The ACA withstood yet another legal challenge in the courts. In the words of conservative Justice Laurence Silberman:

"The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local -- or seemingly passive -- their individual origins," wrote Judge Laurence Silberman.

National solutions to national problems. What a concept. Whether one agrees with the form of the solution or not, it is encouraging to hear a conservative justice articulate a reason to be a nation in the first place --- to find national solutions to national problems.

To give you a sense of how huge this is, meet Justices Silberman and Kavanaugh, via ThinkProgress:

When the United States Court of Appeals for the D.C. Circuit announced two of the three judges who would hear a challenge to the Affordable Care Act — conservative icons Laurence Silberman and Brett Kavanaugh — the law’s supporters turned white. Silberman is a close ally of Justice Clarence Thomas, a former official in the Nixon, Ford and Reagan Administrations and the author of the lower court decision overturning the District of Columbia’s handgun ban. Kavanaugh is a former Associate Counsel under Clinton inquisitor Ken Starr and a leading attorney in the George W. Bush White House. If anyone would be sympathetic to the case against health reform, these two men were first on the list.

And yet, both judges wrote opinions today rejecting an utterly meritless challenge to the Affordable Care Act — Judge Kavanaugh on the grounds that the court lacks jurisdiction to even hear the case, and Judge Silberman in a tour de force opinion thatabsolutely obliterates any suggestion that the ACA is not constitutional:

And as ThinkProgress notes, they weren't shy about saying just how far off the mark the challenge is:

Since appellants cannot find real support for their proposed rule in either the text of the Constitution or Supreme Court precedent, they emphasize both the novelty of the mandate and the lack of a limiting principle.

Here's more from Justice Silberman, via the New York Times:

"It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family," wrote Judge Laurence Silberman in the majority opinion, citing past federal mandates that inspired legal fights.

Silberman's references seem to be challenging the United States Supreme Court to consider all existing court precedents in the context of the Affordable Care Act when considering the individual mandate. In some respects, this might be a dangerous game with this current Supreme Court, given that their Citizens United decision overturned long-standing law with regard to protected speech. But the gist of what Justice Silberman seems to be saying is that those laws are established and accepted in this country and in that context, so too should the health care mandate be.

According to CNN, it's unclear whether this decision will be considered alongside the others before the court.

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Judge Walker has opened the door for same-sex marriage, but with a bit of a twist. The stay will remain in effect until August 18th to give the proponents of Prop 8 an opportunity to appeal to the 9th Circuit Court of Appeals.

That's not surprising, but what does surprise me is the lengthy discussion of whether those same Prop 8 proponents even have standing to file such an appeal.

Because Prop 8 was an amendment to the state Constitution, the Attorney General and Governor are the parties with standing to appeal Judge Walker's ruling. However, Jerry Brown and Arnold Schwarzenegger both declined to do so. At the trial, the original proponents were allowed to present their case instead of Brown and Schwarzenegger, but after the judge ruled, responsibility for appeal bounced back to the state.

Brown and Schwarzenegger argued that the stay should be lifted and marriages allowed immediately. What Judge Walker has done with this short extension of the stay is to allow the Prop 8 proponents to argue: a) that they have standing to appeal; and b) that the stay should be made permanent.

Judge Walker seems to think they don't have standing. Key conclusion:

Because proponents make no argument that they -- as opposed to the state defendants or plaintiffs -- will be irreparably injured absent a stay, proponents have not given the court any basis to exercise its discretion to grant a stay.

Bottom line: This is moving toward the Supreme Court. The real question is what will happen in the interim.

Chris Geidner has a quick analysis with key points. Maddow also reacts. The LA Times reports that Prop 8 proponents plan an immediate appeal.

Update #2: According to Right Wing Watch, the American Family Association is considering the possibility of dropping any challenge to Prop 8 in order to save bans on same-sex marriage in other states.

This is not a huge surprise, but the oil-soaked 5th circuit Court of Appeals has denied the Obama administration's appeal of the decision to lift the moratorium on deepwater offshore drilling.

