Understanding the Walmart decision

On Monday, the Supreme Court voted to not certify the anti-discrimination suit against the nations largest retailer.  Already, people are screaming that Walmart’s female employees are being denied their day in court.  However, it’s important to understand exactly what the decision to not certify the lawsuit really meant and, more importantly, what it didn’t mean.

For example, it didn’t mean that the Court doesn’t necessarily think that Walmart doesn’t discriminate.  It also doesn’t mean that the Court finds that discrimination is fine in private businesses.  It doesn’t find any of that.  After all, it can’t.  They declined to hear the case.

What the news really meant was that the lawsuit was attempting to cover just to many people.  Nothing more, nothing less.  An estimated 1.5 million women would have fallen under this class action suit.  The Court’s decision to not certify was because they felt that just to many women were covered with to broad a range of experiences.  In short, the Court said that they’d be better served with multiple lawsuits for smaller numbers of plaintiffs.  That’s it.

However, that hasn’t stopped the left from screaming.  For example, here’s Slate’s take on it:

Writing for the court’s five conservatives—and all but one of its men—Justice Antonin Scalia found that the women seeking to be certified as a single class did not have enough in common to go forward with the lawsuit en masse. Wal-Mart, the nation’s largest private employer, seems to have figured out that the key to low-cost discrimination lies in discriminating on a massive scale. In Scalia’s words, all these disparate women with their multiple claims about “millions of employment decisions” lacked sufficient “glue” to be permitted to move forward together.

SCOTUS strikes down discrimination lawsuit against Wal-Mart

The Supreme Court yesterday shutdown down a class action discrimination lawsuit against Wal-Mart, every liberal’s favorite store:

The Supreme Court ruled Monday that a sweeping gender-discrimination lawsuit against Wal-Mart Stores Inc. can’t proceed as one large class action, a significant victory for the discount retailer and other corporations.

The court, in an opinion by Justice Antonin Scalia, said the plaintiffs didn’t have enough in common to pool all their claims into a single case. The plaintiffs wanted to sue on behalf of more than a million women who are current or former employees of Wal-Mart.

To proceed, Justice Scalia said, the plaintiffs would need significant proof that Wal-Mart operated under a general policy of discrimination. “That is entirely absent here,” he wrote in a 27-page opinion.

Justice Scalia also said the plaintiffs’ claims for back pay couldn’t proceed in the class-action lawsuit. Wal-Mart, he said, was entitled to individual determinations of each employee’s eligibility for back pay.

Justice Scalia said Wal-Mart’s corporate policy barred discrimination and said the plaintiffs offered “weak” anecdotal evidence. His opinion quoted with approval a lower-court judge’s view that the plaintiffs “have little in common but their sex and this lawsuit.”

Kagan doesn’t recuse herself in ObamaCare hearing decision

Despite telling members of the Senate Judiciary Committee that she would sit out any cases where she assisted the Obama Administration in her time as Solicitor General, Supreme Court Justice Elena Kagan didn’t recuse herself in the decision to deny an expedited hearing on ObamaCare:

Supreme Court Justice Elana Kagan did not recuse herself from Monday’s decision not to fast-track the high court’s review of Virginia’s challenge to the healthcare reform law, prompting speculation that President Obama’s former solicitor general intends to take part in the case if and when it reaches her level.

“If Kagan didn’t recuse herself from this decision, it would hint that she won’t recuse herself from any ObamaCare deliberations despite … the possibility that she gave the administration legal advice on crafting and defending the law,” the conservative website Hot Air opined.

“That’s not exactly a surprise either; only Kagan can force herself into a recusal, and the chance to weigh in on one of the most critical Supreme Court decisions in decades is going to outweigh any qualms over conflicts of interest.”

Many conservatives, including Sen. Orrin Hatch (R-Utah), have said Kagan should sit out the healthcare challenge. But there was no indication Monday that she had abstained from the justices’ discussion of whether to skip the Court of Appeals process in Virginia Attorney General Ken Cuccinelli’s suit over the reform law’s requirement that most people buy insurance. (The court only makes explicit announcements about recusal when a particular justice has decided to abstain from a case).

Liberty Links: Morning Reads for Monday, February 7th

Below is a collection of several links that we didn’t get around to writing about, but still wanted to post for readers to examine. The stories typically range from news about prominent figures in the liberty movement, national politics, the nanny state, foreign policy and free markets.

Individual mandate coming under fire

Some observers, such as Jason Mazzone, are wondering whether the individual mandate in ObamaCare will survive a challenge in the Supreme Court:

When the health care law makes it to the Supreme Court, the justices will ask, with varying degrees of concern, this age-old question: How do we define the limits, because limits there must be, on this federal power?

Judge Hudson has presented a way for the court to finally answer this question. His opinion is the first prominent judgment to say that Congress can use its power over interstate commerce only to regulate “activity,” as opposed to a lack of action. This strikes many as a bold assertion, but it has a lot going for it. All of the Supreme Court cases upholding Congress’s power under the Constitution’s interstate commerce clause have involved Congress regulating some kind of activity that is already occurring.

