces of legal reasoning (second only, in my opinion, to this), Oliver Wendell Holmes wrote for a unanimous court in Federal Baseball Club v. National League (1922):

The business is giving exhibitions of base ball, which are purely state affairs. It is true that in order to attain for these exhibitions the great popularity that they have achieved, competitions must be arranged between clubs from different cities and States. But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and must arrange and pay for their doing so is not enough to change the character of the business. According to the distinction insisted upon in Hooper v. California, 155 U.S. 648, 655 , 15 S. Sup. Ct. 207, the transport is a mere incident, not the essential thing.

If future commerce clause decisions depended on Holmes’ reasoning, our nation would look far different today. Really? An organization dedicated to transporting groups of players from one city, to another city, and charging for tickets for their show is not involved in interstate commerce? According to Holmes, it wasn’t, and was thus shielded from federal antitrust meddling. Holmes’ tenuous legal ground was upheld in 1953 in Toolson v. New York Yankees, largely on the basis of deference to Congressional inaction to correct the problem. Yet when antitrust cases came up soon after in boxing and football, on nearly identical facts and transportation requirements, they received far different treatment.

In U.S. v. International Boxing Club, the Court could not bring itself to overrule Federal Baseball or Toolson, or to grant a similar exemption to boxing. Justice Milton wrote in a disbelieving dissent: “When boxers travel from State to State, carrying their shorts and fancy dressing robes in a ditty bag in order to participate in a boxing bout, which is wholly intrastate, it is now held by this Court that the boxing bout becomes interstate commerce.” In Radovich v. National Football League, a similar fate befell football. Justice Harlan wrote bitterly in dissent: “I am unable to distinguish football from baseball under the rationale of Federal Base Ball and Toolson, and can find no basis for attributing to Congress a purpose to put baseball in a class by itself…”

After generations of eminent scholars wrote in dissent against baseball’s monopoly on monopolistic behavior, the Supreme Court had a third swing at rectifying its error. But by 1972, it was too late. The aging slugger had signed too large of a contract to simply bench. The struggling pitcher had been given a no-demotion clause and just refused to leave. In Flood v. Kuhn, the Court revisited the question of baseball’s privileged position in sports. Harry Blackmun’s majority opinion read like a paean to a sport he clearly loved. Proceeding with a history of baseball’s formation (“It is a century and a quarter since the New York Nine defeated the Knickerbockers 23 to 1 on Hoboken’s Elysian Fields June 19, 1846…”), Blackmun decided to name… every single one of his favorite players and personalities:

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O’Farrell, Lefty O’Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

In discussing the petitioner, he reads like a fantasy baseball player, scouting for his next draft pick. “In those 12 seasons he compiled a batting average of .293. His best offensive season was 1967 when he achieved .335. He was .301 or better in six of the 12 St. Louis years. He participated in the 1964, 1967, and 1968 World Series. He played error less ball in the field in 1966, and once enjoyed 223 consecutive errorless games. Flood has received seven Golden Glove Awards. He was co-captain of his team from 1965-1969. He ranks among the 10 major league outfielders possessing the highest lifetime fielding averages.”

In reaching his decision, he finally vacated Holmes’ logic on interstate commerce–“Professional baseball is a business and it is engaged in interstate commerce.”–and was forced to rely on that old judicial crutch, stare decisis:

Even though others might regard this as “unrealistic, inconsistent, or illogical,” see Radovich, 352 U.S., at 452 , the aberration is an established one, and one that has been recognized not only in Federal Baseball and Toolson, but in Shubert, International Boxing, and Radovich, as well, a total of five consecutive cases in this Court. It is an aberration that has been with us now for half a century, one heretofore deemed fully entitled to the benefit of stare decisis, and one that has survived the Court’s expanding concept of interstate commerce. It rests on a recognition and an acceptance of baseball’s unique characteristics and needs.

The Supreme Court’s relationship with the sport of baseball is not merely a trivial matter for the sports fans to laugh over. It is an ongoing love affair that has lasted nearly a century, and shows no signs of abating. Our national pastime has also captured the hearts of our dear legislators in Congress, who have never managed to clarify the law once and for all, and even take advantage of the special protection to regulate, purify and perfect their beloved sport.

It seems, on the matter of baseball, our legal titans are incapable of fairly calling balls and strikes. And yet, as a Supreme Court junkie, and baseball devotee, I completely understand.

