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(Talking Points Memo)   Five huge cases facing the Supreme Court this June   (talkingpointsmemo.com) divider line 226
    More: PSA, Supreme Court, Religious Freedom Restoration Act, Aereo, strict scrutiny, campaign finance, Massachusetts law, Justice Antonin Scalia  
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4539 clicks; posted to Politics » on 12 Jun 2014 at 9:35 AM (14 weeks ago)   |  Favorite    |   share:  Share on Twitter share via Email Share on Facebook   more»



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2014-06-12 11:59:45 AM

ArkAngel: Congress can be in session and not be able to do business.


Except that's not what we're talking about.  They weren't in session, they were starting the session.

If you define "going into session" as "doing business", then the one guy they had show up to start a session and immediately adjourn in less than a minute never the authority to start the session which prevented the recess appointments.
 
2014-06-12 12:03:57 PM

The_Six_Fingered_Man: Serious Black: it would presently be impossible for those members to respond to a quorum call in sufficient numbers to conduct business since we don't have Star Trek transporters or Harry Potter apparators.

Out of the 435 voting members of the House of representatives, 283 of them are from states that are east of Kansas City. That's more than a majority, and with charter jets, you could get all 283 of them back to DC in a matter of hours. Perhaps I am mistaken, but does the constitution or other statute stipulate how long a quorom call can last before it is determined to have failed?


I believe both chambers' rules currently say a quorum call, much like the roll call for a vote on a resolution, lasts fifteen minutes.
 
2014-06-12 12:04:30 PM

xkillyourfacex: Lord_Baull: re: recess appointments

If Congress does not want to do its job and approve presidential appointments, then I think there should be a maximum length of time before said appointment becomes automatic. This bullshiat of not approving people because they don't like the president is total crap. The nation voted for Obama a second time. Get over it.

The job isn't only to approve. It's also to disapprove. Either way Congress is doing its job.



They are doing neither.
 
2014-06-12 12:07:53 PM

ferretman: thamike: Conservative justices voiced considerable skepticism of the validity of the state's law as it relates to peaceful or quiet talk

There is absolutely nothing peaceful or quiet about an abortion clinic picket line.

Nor inside....Flowbee's are noisy...


Don't even get me started on the Cuisinart mixers.
 
2014-06-12 12:09:34 PM

Serious Black: The_Six_Fingered_Man: Serious Black: it would presently be impossible for those members to respond to a quorum call in sufficient numbers to conduct business since we don't have Star Trek transporters or Harry Potter apparators.

Out of the 435 voting members of the House of representatives, 283 of them are from states that are east of Kansas City. That's more than a majority, and with charter jets, you could get all 283 of them back to DC in a matter of hours. Perhaps I am mistaken, but does the constitution or other statute stipulate how long a quorom call can last before it is determined to have failed?

I believe both chambers' rules currently say a quorum call, much like the roll call for a vote on a resolution, lasts fifteen minutes.


So, even if all of the members were in the immediate DC area, it might take more than 15 minutes to get a majority required for a quorum.
 
2014-06-12 12:11:24 PM

Theaetetus: Gary-L: Article 1, Section 5. Clause 2:  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.

Article 2, Section 2, Clause 3:  The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Each House determines its rules.  The Executive office cannot tell a House, "Hey, you guys were recessed so what I say goes."

But if the House's rules say that they're never "in Recess", then does Art. 2, §2, cl. 3 have any meaning? Did the Founders intend that power to be de facto willed away?


I don't understand why this isn't the crux of the argument. Congress gets to pass a procedural rule that invalidates a portion of the constitution? Sounds incredibly fishy...
 
2014-06-12 12:13:30 PM
I fully expect religious views to win out on the contraception and abortion clinic cases. And, I fully expect Scalia to throw away privacy because OMG TERRORISTS!
 
2014-06-12 12:17:10 PM

Satanic_Hamster: Geotpf: The issue that might sway things here is that Hobby Lobby is apparently a closely held, family-owned company, whose owners apparently all have the same religious beliefs.

No, they're just shareholders.  If they wanted more control, they should have kept it as a LLC or even sole ownership.

Hate the legal hoops we let people go through so that they can still "own" a corporation without "owning" it.


Here's the part I don't get. The Hobby Lobby case is (as far as I understand it) that the owners don't want their money paying for something that their beliefs say is wrong.

