Justice Kennedy Will Likely Vote To Strike Down DOMA, Let’s Just Hope No One Joins His Opinion

WASHINGTON DC — The clearest sign that a majority of the Court believes the anti-gay Defense of Marriage Act (DOMA) is unconstitutional is how tenaciously three of the most conservative justices fought to prevent the Supreme Court from ruling on its constitutionality in the first place. Chief Justice Roberts and Justices Scalia and Alito fought tooth and nail to dismiss the case on jurisdictional grounds — an effort that is likely, if not certain, to fail. Most of the left-of-center bloc appeared skeptical of the conservatives’ theory, and Justice Kennedy at one point stated that it “seems to me there’s injury here” sufficient to justify the Court hearing the case. Kennedy did make a pointed comparison between President Obama’s decision not to defend DOMA and President Bush’s infamous signing statements, but this is more likely a gratuitous swipe at the President, than a sign that Kennedy will ultimately vote to kill the case.

Should the Court reach the merits, Kennedy left little doubt that he would vote to strike down DOMA, but not on grounds that bear any resemblance to the Constitution. DOMA is unconstitutional because it violates the Constitution’s guarantee that all persons receive the “equal protection of the laws.” Kennedy, however, largely brushed over this fact to hone in on a states’ rights argument similar to one tea partiers have used to claim Medicare is unconstitutional. In Kennedy’s words, DOMA is problematic because it runs “in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”

This is not an accurate description of what DOMA does. The primary effect of DOMA is not to “regulate marriage” it is to define who does who does not receive certain federal benefits — benefits such as tax exemptions, Social Security benefits for spouses and veterans benefits. The overwhelming majority of these benefits were enacted through Congress’ power under the Constitution to tax and spend money, a power which necessarily includes the authority to decide who is taxed and who receives federal spending. Kennedy, however, seems to think that Congress cannot define the scope of federal benefits in ways that may also touch upon marriage. There is no basis for this in the Constitution’s text.

There is, however, a limited basis for Kennedy’s views in the Constitution’s history. In the earliest days of the Republic, James Madison proposed a narrow, extra-textual view of the Constitution that would have limited Congress’ power to tax and spend money to subjects specifically mentioned elsewhere in the document. Alexander Hamilton, by contrast, argued that the we have to follow the words of the Constitution we have — not limits that cannot be found in the Constitution’s text. Hamilton won, and a unanimous Supreme Court agreed with him many years later.

If Madison had won, we likely could not have Medicare, because the Constitution does not specifically mention health care. We likely could not have Social Security, because it does not mention retirement. Medicaid, food stamps, and, indeed, virtually all of the modern American safety net would probably be on the chopping block. Kennedy’s suggestion, that judges can write a “marriage” exemption into the Constitution that doesn’t exist may be the closest that any justice has ever come to embracing Madison’s rejected theory — and it would be truly dangerous if five justices ever signed on to it.

Fortunately, this outcome is unlikely. Justice Kagan proposed an alternative theory: that the federal government’s unusual decision to step into marital policy when they historically have not done so is one of many pieces of evidence showing that DOMA was enacted because of impermissible animus against gay people. This is a sensible way to acknowledge that the federal government does not usually enact marriage laws, and presents none of the potential threats to the American safety net that Kennedy’s theory imposes. The four liberals are likely to sign onto this theory.

The greatest irony, however, may be that if Kennedy’s fellow conservatives were not so blinded by their desire to uphold the unconstitutional DOMA statute, they could actually do significantly more to advance right-wing values by joining an opinion striking DOMA on states’ rights grounds. Instead, they will stand alone on a hill defending discrimination, and likely receive nothing for their efforts.

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Court Cites Newly Enacted Louisiana Amendment To Strike Down Ban On Felon Gun Possession

In the wake of an amendment to the Louisiana Constitution that arguably makes state protection of gun rights even greater than under the Second Amendment, a trial judge has invalidated a statute prohibiting those convicted of “crimes of violence” from possessing guns.

The NRA-backed amendment, passed by ballot initiative in November, established that the right to bear arms is a “fundamental right” and any infringement of that right is subject to “strict scrutiny,” the highest level of skepticism courts apply to legislation. The U.S. Supreme Court has never established a level of scrutiny for the Second Amendment — a failure that has led to disparate interpretations and confusion among lower courts. However, as law professor Adam Winkler notes, “challenged gun laws almost always survive.”