Indeed, the court has never confronted a federal statute that forces people to engage in some action like this. The conservative justices in particular will no doubt wonder what else Congress can make Americans do if it can make us buy health insurance. Can Congress tell us to join a gym because fit people have fewer chronic diseases? Can Congress direct us to purchase a new Chrysler to help Detroit get back on its feet?
While nobody knows for sure what the Supreme Court will do in any particular case, there is now a serious question as to whether the individual mandate will ultimately survive. Judge Hudson has offered the justices a ready-made limit on Congressional power, a limit that makes sense of past cases, is steeped in the law’s traditions and allows the court to complete the task it began a century ago.

Florida judge likely to rule against administration on ObamaCare

Just a few days after a federal judge in Virginia found the individual mandate to be unconstitutional, Judge Roger Vinson heard similar arguments in a challenge by 20 states against the health care reform law:

Attorneys for 20 states fighting the new federal health care law told a judge Thursday it will expand the government’s powers in dangerous and unintended ways.

The states want U.S. District Judge Roger Vinson to issue a summary judgment throwing out the health care law without a full trial. They argue it violates people’s rights by forcing them to buy health insurance by 2014 or face penalties.

“The act would leave more constitutional damage in its wake than any other statute in our history,” David Rivkin, an attorney for the states, told Vinson.

President Barack Obama’s administration counters that Americans should not have a choice of opting out of the overhaul because everyone requires medical care.

Initial reports are that Vinson views the law in much the same light that he did back in October, that the individual mandate is unconstitutional. Vinson wonder how far the Commerce Clause could stretch if the federal government could mandate every citizen buy health insurance:

In a federal courtroom Thursday, Judge Roger Vinson questioned how far Congress’s authority would go if it can legally require nearly all Americans to purchase health insurance.

Reactions to ObamaCare ruling

As you can imagine, there are a lot of opinions on the ruling issued yesterday by U.S. District Judge Henry Hudson finding essential provisions of ObamaCare, such as the individual mandate, to be unconstitutional.

The Obama Administation obviously voiced its disagreement with the decision in during Robert Gibbs daily meeting with the press and in this statement:

Today’s narrow ruling in Virginia on the constitutionality of a provision of the Affordable Care Act is just one of many recent rulings on similar cases that have come down in recent months.  Since the law passed, opponents of reform have filed more than 20 different legal challenges.   Judges have already granted the Administration’s motion to dismiss 12 of these cases.   And in two cases, federal judges looked at the merits of the opponents’ arguments, determined that the Affordable Care Act is constitutional and upheld the law.

We disagree with the ruling issued today in Virginia and the Department of Justice is considering its appeal options.

We are pleased that Judge Hudson agrees that implementation of the law will continue uninterrupted.   In the nine months since the health reform law was passed, we’ve made tremendous progress to strengthen our health care system, including lowering costs and implementing a new patient’s bill of rights to end some of the worst insurance company abuses. That work continues. And we’re confident that when it’s all said and done, the courts will find the Affordable Care Act constitutional.

BREAKING: Federal judge rules against ObamaCare

As expected, U.S. District Court Judge Henry Hudson has ruled that ObamaCare is an unconstitutional violation of the Commerce Clause, which the Obama Administration was arguing gave them the power to enforce the individual mandate, in what is the clearest legal rebuke of the new health care reform law:

A federal judge in Virginia ruled Monday that a key provision of the nation’s sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama’s signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress’s power to regulate interstate trade.

“Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market,” he wrote. “In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

We’ll have more reaction to the decision posted later today or tomorrow. Meanwhile, you can read his opinion below:

Pence believes SCOTUS will find ObamaCare unconstitutional

Despite a recent federal court ruling out of Michigan upholding ObamaCare, Rep. Mike Pence (R-IN) believes that the Supreme Court will eventually find the individual mandate to be unconstitutional:

Rep. Mike Pence (R-Ind.), the third-ranking House Republican, who serves as conference chairman, said he saw enough votes on the high court to strike a blow to President Obama’s signature domestic initiative.

“It’s going to the Supreme Court, and the Supreme Court’s going to decide whether or not the Constitution of the United States permits the government to order the American people to purchase goods or services, whether they want them or need them or not,” Pence said Friday on WLS radio in Indiana.

The Indiana lawmaker, and potential 2012 presidential candidate, has been among the crowd of Republicans to question whether a central part of Democrats’ healthcare reform bill is constitutional. The crux of their argument is that the individual mandate — the section of the law requiring individuals to have health insurance of some sort — violates the Constitution.

A similar lawsuit pushed by Virginia Attorney General Ken Cuccinelli has cleared its first hurdle, a motion to dismiss the case by the Obama Administration. Another suit in Florida has had mixed results.

Happy Constitution Day!

The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed and that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of press.” - Thomas Jefferson

Today is Constitution Day, a day set aside by Congress, a body that largely ignores our nation’s founding document. What were once viewed to be basic natural rights, the concepts of life, liberty and property are subject to the will of the mob for the benefit of the “common good.”

This isn’t something that happened when Barack Obama or when Democrats took office, it has been going on for some time (more on that in a second). Not only are Democrats and Republicans to blame, but “We the People” also deserve a share of the blame,

While testifying before the House Judiciary Committee in 2008, Bob Barr warned, “Every administration that comes in takes the powers that it inherits from its predecessor as a floor, not a ceiling.” During his campaign for the presidency, Barack Obama promised to reign in the power of the executive, including some of the expansions claimed by his predecessor. However, we seen a further erosion of esstential liberties and limitations placed on our government by the Constitution.

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