But it isn't their money. It's the corporation's money. Just as the corporation's debts are not their debts - that separation of liability is (as I understand it as a non-lawyer) pretty much the whole reason for incorporating.

If it was some kind of general partnership then sure, it's their money. But it's not. You want the corporate veil to shield you from liability, then the funds held by the corporation are not yours. Same reason the Rigas family got in trouble with Adelphia - they were using corporate funds for personal use, and it wasn't their money.

But if it was that cut and dried, this wouldn't be before SCOTUS, so I must be missing something.
 
2014-06-12 12:17:14 PM

Antimatter: Geotpf: qorkfiend: Fireproof: Obvious point about Hobby Lobby that no one seems to have brought up: What if the business owner is Jehovah's Witnesses or somesuch that doesn't believe in any medical care whatsoever? Does that mean that providing medical insurance in even a life-or-death situation would be violating their freedom of religion?

Believe me, that point has been brought up many, many times during the Fark threads on the subject. But yes, I think the possibility of exactly these sorts of shenanigans, plus the whole absurd idea of allowing a corporation to have "sincerely held religious beliefs" in the first place (this in turn places the government in general, and the Court in particular, in the position of having to determine what is and isn't a "sincerely held religious belief", which is exactly the sort of situation the Founders were hoping to avoid) is the only thing that might stay the Court's hand. Hopefully John Roberts or Anthony Kennedy will have serious reservations about opening this particular can of worms.

The issue that might sway things here is that Hobby Lobby is apparently a closely held, family-owned company, whose owners apparently all have the same religious beliefs.

A company cannot have a religion, nor should its owners be able to force theirs upon the employees.


Yeah, but a person can.  And a person can run a business.  And that person, while performing his business, can refuse to do things contrary to his religion.

The issue here (legally) is if you get a few people to run a business who all have the same beliefs, do they lose the rights to their religious beliefs merely because more than one person owns the business?  I'm guessing the Supremes will say no.  I'm also guessing this will be limited to closely held companies where all the owners share the same religious beliefs (IE, not publicly traded companies).
 
2014-06-12 12:20:48 PM

thamike: DeaH: thamike: Conservative justices voiced considerable skepticism of the validity of the state's law as it relates to peaceful or quiet talk

There is absolutely nothing peaceful or quiet about an abortion clinic picket line.

Plus, if they are going to let cops search phones because there is a tiny probability that someone may detonate a bomb, there is an even higher probability that physical violence with be done to the clinic, its workers, or its patients. Kind of a double standard, I think.

Uh, I wasn't even talking about the cell phone searches.


No, but the courts are hearing both cases. The logic of one does not jibe with the logic of another. If we can majorly infringe on the 4th Amendment because of a miniscule risk of violence, why can't we we say, "Have all the free speech you want, as stated in the 1st Amendment, just do it 37 feet away from the clinic because there is a large risk of violence."
 
2014-06-12 12:22:09 PM

qorkfiend: Geotpf: qorkfiend: Fireproof: Obvious point about Hobby Lobby that no one seems to have brought up: What if the business owner is Jehovah's Witnesses or somesuch that doesn't believe in any medical care whatsoever? Does that mean that providing medical insurance in even a life-or-death situation would be violating their freedom of religion?

Believe me, that point has been brought up many, many times during the Fark threads on the subject. But yes, I think the possibility of exactly these sorts of shenanigans, plus the whole absurd idea of allowing a corporation to have "sincerely held religious beliefs" in the first place (this in turn places the government in general, and the Court in particular, in the position of having to determine what is and isn't a "sincerely held religious belief", which is exactly the sort of situation the Founders were hoping to avoid) is the only thing that might stay the Court's hand. Hopefully John Roberts or Anthony Kennedy will have serious reservations about opening this particular can of worms.

The issue that might sway things here is that Hobby Lobby is apparently a closely held, family-owned company, whose owners apparently all have the same religious beliefs.

Are they not registered as a corporation? I don't see any reason they should be treated any differently from any other corporation, regardless of whether or not the owners are members of a single family. The family, after all, is still free to practice their religious beliefs. They just can't a) transfer those beliefs (or, more accurately, a carefully selected subset of those beliefs that just happen to exempt them from their responsibilities under the law) to the corporation and claim that the corporation holds them sincerely and b) enforce those beliefs on their employees.


Under this logic, if a guy runs a business, and doesn't incorporate, his religion matters; but if the same person incorporates the same business, he has to ignore his religious beliefs.