NEW ORLEANS, Louisiana — The Obama administration lost its bid Thursday to maintain a six-month moratorium on offshore deepwater drilling which a federal judge ordered to be lifted last month.

The Fifth Circuit Court of Appeals denied the government's request to stay that judge's order pending appeal.

The motion was denied because the government failed to show "a likelihood of irreparable injury if the stay is not granted," the court wrote in a 2-1 ruling.

The government also "made no showing that there is any likelihood that drilling activities will be resumed pending appeal."

Interior Secretary Ken Salazar has said he will soon issue a new order to block deepwater drilling regardless of how the court ruled.

The court noted that the Salazar "has the right to apply for emergency relief if he can show that drilling activity by deepwater rigs has commenced or is about to commence."

It also ordered that the appeal be expedited so the case can be argued on its merits during the week of August 30.

Given the depth of cronyism between this court panel and the oil industry, their ruling was to be expected. I'm wondering what steps Salazar will take to block drilling despite the court's order. Perhaps he will revoke permits?

US District Judge Martin Feldman has issued a stay to the President's moratorium on offshore drilling in the Gulf of Mexico. Or put another way, the judge has given a green light for all offshore drilling to restart despite the disastrous oil spill in the Gulf of Mexico.

Judge Feldman ruled that the government had not taken other companies' safety records into account, nor had they provided compelling evidence for imposing a moratorium.

The Obama administration will appeal the ruling to the 5th Circuit Court of Appeals in an effort to have the ruling reinstated.

The text of the ruling is here (PDF). I will update this post with more information as it becomes available.

On the record now before the Court, the defendants have failed to cogently reflect the decision to issue a blanket, generic, indeed punitive, moratorium with the facts developed during the thirty-day review. The plaintiffs have established a likelihood of successfully showing that the Administration acted arbitrarily and capriciously in issuing the moratorium.

Update #1: From the comments (thanks to savannah43), a backgrounder on Judge Feldman.

The primary objection from the other companies drilling in the Gulf to the moratorium is the perception that they are being punished for BP's inattention to safety. However, as commenter jalbert points out, they are all using the same boilerplate emergency response plan which has been shown to be woefully inadequate, outdated, and unresponsive to specific needs of the Gulf of Mexico. Chevron's claim of "perfectly safe without a relief well" is such an example.

Update #2: Judge Feldman owns stock in drilling companies (Transocean is one).

TPM has the full portfolio, noting cozy relationships between judges in that region and the oil industry:

In his opinion today, Feldman wrote, “Oil and gas production is quite simply elemental to Gulf communities.” Indeed, it is so elemental that the justice system is invested in the oil and gas industry. As TP’s Ian Millhiser has written, “Industry ties among federal judges are so widespread that they are beginning to endanger the courts’ ability to conduct routine business. Last month, so many members of the right-wing Fifth Circuit were forced to recuse themselves from an appeal against various energy and chemical companies that there weren’t enough untainted judges left to allow the court to hear the case.”

Digby has this on Roberts: "In case anyone is wondering if Roberts really is a partisan hack or not, Jeffrey Toobin's book "Too Close To Call" sheds some light on that subject:

The president's first two nominations to the United States Court of Appeals for the District of Columbia curcuit --- generally regarded as the stepping-stone to the Supreme Court --- went to Miguel Estrada and John G Roberts Jr., who had played important behind-the scenes roles in the Florida litigation."

By the way, it's a great book.

Crime and Punishment Billmon

"If someone committed a crime, they will no longer work in my administration."

George W. Bush
Remarks to Reporters
July 18, 2005

Assistant to the President for National Security Affairs Stephen Hadley announced today the appointment of Elliott Abrams as Deputy Assistant to the President and Deputy National Security Advisor for Global Democracy Strategy. . ."

