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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Thursday, October 27, 2011

Paul Clement: Have Bad Cause? I'll Be Your Advocate!

At the moment, he is defending both Arizona’s tough new law against illegal immigration and Congress’s prohibition against interstate recognition of same-sex marriages. And if, as expected, the Supreme Court soon announces that it will hear a challenge to last year’s health care law, it seems increasingly likely that it will be Mr. Clement who argues, in the thick of the 2012 campaign, that President Obama’s signature domestic achievement is unconstitutional.
I originally posted this quote alone, but upon re-reading it, the verbiage is questionable.

Justice Sotomayor's first opinion spoke of "undocumented immigrants" and Rudy Giuliani famously noted ("Mitt Romney's position of the hour" ... ha ha) that they are not guilty of a federal crime. The paper there noted his "literal definition of illegal immigration." This concern for "literal" definitions is selective and the felt need to flag it is suggestive. It is true that it is "illegal" to break civil requirements -- double parking isn't generally "legal," for instance. But, since the connotation here often is criminal, and the fact that some states are pushing to make them "criminal" in ways the Obama Administration opposes, it is notable. Colbert had a good segment on the matter on Wednesday's show.

"Congress’s prohibition against interstate recognition of same-sex marriages." It is appreciated that the more accurate "same-sex marriages" is used, but um, not really. DOMA does not "prohibit" interstate recognition. NY, e.g., recognizes same sex marriages performed in Connecticut. And, did so even before it performed their own. DOMA, basically redundantly, says this isn't mandatory. But, it surely doesn't "prohibit" it. And, that isn't what Obama is opposing. He is opposing another section that prohibits the application of federal benefits to the marriages in question. I guess, though it's a curious way to say it, this is in a way "literally" a barrier to "interstate recognition," to the degree federal benefits are "interstate," but really, is that what it implies?

The US Supreme Court website has linked to the briefs in the health care litigation, one of the lesser known aspects, such as this citation finder. Though I still find it premature, the betting man might say that the Supreme Court might take one of those cases this term (the beginning of next also would fall within the 2012 election cycle). It's about as likely as the Dolphins or the Colts or the Rams winning a game any time soon. Anyway, kudos on no "Obamacare," and "President Obama’s signature domestic achievement" works though again Congress had something to do with it. This solitary focus on "Obama" annoys me.

As to "is unconstitutional," technical pass -- only a few parts of it are being challenged, but there is an argument that it must fall completely all the same. So, ending the doughnut hole (what? you never heard about that? shocker) etc. isn't "unconstitutional" as such, but some want to toss the baby with the bathwater. One last tidbit -- "tough new law" ... well, that's an opinion. But, news articles generally do have opinions in them, including what is supposed to be totally objective statements, not just "he said/she said" business. Such is the nature of the beast, sorry if that is too messy for you.

But, it can be taken into questionable directions.