I just can't see the Supremes ruling that merely becoming an LLC or S Corp means you lose your First Amendment rights in terms of the business.

(Obviously, then there's the second step from "one" person to "a few" people, but I don't think that will matter either, assuming everybody in "a few" has the same religious beliefs.)
 
2014-06-12 12:22:35 PM

thornhill: Karac: The Court will rule on the validity of a Massachusetts law that limits speech within 35 feet of an abortion clinic except for those passing by and employees of the clinic. The aim of the law, challenged is to ward off harassment of visitors to the clinic by anti-abortion protesters. It is challenged by Eleanor McCullen, a woman who argues that it violates her First Amendment right to free speech.

Outlook: grim for Massachusetts. Conservative justices voiced considerable skepticism of the validity of the state's law as it relates to peaceful or quiet talk. That includes Justice Anthony Kennedy, who is seen as a likely swing vote.

Concerning abortion clinic protesters, there is no such thing a peaceful or quiet talk.

There's an abortion clinic near my house; the protestors try to get as close and in the face of the women as legally allowed.


http://tosh.cc.com/video-clips/3qeh02/tosh-s-beats-by-dre-commercial
 
2014-06-12 12:23:14 PM

BMFPitt: So how about this for confirming cabinet members and various executive branch jobs.

If there is no up or down vote within 90 days, they can serve until the Senate says otherwise.

That wouldn't work for lifetime appointments to the federal bench, but at least it would be something.


That's a fine rule, but the argument is over what the constitution says.  You would need to amend it to change it.
 
2014-06-12 12:23:56 PM

ferretman: Lord_Baull: re: recess appointments

If Congress does not want to do its job and approve presidential appointments, then I think there should be a maximum length of time before said appointment becomes automatic. This bullshiat of not approving people because they don't like the president is total crap. The nation voted for Obama a second time. Get over it.

Congress's job is not to rubber-stamp Obama's appointments.....which is what you want.


Couldn't be more wrong.

Their job is to put appointments up for a vote, which they are refusing to do because they know the person will be confirmed or they will be made out to be obstructionist asshats when their reasons for not confirming are shown to be nonsense partisan hackers.

So they hold up the vote.

Care to try again?
 
2014-06-12 12:24:32 PM
Outlook: bad for the White House. Justices liberal and conservative were very skeptical that the president can define pro forma sessions as "recess" when the Senate does not define them so. If the justices agree with an appeals court decision, the power could be curtailed even further.


If they rule against Obama would the appointments made stand?
 
2014-06-12 12:26:01 PM

PawisBetlog: ferretman: Lord_Baull: re: recess appointments

If Congress does not want to do its job and approve presidential appointments, then I think there should be a maximum length of time before said appointment becomes automatic. This bullshiat of not approving people because they don't like the president is total crap. The nation voted for Obama a second time. Get over it.

Congress's job is not to rubber-stamp Obama's appointments.....which is what you want.

Couldn't be more wrong.

Their job is to put appointments up for a vote, which they are refusing to do because they know the person will be confirmed or they will be made out to be obstructionist asshats when their reasons for not confirming are shown to be nonsense partisan hackers.

So they hold up the vote.

Care to try again?


Hackery

Stupid autocorrect
 
2014-06-12 12:26:15 PM

PawisBetlog: Theaetetus: Gary-L: Article 1, Section 5. Clause 2:  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.

Article 2, Section 2, Clause 3:  The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Each House determines its rules.  The Executive office cannot tell a House, "Hey, you guys were recessed so what I say goes."

But if the House's rules say that they're never "in Recess", then does Art. 2, §2, cl. 3 have any meaning? Did the Founders intend that power to be de facto willed away?

I don't understand why this isn't the crux of the argument. Congress gets to pass a procedural rule that invalidates a portion of the constitution? Sounds incredibly fishy...


Congress, at the time, had to deal with part-time Congressmen. Men who went home after the session and took up their regular jobs, only to convene at certain points in time. Recess appointments permitted the President to appoint someone in this time frame rather than waiting months for Congress to reconvene. Now that Congressman is a full time job, perhaps the recess appointments clause is unnecessary as it pertains to how it originally operated. Members can be compelled to return to the chamber and can do so quite quickly. The members were compelled to return in 2005 by a certain date and time. There is no reason to believe that they could not be recalled again.

The recess appointment clause has been used, by both sides, rather judiciously to appoint persons that the executive feels could not pass the Senate's advice and consent. It is more of a political tool than a necessary one now.
 