Even Justice Antonin Scalia wrote for the U.S. Supreme Court in 2008 that the Second Amendment does not impede “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Not so in Louisiana, where Orleans Parish Criminal District Court Judge Darryl Derbigny held Thursday:

After applying the strict scrutiny standard to LA. R.S. 14.95.1, this court concludes that the statute is not narrowly tailored to achieve the government’s interest. LA R.S.14.95.1 applies without discretion to nearly every felony crime enumerated in the Louisiana Criminal Code. As such, the statute, ‘as-is’, is unconstitutional in its entirety. This court will not engage in a “judicial line item veto”, by deciding what predicate felony convictions should be included in LA R.S. 14:95.1.

Before the passage of the ballot initiative, many prominent figures including the Orleans Parish District Attorney warned that several laws crucial to public safety, including a requirement that 18 to 20-year-olds carry concealed permits, campus bans, and the law at issue here, could be subject to invalidation under the new amendment. Nonetheless, the amendment passed with an overwhelming 74 percent support.

The public defenders in the case had argued that, while a possession ban for violent felons could be justified even under the “strict scrutiny” standard by the compelling state interest in public safety, no such justification could be applied to less violent felons such as Glen Draughter, who had previously pleaded guilty to attempted simple burglary.

There are no doubt crimes considered felonies, such as possession of drugs, consumption of pornography or white collar crime, that have little relationship at all to gun possession. But the Louisiana statute explicitly limited its prohibition to “crimes of violence,” and there is every reason to believe that someone who burgles would be eminently more dangerous if they were carrying a gun.

As conservative blogger and law professor Eugene Volokh points out, the federal ban on gun possession by felons is still in effect, and federal officials could still prosecute Louisiana felons for carrying guns under their own law. But the feds alone would have to significantly reallocate their resources and are not equipped to fill local public safety demands.

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Historic Blizzard Poised to Strike New England: What Role Is Climate Change Playing?

An epic blizzard is bearing down on New England — fed in part by relatively warm coastal waters.

I asked Dr. Kevin Trenberth, former head of the Climate Analysis Section at the National Center for Atmospheric Research, to comment on the role climate change has on this storm. He explained:

This is a perfect set up for a big storm, with the combination of two parts: a disturbance from the Gulf region with lots of moisture and a cold front from the west.Ingredients for a big snow storm include temperatures just below freezing. In the past temperatures at this time of year would have been a lot below freezing but the ability to hold moisture in the atmosphere goes down by 7% per degree C (4% per deg F), and so in the past we would have had a snow storm but not these amounts.The moisture flow into the storm is also important and that is enhanced by higher than normal sea surface temperatures (SSTs). These are higher by about 1 deg C [almost 2°F] than a normal (pre-1980) due to global warming and so that adds about 10% to the potential for a big snow.

Every storm and “event” is unique. It always has unique ingredients. So it is hard if not impossible to take apart, because any piece missing means the storm behaves differently. So event attribution is not well posed. Instead we look for the environment in which the storm is occurring and how that has changed to make conditions warmer and moister over the oceans.

Like a baseball player on steroids, our climate system is breaking records at an unnatural pace. And like a baseball player on steroids, it’s the wrong question to ask whether a given home run is “caused” by steroids. As Trenberth wrote in his must-read analaysis, “How To Relate Climate Extremes to Climate Change,” the “answer to the oft-asked question of whether an event is caused by climate change is that it is the wrong question. All weather events are affected by climate change because the environment in which they occur is warmer and moister than it used to be.”

On the warmer SSTs, Climate Central’s Andrew Freedman explains:

As was the case when Hurricane Sandy struck in late October, sea-surface temperatures are running a couple degrees above average off the East Coast, which according to climate scientists may reflect both natural climate variability and the effects of manmade global warming.

The presence of unusually warm waters could aid in the rapid development of the storm system, and infuse it with additional moisture, thereby increasing snowfall totals.

Heavy precipitation events in the Northeast, including both rain and snowstorms, have been increasing in the past few decades, in a trend that a new federal climate report links to manmade global climate change. As the world has warmed, more moisture has been added to the atmosphere, giving storms additional energy to work with, and makingprecipitation extremes more common in many places.

Sea surface temperature anomalies off the East Coast. Credit Wunderground/NOAA via CC.

The blizzard is also pulling in an extraordinary amount of moisture, which is consistent with recent trends in the Northeast toward more frequent one-day precipitation extremes during the cold season, including snowstorms. The satellite-derived image of total precipitable water shows that the storm has been drawing tropical moisture from the Pacific Ocean, Gulf of Mexico, and the Atlantic Ocean

Trenberth’s second point is an important one — warmer than normal winters favor snow storms (See “We get more snow storms in warm years“). A 2006 study, “Temporal and Spatial Characteristics of Snowstorms in the Contiguous United States“ found we are seeing more northern snow storms and that we get more snow storms in warmer years:

The temporal distribution of snowstorms exhibited wide fluctuations during 1901-2000…. Upward trends occurred in the upper Midwest, East, and Northeast, and the national trend for 1901-2000 was upward, corresponding to trends in strong cyclonic activity….

