Monday, October 10, 2011

Supreme Court Fall term preview; Obamacare, police Gps tracking and Illegal immigration

 A week after the traditional start of the Supreme Court's "Fall Term" on the first Monday in October, this year's court docket is shaping up to be a historical one in light of its potential for far reaching impact on the life of every single American.  This is primarily due to several watershed cases which the court is expected to rule on this term.  We therefore thought it appropriate to examine a few of the cases that some court watchers say will make the High Court's rulings this year the most important and momentous in decades, (perhaps even the whole 21st century!).

  First up, the High Court's decision to resolve the controversial "individual mandate" in Obamacare, (aka the "Affordable Care and Patient Protection Act," the Obama Administration's sprawling overhaul of the country's health care system).  A split between the Federal 11th and Sixth Circuit Courts of Appeal on this landmark legislation makes resolution of this matter not only a near certainty, but one with far reaching results for both the way government regulates (read "decides") not just the cost of health care, (and who will pay for it!), but the amount and kind of health care procedures Americans are entitled to receive in the future.

 Indeed, for the first time in history, a government bureaucrat will actually determine what procedures are medically necessary that individuals receive under their health plan, creating a potentially additional layer of interference between doctor and patient that many fear will end in health care rationing on an unprecedented level in an area which many feel insurance companies already have too much say in, (you can read our entire opinion on the dangers of Obamacare here).

  Of course, it goes without saying that whichever way the High Court comes down on this one, the ruling on Obamacare, expected to come next summer and smack dab in the middle of the 2012 re-election campaign of President Obama, will be an incredibly momentous and historical one in its likely impact on the 2012 elections, as well as on our health delivery system in this country in general.

  Second up, at least in potential impact on our republic in an equally contentious area of law, is the State of Arizona's anti-illegal-immigration bill S.B. 1070.  The Arizona bill, which aims to assist federal authorities and fill in the gaps on an out-of-control immigration problem that has inundated the Western state with Mexican immigrants in search of an American standard of living and accordingly overwhelming Southwestern states' like Arizona's schools and health care systems, (and, some say, taken American jobs at a time when employment is scarce), has never been allowed to take effect due to the Obama Administration (and others) immediately suing the state before it could.  

  And while we here at the ACLP don't feign to be experts enough in this area, nor do we have the time to definitively resolve such disputes, one matter is (indisputably!) not in dispute: The resolution of the legality of this law-- now copied by at least one other State, see here-- will have an enormous impact on the future of the states, (and our nation's for that matter), ability to protect itself from the effects of illegal immigration on our economic vitality and, in many ways, our very culture.   Moreover, we would be remiss approaching the presidential elections in 2012 not to mention that the matter has tangentially become an intense political issue recently due to a "gaff" of Texas Governor Rick Perry on related issues while debating Mitt Romney.

  In the Republican candidates debate in Orlando Florida on Sept 22, (see news here, and video of debate here, click on Sept 22 debate), Governor Perry responded that those who didn't support his policy in Texas of giving illegal immigrants in-state tuition at public universities didn't "have a heart," (video here), starting a furious debate within the Republican party on its immigration policy and, at least for Perry, accelerating a precipitous fall as front-runner of the Republican primary to a close race for second place with former businessman and CEO of Godfather's Pizza Herman Cain, (click here. Of course, not adequately addressed at the debate was the legal right of Arizona, which shares the second longest border with our neighbors to the South behind Texas, to pass its own laws, something that pro "states rights" candidate Perry might be expected to support).

  Watch for the resolution of this case's ability to potentially upend the Republican primary race for who will have the right to challenge President Obama in 2012 by-- depending on when the High Court resolves this case-- re-injecting this issue into the Republican campaign by summer, (if Perry can hold off Romney and Cain in the Iowa and early primary states long enough for the issue to remain relevant).

  Most important for our purposes is the potential impact of this case to determine the relationship between the states and the federal government on the immigration issue and to what extent, if any, they can work together to stem the tide of illegal immigration across our Southern borders, (the Obama Administration's legal position being that the Federal government alone under the Constitution's "Supremacy Clause" is the only level of government which has the right to pass legislation regulating this critical area).

  U.S. v. Jones is the last case of note and a matter of interest to us here at the ACLP-- as well as many privacy advocates around the country-- and regards the ability of the government to use increasingly powerful modern technology to invade average Americans private lives for less than compelling reasons.