2014-06-12 12:27:17 PM

Geotpf: BMFPitt: So how about this for confirming cabinet members and various executive branch jobs.

If there is no up or down vote within 90 days, they can serve until the Senate says otherwise.

That wouldn't work for lifetime appointments to the federal bench, but at least it would be something.

That's a fine rule, but the argument is over what the constitution says.  You would need to amend it to change it.


If the Senate is allowed to make a rule saying that they're in session when one person comes into the chamber, bangs a gavel one minute to open, and bangs it again the next to close, then why can't the Senate make a rule that they've provided consent for a nominee's appointment if there is no up-or-down vote from the full chamber within X number of days from their submission to the relevant committee?
 
2014-06-12 12:27:38 PM

The_Six_Fingered_Man: Now that Congressman is a full time job


BWAHAHAHAHAH!
 
2014-06-12 12:27:46 PM

DeaH: No, but the courts are hearing both cases.


Which still doesn't mean that one has f*ck-all to do with the other.
 
2014-06-12 12:28:27 PM

MisterRonbo: Here's the part I don't get. The Hobby Lobby case is (as far as I understand it) that the owners don't want their money paying for something that their beliefs say is wrong.

But it isn't their money. It's the corporation's money. Just as the corporation's debts are not their debts - that separation of liability is (as I understand it as a non-lawyer) pretty much the whole reason for incorporating.


i'm pretty sure i remember reading something saying the case being made by hobby lobby is that the corporation itself has religious freedom that is being infringed

i'll have to do some digging to verify, could just be shiatty blogs
 
2014-06-12 12:28:50 PM

Geotpf: The issue here (legally) is if you get a few people to run a business who all have the same beliefs, do they lose the rights to their religious beliefs merely because more than one person owns the business?


This line of argument is complete bullshiat. Someone who can't enforce their personal religious beliefs on their employees through a corporation hasn't lost anything. They are still free to practice their personal religious beliefs without interference.

Geotpf: he has to ignore his religious beliefs.


Um, no. He doesn't have to ignore anything, unless you're suggesting that someone who incorporates somehow loses the right to practice their personal religion. What he can't do is transfer his religious beliefs to a separate organization that he has created specifically to separate himself from his business.
 
2014-06-12 12:31:17 PM

Satanic_Hamster: Theaetetus: Saiga410: I think the case in hand was a known gang member and a simple traffic stop that led to a firearms charge.  That might be sufficient with a long chain of whatifs and maybe to explain the actions to jailbreak the phone.  The person is highly likely to have evidence of a crime and may had information on where they got the gun.

Freedom of association? I think "associating with this group means we don't need a warrant to search you" may be a wee bit unconstitutional.

Or better yet: Saiga, was is the need for police to do it RIGHT THEN.  If he's already in custody, what's the exigent circumstances to search the phone?  Why would you even suspect the phone would have information on the gun or an unrelated crime?  You can get a warrant to search the phone with a phone call or do it back on the station.

No one is disputing the right to search the phone of someone in custody, it's just that we'd like them to at least have a warrant to do so.


Actually they did not do it right then.  They booked him and then later in the day decided to rifle the phone.  I think the state is in the bad on this one but a definition of what the circumstances are to search the phone are needed.
 
2014-06-12 12:33:30 PM

Geotpf: Antimatter: Geotpf: qorkfiend: Fireproof: Obvious point about Hobby Lobby that no one seems to have brought up: What if the business owner is Jehovah's Witnesses or somesuch that doesn't believe in any medical care whatsoever? Does that mean that providing medical insurance in even a life-or-death situation would be violating their freedom of religion?

Believe me, that point has been brought up many, many times during the Fark threads on the subject. But yes, I think the possibility of exactly these sorts of shenanigans, plus the whole absurd idea of allowing a corporation to have "sincerely held religious beliefs" in the first place (this in turn places the government in general, and the Court in particular, in the position of having to determine what is and isn't a "sincerely held religious belief", which is exactly the sort of situation the Founders were hoping to avoid) is the only thing that might stay the Court's hand. Hopefully John Roberts or Anthony Kennedy will have serious reservations about opening this particular can of worms.

The issue that might sway things here is that Hobby Lobby is apparently a closely held, family-owned company, whose owners apparently all have the same religious beliefs.

A company cannot have a religion, nor should its owners be able to force theirs upon the employees.