Assessment of the January-February temperature conditions again showed that most of the United States had 71%-80% of their snowstorms in warmer-than-normal years….  a future with wetter and warmer winters, which is one outcome expected (National Assessment Synthesis Team 2001), will bring more snowstorms than in 1901-2000. Agee (1991) found that long-term warming trends in the United States were associated with increasing cyclonic activity in North America, further indicating that a warmer future climate will generate more winter storms.

The U.S. Global Change Research Program (USGCRP) U.S. Climate Impacts Report from 2009 reviewed that literature and concluded, “Cold-season storm tracks are shifting northward and the strongest storms are likely to become stronger and more frequent.

So it is no surprise that a 2012 study found extreme snowstorms and deluges are becoming more frequent and more severe. Freedman points out:

For the northern hemisphere as a whole, winter storms have become more common and intense during the past 50 years, according to the draft federal report. Observed changes in winter air circulation in the northern hemisphere, possibly related to Arctic sea ice loss, has been linked to large swings in seasonal snowfall from one winter to the next in the Northeast. Other studies indicate that as global warming continues, nor’easters such as the one about to hit New England may become more frequent in this region, and less common in the Mid-Atlantic states, as storm tracks shift closer to the poles.

Again, the Northeast has been especially vulnerable to deluges and Snowmaggedons, experiencing a sharp increase in one-day precipitation extremes during the October to March cold season:

The other big impact of global warming on the destructiveness of superstorms like this (and Sandy) is sea level rise:

The coastal flooding threat for this storm in New York pales in comparison to what it was during Hurricane Sandy, when large parts of the city’s iconic subway system flooded in the face of a record storm surge, and many New Yorkers drowned in flood waters.

Rising sea levels due to warming seas and melting ice caps are already making typical nor’easters such as the upcoming event more damaging, since they provide the storms with a higher launching pad for causing coastal flooding. According to the draft National Climate Assessment report released in January, even without any changes in storms, the chance of what is now a 1-in-10-year coastal flood event in the Northeast could triple by 2100, occurring once every 3 years, due to rising sea levels.

According to research by Climate Central scientists, the sea level trend in Boston Harbor from 1959 to 2008 in Boston Harbor has been 2.31 milimeters per year, which is slightly below the global average over the same period. In the past 50 years, the water level has risen by about 4.5 inches at that location, although it has increased much more in other spots along the northeastern coast.

On Nantucket Island, where coastal flooding is anticipated from this storm along with hurricane-force winds, the sea level has risen by about half a foot during the past 50 years.

People should take the weather forecasts of this storm seriously and act accordingly.

Similarly, the nation should take seriously the climatic projections of ever worsening storms from global warming — and act accordingly.

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What You Need To Know About The Impending East Coast Port Strike

Unless a deal is reached with management, some 14,000 East Coast port workers plan to go on strike on Sunday, affecting ports from Boston to Miami. Here’s what you need to know about the impending strike:

1) Management wants to cut workers’ pay. The largest sticking point in the negotiations between the port workers and a coalition of companies known as the United States Maritime Alliance (USMX) is a payment to workers for each container they unload. Instituted in the 1960s, the payments are meant as compensation for the mechanization of America’s ports, which allows one worker today to do what used to take three workers. As the New York Times explained, “The companies want to freeze those payments for current longshoremen and eliminate them for future hires.” The companies also want to cut future raises for workers to below the rate of inflation.

2) Port workers are highly skilled. The companies claim that workers are paid too much, rendering east coast ports uncompetitive. But the workers — whose numbers have dropped from 35,000 to 3,500 due to automation — are highly trained and “cannot be easily replaced.” They also do not work consistent hours. According to the union, “longshore labor cost amounts to between 3% and 4% of the shipper’s total cost.”

3) The economic impact could be significant…or not. As Brad Plumer explained in the Washington Post, it’s hard to figure out the economic impact of port closures. Estimates place the impact of a 2002 West Coast port closure at $1 billion per day, but the cost may have actually been far less than that.

4) Businesses are using political pressure to entice workers to cave. Business leaders and right-wing governors are urging the White House to invoke special powers to end the strike, should workers walk out. President Obama, for his part, urged the two sides to forge an agreement “as quickly as possible.”

The strike would be the first at East Coast ports since 1977.

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