Executive Office of the President
Personnel Announcement
February 2, 2005

The Board concluded . . . that Abrams had engaged in "dishonesty, deceit or misrepresentation" by giving false (but unsworn) testimony to three congressional committees regarding the role of the United States government in what has become known as the Iran-Contra Affair. Following Abrams' conviction, upon a plea of guilty, of criminal charges arising out of his congressional testimony, President Bush granted him a full and unconditional pardon."

District of Columbia Court of Appeals
In re Elliott Abrams, Respondent
February 5, 1997

________________________
Sorry Elliott, but you know how it is: The president is a man of his word. And he didn't make any exception for pardoned criminals.

Don't forget to turn in your ID badge on the way out.

[ed note: couple other guys who might want to look for other work if Dear Leader really means it...BWA HAHAHAHA
John Poindexter
Otto Reich

Court Nominee Gave False Data, Text Shows

Law License Was Suspended Despite Early Denial

Thomas B. Griffith, President Bush's nominee to the U.S. Court of Appeals for the District of Columbia Circuit, appeared to provide inaccurate information to Utah bar officials about his legal work and lapses in obtaining law licenses over the past year, according to documents released yesterday at his nomination hearing...

Here's a funny statement by someone who supposedly knows the law.

Griffith added that because his license was suspended for administrative reasons, he never considered it a true suspension or disciplinary matter, and did not report it to Utah officials. "The thought never crossed my mind that it was related," he said.

Okay, I'm lost there. What does the word suspension mean?

1) A temporary abrogation or cessation, as of a law or rule.

2) A temporary debarment, as from school or a privilege, especially as a punishment.

Senate Judiciary Chairman Orrin G. Hatch (R-Utah), a longtime friend of Griffith's pledged to "do everything in my power" to help him win confirmation.

I guess lying about being suspended is OK with Orrin.

Oh, I'm sure He will be so pleased to know that He's not really a religious symbol:

The San Francisco Appeals court has ruled that "Under God" is not a prayer when used in the Pledge of Allegiance. In 2002, the court declared that the phrase was unconstitutional. The new 2-1 ruling from the Ninth U.S. Circuit Court of Appeals states it is a "recognition of our founders' political philosophy that a power greater than the government gives the people their inalienable rights [...] Thus, the pledge is an endorsement of our form of government, not of religion or any particular sect."

In a separate 3-0 ruling, the "In God We Trust" was also found to be non-religious; the motto is patriotic and ceremonial.

The ruling itself is not so much an issue with me; I don't have a problem with saying "under God". But I do have an issue with Judge Carlos Bea's reasoning in his decision:

Bea wrote that the pledge is indeed a patriotic exercise, and the words "under God" must be viewed in that context.

"The pledge reflects many beliefs held by the founding fathers of this country -- the same men who authored the Establishment Clause -- including the belief that it is the people who should and do hold the power, not the government," Bea wrote. "They believed that the people derive their most important rights, not from the government, but from God."

Hold on there. Before one starts invoking "the Founding Fathers" in justifying the phrase "under God" in the Pledge of Allegiance, one might actually to do research into the Pledge. Like the fact that the Founding Fathers had nothing to do with the Pledge. It was written in 1892 (more than a 100 years after the founding of the country) by a Baptist minister, Francis Bellamy. It's a little disingenuous to claim the Founding Fathers as the authority on this, since none were alive when the pledge came to be. As it was originally written, it hardly had the patriotic or religious fervor that Bea ascribed:

I pledge allegiance to my flag and the republic for which it stands: one nation indivisible with liberty and justice for all.(ref. Wikipedia)

It has gone through four iterations before coming to its current state. The phrase "under God" wasn't added, as many of you know, until 1954, and only then as some sort of strange pre-emptive move against communism, as if making schoolchildren say those words inoculated them against communist sympathies.

As for the Founding Fathers' endorsement of the rights of Americans are derived from God, well, that's a disputable statement as well.

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Not only did they want us to bail them out, they want to keep the names of the beneficiaries a big secret. While there's at least a theoretical chance that this information could affect stock prices, Wall Street seems to be doing quite well in spite of hanging by a thread, doesn't it?