Yeah, but a person can.  And a person can run a business.  And that person, while performing his business, can refuse to do things contrary to his religion.

The issue here (legally) is if you get a few people to run a business who all have the same beliefs, do they lose the rights to their religious beliefs merely because more than one person owns the business?  I'm guessing the Supremes will say no.  I'm also guessing this will be limited to closely held companies where all the owners share the same religious beliefs (IE, not publicly traded companies).


If you cannot preform the actions of your business, you don't need to be in business.  You cannot use your faith to deny other peoples rights or access to medical care.  The cooperation has a responsibility to its employees, regardless of the faith of the person filling out the paperwork.
 
2014-06-12 12:33:46 PM

Karac: The Court will rule on the validity of a Massachusetts law that limits speech within 35 feet of an abortion clinic except for those passing by and employees of the clinic. The aim of the law, challenged is to ward off harassment of visitors to the clinic by anti-abortion protesters. It is challenged by Eleanor McCullen, a woman who argues that it violates her First Amendment right to free speech.

Outlook: grim for Massachusetts. Conservative justices voiced considerable skepticism of the validity of the state's law as it relates to peaceful or quiet talk. That includes Justice Anthony Kennedy, who is seen as a likely swing vote.

Concerning abortion clinic protesters, there is no such thing a peaceful or quiet talk.


maybe some of those women,doctors or nurses need to stand their ground if they feel threatened.
 
2014-06-12 12:36:04 PM

sprawl15: MisterRonbo: Here's the part I don't get. The Hobby Lobby case is (as far as I understand it) that the owners don't want their money paying for something that their beliefs say is wrong.

But it isn't their money. It's the corporation's money. Just as the corporation's debts are not their debts - that separation of liability is (as I understand it as a non-lawyer) pretty much the whole reason for incorporating.

i'm pretty sure i remember reading something saying the case being made by hobby lobby is that the corporation itself has religious freedom that is being infringed

i'll have to do some digging to verify, could just be shiatty blogs


nailed it dot jpg

from reading the first few pages of argument, clemens comes right out the gate arguing that corporations should be considered persons under the RFRA
 
2014-06-12 12:36:05 PM

MisterRonbo: Here's the part I don't get. The Hobby Lobby case is (as far as I understand it) that the owners don't want their money paying for something that their beliefs say is wrong.

But it isn't their money. It's the corporation's money. Just as the corporation's debts are not their debts - that separation of liability is (as I understand it as a non-lawyer) pretty much the whole reason for incorporating.

If it was some kind of general partnership then sure, it's their money. But it's not. You want the corporate veil to shield you from liability, then the funds held by the corporation are not yours. Same reason the Rigas family got in trouble with Adelphia - they were using corporate funds for personal use, and it wasn't their money.

But if it was that cut and dried, this wouldn't be before SCOTUS, so I must be missing something.


Like I said, I dislike the fact we allow "fake" corporations to exist.  They behave exactly like they were still a sole ownership but with all the legal protections of being a corp.  They run the businesses like a sole ownership, they take the profits like them, but anything negative happens and they're just a corporation, they swear!

I guarantee you that Hobby Lobby's owners are using corporate money for their own benefit, because as far as they're concerned it's THEIR money.  They just have to be smart enough to disguise it as "compensation" for their jobs with the corp.

qorkfiend: Geotpf: The issue here (legally) is if you get a few people to run a business who all have the same beliefs, do they lose the rights to their religious beliefs merely because more than one person owns the business?

This line of argument is complete bullshiat. Someone who can't enforce their personal religious beliefs on their employees through a corporation hasn't lost anything. They are still free to practice their personal religious beliefs without interference.


And to add on:
Under that logic, were do you draw the line of how much control you have over your employees use of compensation?
 
2014-06-12 12:37:18 PM

thamike: DeaH: No, but the courts are hearing both cases.

Which still doesn't mean that one has f*ck-all to do with the other.


Really? Cases that deal with the Bill of Rights in relation to violence have nothing to do with each other? Logic is logic. Deciding to bend or break an amendment because there is a threat of violence is the same kind of thinking, sets the same kind of precedence. If the justices are willing to break the 4th Amendment (actually remove the protection) because, at some point in the future, a violent event might happen, they damned well better use that same precedent to bend the 1st (no one is stopping her free speech - just asking her to move 37 feet to do it, where it can still be seen and heard) because actual violence has already happened - a lot.

To pretend there is no relationship between these two cases is obtuse to the point of absurdity.
 