  In light of those on the political left who seem to persistently believe that it is the political right which poses the biggest threat to personal liberty and that election of Barack Obama was the only antidote to a Patriot-Act promoting Bush Administration which they saw as invading the privacy rights of Americans, it is interesting that this case arises out of an appeal by the Obama Administration from the D.C Court of Appeals which overturned the conviction of a defendant on Fourth Amendment grounds after police affixed a gps device to track his movements without a warrant, (for pdf of court decision click here).  In other words, the Obama Administration is now arguing for less privacy of individuals and more authority for government surveillance of citizens.   Indeed, along with the continuation of Bush era policies re: indefinite detention of enemy combatants, the continued operation of Gitmo, continued, (indeed, increased!) use of predator drone strikes responsible for the taking out of terrorists like Anwar Al-Awlaki and continued economic malaise raising the chances of a 2012 Republican sweep it is not a good time to be a political liberal.  But I digress.

  On the merits of the police/gps cases the ruling of the D.C. Circuit contradicts that of another case, United States v. Juan Pineda-Moreno, in which the 9th Circuit Court of Appeals came to the opposite conclusion.  Indeed, just last year they upheld the right of police to place GPS tracking units on the cars of individuals without probable cause or a court order, (more in depth analysis of this case here).  

 The conflict between these cases in the Federal Circuit Court of Appeals makes resolution by the High Court necessary to clear up the issue, (one of the key purposes and reasons for the Supreme Court's intervention according to court rules).

  Legally, these federal rulings follow close on the heels of various state court rulings, the majority of which have ruled against the practice on Fourth Amendment grounds, see here, here, and here.  

  Most troublesome to us is the underlying premise of the 9th Circuit's decision, that individuals have little or  no "expectation of privacy" with regard to their vehicles on the public roads (or even parked in their own driveway in most cases!) such that would prohibit police from attaching such a tracking device, (in recent years a position of law increasingly expanded and used to legally justify everything from blanket "license check" roadblocks to "safe welfare" checks on children in custody disputes).

 Relying on a previous U.S. Supreme Court case, United States v. Knotts, in which the U.S. Supreme Court found a "beeper" tracking device constitutional, the 9th Circuit decision likened the police's conduct in tracking the movements of a suspected drug trafficker to that of detectives on a traditional "stakeout" or "tailing" a suspect.   The 9th Circuit essentially reasoned that since under Knotts an owner of an automobile using public roads, (and their driving habits of where and when they come and go), is entitled to no more an "expectation of privacy" under the Fourth Amendment than a person walking down a public street, the police's conduct in attaching a gps tracking device passed constitutional muster.  

  This ruling is interesting not only because it comes out of what is usually considered the nation's "most liberal" (and most reversed) Court of Appeals in the nation, (and thus makes an interesting switch in political as well as legal bedfellows from the usual state of affairs), but because it may provide us a glimpse into the views on such matters of the High Court's newest members, (Sonia Sotomayor and Elena Kegan, both appointed by President Obama in 2009 and 2010 respectively).

  Of course, what the Supreme Court will do with this case-- with two new Obama appointee judges who incidentally don't tip the ideology of the court in any particular direction as they replaced liberal-leaning justices-- is anyone's guess.

  However, keeping in mind that Knotts was decided on decidedly narrow grounds and the concurring decisions of Justices Blackman, Stevens and Brennan made clear their uncomfortability with both the treatment of certain precedents of the court and the broad terms of certain dicta of the Knotts decision, ours feeling is the odds are slightly against even that the High Court upholds the rights of the police in this case, (although the wild card here is Justice Antonin Scalia, who is known to be a maverick in certain areas of criminal jurisprudence and could easily tip the balance of the court).

  Indeed, although Scalia's strongest anti-police-power opinions have been in dealing with cases in which the text of the Constitution is crystal clear, (e.g. the constitution's guarantee re: Free speech or that an accused has the right "to confront his accusers" before he can lawfully be deprived of liberty), Scalia has frequently taken positions in favor of the liberty of individuals against expansion of governmental power, (shocking many on the left who believe that "conservatives" are all nazis with no respect for civil rights). For the record, and to shock and chagrin of our friends on the left of the political spectrum, our beliefs are to the contrary principled ones informed, and in fact strengthened, by a rock-solid belief in rights as immovable under the Constitution as we believe the words in its text are, a subject on which we reserve further examination for another day).

  In any case, and whichever way this one goes, with the potential to result in expanding the power of government at the expense of shrinking the privacy of individuals in our increasingly technology-monitored (and dependent) world, it cannot be doubted this case has the ability for immense change both to our American culture placing high value on being "free on the open road" as well as laying the groundwork for future intrusions into private life as technology expands.

  Of course, isn't that the rub?  How to not unduly hinder police in their important duties investigating criminals among us, a particularly needful and important job of the government, while at the same time not unduly threatening the rights of law abiding individuals, has always been a thorny balancing act.  This balancing act will only become more difficult, with its inherent moral and ethical dilemmas, (think movies like "Minority Report"), as time (and technology) march forward.

  We here at the ACLP will attempt to keep you apprised of such critical matters before the U.S. Supreme Court in 2011, and their impact upon our nation's political and civil freedoms.   jp

No comments:

Post a Comment