News
Friday Law Briefs: Stevens, Gregorie, McKenna
•Yesterday, our State Supreme Court concluded that the Governor could completely ignore the law without consequence. The case centered on an arbitration resolution to a collective bargaining dispute between the State and the labor union, SEIU, representing 25,000 providers of in-home personal care services to Medicaid-eligible clients. State law required that if collective bargaining over wages and benefits failed, then any unresolved issues would be subject to binding arbitration. The law further required the arbitration to take into account the state’s ability to pay the wages/benefits at issue. Finally, the law required the Governor to include in her budget submission to the legislature the binding arbitration decision. The collective bargaining dispute was decided by binding arbitration, but the Governor refused to put the arbitration award into her proposed budget.
The union brought a writ action to require the Governor to follow the law. The Supreme Court in a 5–4 vote said that she did not have to follow the law and even if she did, they would not make her follow the law. The decision is especially troubling as the prime constitutional duty of the governor is to “see that the laws are faithfully executed.” (See Art. III, Sec. 5 General Duties of Governor.)
The Governor’s excuse for her failure to include the arbitration award—the State could not afford it—was also disingenuous: Her original “balanced” budget proposal with no new taxes was more a political statement rather than real effort to propose a workable budget. (The decision certainly suggests that the recent court decision finding that the State is not adequately funding basic public education will not be enforceable.)
•I agree with strong consensus of legal commentators who believe that the 13-state lawsuit AG Rob McKenna has signed on to is a loser based on Supreme Court precedent. U.S. v. Lopez and U.S. v. Morrison, the two post-1930s cases to strike down federal laws as outside the scope of the Commerce Clause and the two cases cited by McKenna as proof of the viability of his lawsuit, where both predicated on the conclusion that the activities being regulated (the possession of firearms in educational environments and violence against women) were not activities that substantially affect interstate commerce. Given the role of heath care in the national economy (over 15 percent of GDP), that argument should fail. It is hard to see how regulating activity related to health care does not substantially affect interstate commerce.
•Justice John Paul Stevens’ retirement from the U.S. Supreme Court is obviously the big news on the legal circuit. Justice Stevens, despite being appointed by a Republican, Gerald Ford, is a member of the so-called liberal block of the Supreme Court (along with Justices Ginsberg, Breyer, and Sotomayer). Thus, President Obama’s choice for replacement is not going to shift the balance of the Court, but Justice Stevens because of his seniority and personality has a unique ability among the liberal block to bring Justice Kennedy,
typically a swing vote on the Court, on to the liberal side for an opinion. That significant influence will be lost. As reported here, Justice Stevens wrote an elegant and blistering dissent in the recent Citizen’s United case, a case in which he was not able to win Justice Kennedy's agreement. One of my favorite Stevens’ quote was from his dissent in Bush v. Gore: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” He will be missed.
The union brought a writ action to require the Governor to follow the law. The Supreme Court in a 5–4 vote said that she did not have to follow the law and even if she did, they would not make her follow the law. The decision is especially troubling as the prime constitutional duty of the governor is to “see that the laws are faithfully executed.” (See Art. III, Sec. 5 General Duties of Governor.)
The Governor’s excuse for her failure to include the arbitration award—the State could not afford it—was also disingenuous: Her original “balanced” budget proposal with no new taxes was more a political statement rather than real effort to propose a workable budget. (The decision certainly suggests that the recent court decision finding that the State is not adequately funding basic public education will not be enforceable.)
•I agree with strong consensus of legal commentators who believe that the 13-state lawsuit AG Rob McKenna has signed on to is a loser based on Supreme Court precedent. U.S. v. Lopez and U.S. v. Morrison, the two post-1930s cases to strike down federal laws as outside the scope of the Commerce Clause and the two cases cited by McKenna as proof of the viability of his lawsuit, where both predicated on the conclusion that the activities being regulated (the possession of firearms in educational environments and violence against women) were not activities that substantially affect interstate commerce. Given the role of heath care in the national economy (over 15 percent of GDP), that argument should fail. It is hard to see how regulating activity related to health care does not substantially affect interstate commerce.
•Justice John Paul Stevens’ retirement from the U.S. Supreme Court is obviously the big news on the legal circuit. Justice Stevens, despite being appointed by a Republican, Gerald Ford, is a member of the so-called liberal block of the Supreme Court (along with Justices Ginsberg, Breyer, and Sotomayer). Thus, President Obama’s choice for replacement is not going to shift the balance of the Court, but Justice Stevens because of his seniority and personality has a unique ability among the liberal block to bring Justice Kennedy,
typically a swing vote on the Court, on to the liberal side for an opinion. That significant influence will be lost. As reported here, Justice Stevens wrote an elegant and blistering dissent in the recent Citizen’s United case, a case in which he was not able to win Justice Kennedy's agreement. One of my favorite Stevens’ quote was from his dissent in Bush v. Gore: “Although we may never know with complete certainty the identity of the winner of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” He will be missed.