2014-06-12 12:38:53 PM

jst3p: Outlook: bad for the White House. Justices liberal and conservative were very skeptical that the president can define pro forma sessions as "recess" when the Senate does not define them so. If the justices agree with an appeals court decision, the power could be curtailed even further.


If they rule against Obama would the appointments made stand?


The appointments shouldnt and all the rule and regs developed under them should also be thrown out.....  but that is an even larger furrball so they are going to punt and Bush v Gore it and say just this one time the rulings and regs stand while the appointees are no longer serving.
 
2014-06-12 12:39:36 PM

sprawl15: arguing that corporations should be considered persons under the RFRA


Absent contextual definitions to the contrary, US statutes revert to the "Dictionary Clause," 1 USC 1, which states:

In determining the meaning of any Act of Congress, unless the context indicates otherwise-
...the words "person" and "whoever" include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals;


So, unless there is a definition within RFRA to define persons, it reverts to the standard definition of person, which includes corporations. To my knowledge, RFRA does not define persons.
 
2014-06-12 12:41:01 PM
5 issues that don't mean squat but to a handful of folks.
 
2014-06-12 12:44:19 PM

ArkAngel: Talk to Harry Reid. He's the one who invented pro forma sessions.


Moooooom!  He hit me first!
 
2014-06-12 12:45:45 PM

Mercutio74: That being said, what business do they have determining how their employees interact with a third party company? You might have a point if the owners of the Hobby Lobby actually had to go to the drug store and purchase birth control pills for their female employees. But that's not the case. They're engaging a private insurance company to administer the health care costs of the employees, the owners of the Hobby Lobby shouldn't even have knowledge of the medical concerns of their staff.


They don't, but that isnt the question being asked in this case.  You are supposing a scenario where one group infringes another group's right to healthcare.  The problem is that under the law of the US, there is no such right to healthcare.

Instead the issue is this - can the government force a group to do something that that group says is against their sincerely held religious beliefs.  Note, the employees are not in this equation, because of the way obamacare is written they are not granted any rights.  Companies are instead given an obligation to provide insurance covering certain treatments, including those that the company feels are violative of their faith.

Which is, alas, yet another reason why Single Payer would have been a better idea
 
2014-06-12 12:46:19 PM

The_Six_Fingered_Man: PawisBetlog: Theaetetus: Gary-L: Article 1, Section 5. Clause 2:  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.

Article 2, Section 2, Clause 3:  The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Each House determines its rules.  The Executive office cannot tell a House, "Hey, you guys were recessed so what I say goes."

But if the House's rules say that they're never "in Recess", then does Art. 2, §2, cl. 3 have any meaning? Did the Founders intend that power to be de facto willed away?

I don't understand why this isn't the crux of the argument. Congress gets to pass a procedural rule that invalidates a portion of the constitution? Sounds incredibly fishy...

Congress, at the time, had to deal with part-time Congressmen. Men who went home after the session and took up their regular jobs, only to convene at certain points in time. Recess appointments permitted the President to appoint someone in this time frame rather than waiting months for Congress to reconvene. Now that Congressman is a full time job, perhaps the recess appointments clause is unnecessary as it pertains to how it originally operated. Members can be compelled to return to the chamber and can do so quite quickly. The members were compelled to return in 2005 by a certain date and time. There is no reason to believe that they could not be recalled again.

The recess appointment clause has been used, by both sides, rather judiciously to appoint persons that the executive feels could not pass the Senate's advice and consent. It is more of a political tool than a necessary one now.


Sure, I'd agree that the original purpose of the Recess Appointments Clause is fairly irrelevant now that being in Congress is a full-time job and members of Congress can feasibly return to DC to conduct business within a day or two.

But consider the Electoral College. It was originally designed as a way to get the slave and free states on board together when slave states wanted to count their slaves for apportionment but not for voting and free states didn't want them to count for apportionment if they couldn't vote. That original purpose is completely irrelevant today now that the Thirteenth Amendment has banned slavery. Try to get rid of the Electoral College and you'll hear all kinds of arguments for why it's still necessary today that were never once brought up during talks about ratification.

I think the ability to make recess appointments is still necessary in cases where Congress simply refuses to hold an up-or-down vote on a nominee and leaves the position empty, like we saw with the National Labor Relations Board, the Consumer Financial Protection Bureau, and the seats on the DC Circuit Court. That denies the executive branch the ability to carry out the duly passed and signed laws of the country which is its constitutional duty.
 