Jan. 11 (Bloomberg) -- The Federal Reserve asked a U.S. appeals court to block a ruling that for the first time would force the central bank to reveal secret identities of financial firms that might have collapsed without the largest government bailout in U.S. history.

The U.S. Court of Appeals in Manhattan will decide whether the Fed must release records of the unprecedented $2 trillion U.S. loan program launched after the 2008 collapse of Lehman Brothers Holdings Inc. In August, a federal judge ordered that the information be released, responding to a request by Bloomberg LP, the parent of Bloomberg News.

“This case is about the identity of the borrower,” said Matthew Collette, a lawyer for the government, in oral arguments today. “This is the equivalent of saying ‘I want all the loan applications that were submitted.’”

Bloomberg argues that the public has the right to know basic information about the “unprecedented and highly controversial use” of public money. Banks and the Fed warn that bailed-out lenders may be hurt if the documents are made public, causing a run or a sell-off by investors. Disclosure may hamstring the Fed’s ability to deal with another crisis, they also argued. The lower court agreed with Bloomberg.

If any of your loved ones are serving abroad, you might be interested to know the Obama administration, by virtue of SCOTUS's refusal of the case, just got the Supreme Court's blessing to torture. Obviously, other countries will follow our lead:

In the wake of the U.S. Supreme Court’s refusal Monday to review a lower court’s dismissal of a case brought by four British former Guantanamo prisoners against former defense secretary Donald Rumsfeld, the detainees’ lawyers charged Tuesday that the country’s highest court evidently believes that "torture and religious humiliation are permissible tools for a government to use."

The U.S. Circuit Court of Appeals in Washington, D.C., had ruled that government officials were immune from suit because at that time it was unclear whether abusing prisoners at Guantanamo was illegal.

Channeling their predecessors in the George W. Bush administration, Obama Justice Department lawyers argued in this case that there is no constitutional right not to be tortured or otherwise abused in a U.S. prison abroad.

The Obama administration had asked the court not to hear the case. By agreeing, the court let stand an earlier opinion by the D.C. Circuit Court, which found that the Religious Freedom Restoration Act – a statute that applies by its terms to all "persons" – did not apply to detainees at Guantanamo, effectively ruling that the detainees are not persons at all for purposes of U.S. law.

The lower court also dismissed the detainees’ claims under the Alien Tort Statute and the Geneva Conventions, finding defendants immune on the basis that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

Finally, the circuit court found that, even if torture and religious abuse were illegal, defendants were immune under the Constitution because they could not have reasonably known that detainees at Guantanamo had any constitutional rights.

The circuit court ruled that "torture is a foreseeable consequence of the military’s detention of suspected enemy combatants."

That opinion was written by Judge Karen Lecraft Henderson, who was appointed to the federal circuit court by Ronald Reagan in 1986 and to the Appeals Court in 1990 by George H.W. Bush.

The British detainees spent more than two years in Guantanamo and were repatriated to Britain in 2004 with no charges ever having been filed against them.

Eric Lewis, lead attorney for the detainees, said, "It is an awful day for the rule of law and common decency when the Supreme Court lets stand such an inhuman decision. The final word on whether these men had a right not to be tortured or a right to practice their religion free from abuse is that they did not."

"The lower court found that torture is all in a days’ work for the secretary of defense and senior generals," he added. "That violates the president’s stated policy, our treaty obligations, and universal legal norms. Yet the Obama administration, in its rush to protect executive power, lost its moral compass and persuaded the Supreme Court to avoid a central moral challenge. Today our standing in the world has suffered a further great loss."

Center for Constitutional Rights Senior Attorney Shayana Kadidal, co-counsel on the case, told IPS, "In many ways the opinion the Supreme Court left standing today is worse when one gets past the bottom line – no accountability for torture and religious abuse – and digs into the legal reasoning."

"One set of claims are dismissed because torture is said to be a foreseeable consequence of military detention," he said. "How will the parents of our troops captured in future foreign wars react to that?"