Richard Blumenthal and the Stolen Valor Act

On Monday, The New York Times published a shocking story on Richard Blumenthal, current Connecticut Attorney General, and frontrunner for the Democratic nomination for Chris Dodd’s Senate seat. On at least one occasion, Blumenthal suggested that he served in the Vietnam war.

“We have learned something important since the days that I served in Vietnam,” Mr. Blumenthal said to the group gathered in Norwalk in March 2008. “And you exemplify it. Whatever we think about the war, whatever we call it — Afghanistan or Iraq — we owe our military men and women unconditional support.”

In fact, Blumenthal obtained five deferments to avoid going to Vietnam, and as a member of the Marine Reserves never went abroad, instead conducting drills and performing community work in D.C. and New Haven. While the Times couldn’t find other examples of Mr. Blumenthal misrepresenting his service history, it did indict his campaign for failing to correct numerous mistakes in the press, with multiple news sources writing about his service in Vietnam. Politicians lying, even about their qualifications, is no new thing. But sometimes, lying can be illegal.

Unsurprisingly, some veterans are furious over this newest scandal involving military service exaggeration. Lies involving military service have become such an issue, particularly over Iraq and Afghanistan service, that Congress passed the Stolen Valor Act of 2005 (signed into law in 2006), which I first read a while ago as the subject of a constitutional/1st Amendment challenge in federal courts. According to this law:

Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.

The Day Newspaper of New London reported on one Vietnam vet, “standing in front of the state Capitol Tuesday morning, waving a U.S. Marine Corps flag on a white plastic pole, holding a white dry-erase board on which he had written the following slogan: Prosecute Blumenthal Stolen Valor Act” However, even Rob Simmons, a three-term Congressman from Connecticut and Vietnam vet who voted for the law, who has called for Blumenthal to apologize publicly to Vietnam vets, has said the law probably wouldn’t cover it. “Simmons, who voted for the act while a member of the House of Representatives in 2005, said he did not believe it would apply to Blumenthal’s remarks, since the law is narrowly tailored to affect those who falsely claim medals or other awards won in combat.”

From watching HBO’s The Pacific (which everyone should watch, great show), and researching some of the real-life characters this weekend, I found out that the military actually grants medals across the board for service in a particular war. Bob Leckie, for example, got the Asiatic-Pacific Campaign Medal, along with everyone else who served in the Pacific Theater during WWII.

There is a corresponding medal for Vietnam service, the Vietnam Service Medal, that was, at least according to Wikipedia,  “awarded to all members of the United States Armed Forces serving in Vietnam and contiguous waters or airspace thereover.”

Does saying “I served in Vietnam” represent that you received the medal automatically given to all those who served in Vietnam, and thus open the door for prosecution?

Technically, I think it does represent medal-winning, insofar as one intends to communicate the logical implications of a statement. If you say that you played on the 2009 World Series Championship Yankees, you are representing you have a World Series ring. If you say that you graduated from Harvard, it’s reasonable and expected for listeners to assume you have an actual degree from Harvard. Being awarded a World Series ring, a degree, and a service medal are all necessary conditions of their respective accomplishments. Since all the service medal demonstrates is physical presence, as a member of the military, in Vietnam, I think Blumenthal enjoyed the same functional benefit from saying he “served in Vietnam” as if he had worn the Vietnam Service Medal.

This probably isn’t enough for a prosecution, based on the legislative intent of narrow-tailoring and what seems like a simple misstatement by Blumenthal, who was otherwise careful to suggest that he only served during the Vietnam period. Still, if a state Attorney General and Senate candidate were ever prosecuted (under a Justice Department controlled by his own party, no less), or even threatened with prosecution, for misrepresenting military service, it would go a long way toward publicizing the problem of and punishment for stolen valor.

It’s interesting to imagine what could have happened if Blumenthal had been asked by an audience member at one of these rallies, “where do you keep your service medal?” or “were you harassed on the streets by protesters when they saw your Vietnam Service Medal on your uniform?” Depending on the answers, a political gaffe could have turned into a federal crime.


This story from the Huffington Post on Orrin Hatch’s amendment to the Stolen Valor Act that would ban false claims of military service pretty much confirms that from a legislative point of view, Congress did not think a false claim of service was covered by the original law.