2014-06-12 12:46:55 PM

qorkfiend: Um, no. He doesn't have to ignore anything, unless you're suggesting that someone who incorporates somehow loses the right to practice their personal religion. What he can't do is transfer his religious beliefs to a separate organization that he has created specifically to separate himself from his business.


Well, that is basically the question here: If I own a business, do my First Amendment rights transfer to that business?  I'm thinking the Supremes (probably in a 5-4 ruling) will say yes.
 
2014-06-12 12:47:41 PM

DeaH: Really? Cases that deal with the Bill of Rights in relation to violence have nothing to do with each other? Logic is logic. Deciding to bend or break an amendment because there is a threat of violence is the same kind of thinking, sets the same kind of precedence. If the justices are willing to break the 4th Amendment (actually remove the protection) because, at some point in the future, a violent event might happen, they damned well better use that same precedent to bend the 1st (no one is stopping her free speech - just asking her to move 37 feet to do it, where it can still be seen and heard) because actual violence has already happened - a lot.

To pretend there is no relationship between these two cases is obtuse to the point of absurdity.


There is nothing about how you are trying to change the subject of my post that has to do with my post.  You want to make a statement?  Make it on your own and stop riding mine.
 
2014-06-12 12:48:19 PM

Geotpf: Well, that is basically the question here: If I own a business, do my First Amendment rights transfer to that business? I'm thinking the Supremes (probably in a 5-4 ruling) will say yes.


As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.
 
2014-06-12 12:49:03 PM

MisterRonbo: But if it was that cut and dried, this wouldn't be before SCOTUS, so I must be missing something.


Unlike Adelphia, Hobby Lobby isn't a publicly traded company.  It is privately held.
 
2014-06-12 12:49:59 PM

elchip: Geotpf: Well, that is basically the question here: If I own a business, do my First Amendment rights transfer to that business? I'm thinking the Supremes (probably in a 5-4 ruling) will say yes.

As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.


As a Christian Scientist, I'm excited at the opportunity to be able to offer by employees insurance that only covers prayer assistance.
 
2014-06-12 12:50:13 PM

thornhill: The issue for SCOTUS is if they want to own the fallout of upholding the lower court's ruling, which would be the networks and especially sports leagues removing all of their content from broadcast TV and only making it available through cable.


For the time being, at least.  The digital television standard used in North America, ATSC, was updated a few years ago to include a new standard for portable handheld receivers: ATSC-M/H.  One of the things they included in it was support for encrypted over-the-air television.

Guess what network is now available as encrypted M/H channels in some cities?  The NFL Network.

The reason this is kinda important is because within the next decade, the ATSC standard is going to be updated for UHD.  And support for encryption is expected to be mandatory for all televisions.  In order to watch NFL games using an antenna, you may be required to purchase decryption keys for your television.  And they'll probably make it so that you can only install keys for "trusted devices" that can secure content from end to end, which'll probably mean you can't record that content using a standard DVR.

I could see some networks requiring a key just for regular programming, but not charging for it, just to make their channel incompatible with systems like Aero TV.
 
2014-06-12 12:50:18 PM

The_Six_Fingered_Man: Absent contextual definitions to the contrary


given the way the RFRA specifically is designed to roll back the clock to previous constitutional law (the sherbert test), what constitutes the proper context seems to be what they've been arguing about for the first 20 pages or so
 
2014-06-12 12:51:36 PM

mrshowrules: elchip: Geotpf: Well, that is basically the question here: If I own a business, do my First Amendment rights transfer to that business? I'm thinking the Supremes (probably in a 5-4 ruling) will say yes.

As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.

As a Christian Scientist, I'm excited at the opportunity to be able to offer by employees insurance that only covers prayer assistance.


As a Scientologist, I'm excited at the opportunity to be able to offer my employees insurance that only covers dictionaries.
 
2014-06-12 12:53:06 PM

Satanic_Hamster: I guarantee you that Hobby Lobby's owners are using corporate money for their own benefit, because as far as they're concerned it's THEIR money. They just have to be smart enough to disguise it as "compensation" for their jobs with the corp.


Again, Hobby Lobby isn't publicly traded.  There are no stockholders so corporate money IS their money.
 
2014-06-12 12:54:14 PM

Geotpf: The issue here (legally) is if you get a few people to run a business who all have the same beliefs, do they lose the rights to their religious beliefs merely because more than one person owns the business? I'm guessing the Supremes will say no. I'm also guessing this will be limited to closely held companies where all the owners share the same religious beliefs (IE, not publicly traded companies).


That is not the question presented per se, but such a ruling is not unlikely.  The present distinction that is being argued is for-profit vs not-for-profit, which if you look at it is a terrible distinction. 

The reason it is one of the bases of dispute is that there is long precedent that corporations can have sincerely held religious beliefs - there are many federal cases involving incorporated churches, religious charities, hospitals and the like.    Thus it cannot be argued that incorporation defeats such a claim.  So the government has been forced to argue that RFRA somehow has a hidden meaning that incorporates a profit based difference between corporations. 

The better argument, in my opinion, is similar to the one you fronted: that corporations can have sincerely held religious beliefs, but that on the whole they usually dont.  Determining whether a belief is sincerely held is a fairly common test for a federal court, and many times people fail it for the simple fact that the purported belief is a dodge or hustle to get around some law that the individual doesnt like.  The same is much more likley to be true w/r/t companies.  Thus, in the vast majority of the cases that could come up a publically traded company couldn't have a sincerely held belief because most such beliefs would violate the company's responsibility to its shareholders.
 
2014-06-12 12:56:34 PM

thamike: As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.

As a Christian Scientist, I'm excited at the opportunity to be able to offer by employees insurance that only covers prayer assistance.

As a Scientologist, I'm excited at the opportunity to be able to offer my employees insurance that only covers dictionaries.


As noted - this is one of the major flaws of the mandate especially given the massive protections given a sincere religious belief under RFRA.

/generally, in law, adding parties to a required relationship makes enforcement of that relationship harder
 
2014-06-12 12:57:59 PM

Teiritzamna: Thus, in the vast majority of the cases that could come up a publically traded company couldn't have a sincerely held belief because most such beliefs would violate the company's responsibility to its shareholders.


I should also note that this could not be argued in the case of Hobby Lobby because the government screwed the pooch and conceded without argument that the company had a sincerely held belief (even though there is lots of evidence that it does not)
 
2014-06-12 12:58:19 PM

Teiritzamna: thamike: As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.

As a Christian Scientist, I'm excited at the opportunity to be able to offer by employees insurance that only covers prayer assistance.

As a Scientologist, I'm excited at the opportunity to be able to offer my employees insurance that only covers dictionaries.

As noted - this is one of the major flaws of the mandate especially given the massive protections given a sincere religious belief under RFRA.

/generally, in law, adding parties to a required relationship makes enforcement of that relationship harder


As a Mormon, you've had too much coffee.
 
2014-06-12 12:58:22 PM

mrshowrules: elchip: Geotpf: Well, that is basically the question here: If I own a business, do my First Amendment rights transfer to that business? I'm thinking the Supremes (probably in a 5-4 ruling) will say yes.

As a Jehovah's Witness, I'm excited at the opportunity to be able to offer my employees insurance that doesn't cover blood transfusions.

As a Christian Scientist, I'm excited at the opportunity to be able to offer by employees insurance that only covers prayer assistance.


By definition, almost all religious beliefs are fairly silly if you think about them logically.  (There's an invisible man in the sky that watches over us and protects us except when he doesn't?  And he had a kid that was murdered and then became a zombie a couple days later?  If you eat pork a slightly different invisible guy in the sky will be mad at you?  If you are a woman and don't dress up like a blackface version of Caspar the Friendly Ghost a slightly different invisible guy in the sky will be mad at you?)

That doesn't change the fact that the First Amendment exists and protects them.
 
2014-06-12 12:59:49 PM

Teiritzamna: Thus, in the vast majority of the cases that could come up a publically traded company couldn't have a sincerely held belief because most such beliefs would violate the company's responsibility to its shareholders.


Right.  No matter what the result of the Hobby Lobby case, IBM or GE or GM will never be found to have sincerely held relgious beliefs.
 
2014-06-12 01:00:42 PM

sprawl15: The_Six_Fingered_Man: Absent contextual definitions to the contrary

given the way the RFRA specifically is designed to roll back the clock to previous constitutional law (the sherbert test), what constitutes the proper context seems to be what they've been arguing about for the first 20 pages or so


But yet that has nothing to do with the definition of a person as it relates to the RFRA. If there is not explicit textual definition for person within the RFRA, then it reverts to the definition given at 1 USC 1, which includes corporations.
 
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