White House Urges Supreme Court Not to Jump Into Health Care Law Cases Prematurely

Straight from Fox News: “The Obama administration told the Supreme Court on Monday night it should stay away from a high-profile challenge to the 2010 health care law until after a lower court has had a chance to review the case.

Acting Solicitor General Neal Katyal wrote, “there is no basis for short-circuiting the normal course of appellate review.” Katyal also says Virginia Attorney General Ken Cuccinelli’s case is problematic because he may lack sufficient standing to challenge the health care law.

The Supreme Court normally takes cases only after they’ve been reviewed at least once by appellate judges. Virginia Attorney General Ken Cuccinelli says that’s not appropriate in this instance.

In his filing last month, Cuccinelli said there’s a “palpable consensus” that the high court will ultimately have to pass judgment on the merits of President Obama’s health care law and should do so without delay. Furthermore, Cuccinelli argues that his case involves “pure issues of constitutional law” that appellate judges on the Fourth Circuit U.S. Court of Appeals will be unable to definitively resolve.

Katyal says there is no question that the case is of great public importance but uses the language of the court’s own rules to say it is not “one of the rare cases that justifies deviation from normal appellate practice and require[s] immediate determination in this court.” Katyal points out that the Virginia case and several others are already in the pipeline and little time may be saved if the court were to jump in now.

Politicians from both parties have also expressed support for immediate high court review. Sen. Bill Nelson, D-Fla. took to the Senate floor to champion the cause. Republican governors recently sent a letter to Obama asking him to support Virginia’s efforts, writing, “we should not endure years of litigation in the circuit courts, when the Supreme Court can promptly provide finality.”

The Supreme Court denied without comment a similar request for expedited review made last year in another, lower-profile health care challenge from California.

With the government arguing against immediate consideration, most court observers think it is unlikely the justices will grant Cuccinelli’s request.

In December, U.S. District Court Judge Henry Hudson ruled that the health care law’s regulation forcing people to buy health insurance or face a penalty is unconstitutional. The government’s appeal seeking to vindicate Obama’s signature legislative accomplishment is currently pending before the Fourth Circuit. Oral arguments are scheduled for May 10 in Richmond, Va.

For many years the Fourth Circuit held a reputation as one of the most conservative federal appellate courts in the country. But in the past two years, Obama has appointed four of the court’s 15 members, thus diminishing that reputation.

If the high court does not immediately take the case, the three Fourth Circuit judges that will hear the appeal will not be known until the morning of the arguments.”

Cancelled Award Ceremony Highlights Obama’s Difficult Dance on Transparency

"Let me say it as simply as I can: transparency and the rule of law will be the touchstones of this presidency" - President Obama

Straight from Fox News: “When the White House abruptly cancelled an event at which President Obama was slated to receive an award for promoting government transparency, no reason was offered beyond “changes to the president’s schedule.”

The oblique explanation highlights what has become an increasingly difficult balancing act for the Obama administration: claiming the moral high ground on opening up the government while preserving the secrecy that gives every president the room to maneuver.

The timing of the award, given during “Sunshine Week” by a cadre of good-government groups, was already a little awkward, coming just days after a new report showed that the administration isn’t quite living up to its openness pledge.

An Associated Press analysis out Monday revealed that Freedom of Information Act (FOIA) requests were up last year, but the administration actually took on fewer cases. It also found that the federal agencies took longer to hand out records.

There were also little nuggets of irony – like this, “The Obama administration even censored 194 pages of internal e-mails about its Open Government Directive that the AP requested more than one year ago,” the AP reported.

Areas where they did improve include less frequently invoking the “deliberative process” exemption for behind-the-scenes decision-making.

A George Washington University study also found that there are backlog problems in the administration, some of which were found under previous presidents, but that many agencies were not listening to the guidelines set out by the president and Attorney General Eric Holder and haven’t implemented FOIA changes outlined in memos sent to them.

Tom Fitton, president of Judicial Watch appeared before the Senate Judiciary Committee Tuesday airing his grievances and noted he thinks the Obama administration is actually worse than his predecessor’s when it comes to issues of openness.

“We have filed over 325 FOIA requests with the Obama administration. And we have filed 44 FOIA lawsuits in federal court against this administration. Administratively, agencies built additional hurdles and stonewalled even the most basic FOIA requests. The Bush administration was tough and tricky, but the Obama administration is tougher and trickier,” Fitton said.

Obama famously pledged on the campaign trail that he’d make his administration the most transparent and open ever. And the White House has argued it is freely giving up more information, so formal requests don’t necessarily reflect all that they’re doing, like releasing visitor records.

Those visitor records, though, have provoked transparency complaints of their own. Obama aides have come under fire for holding meetings with lobbyists in nearby coffee chops and government offices off the White House campus, places where no records of visitors are kept. The White House says the meeting locations are due to space constraints, but open-government advocates are skeptical.

At the daily press briefing Wednesday, held before the transparency award ceremony was cancelled, White House Press Secretary Jay Carney said Obama was a deserving recipient because he has “demonstrated a commitment to transparency and openness… greater than any administration has shown in the past.”

The Obama team points to gains at several agencies, like the Department of Homeland Security’s “Virtual USA,” which allows safety officials to share information in real time. In conjunction with the Department of Justice, the White House also created a website called FOIA.gov which provides information on how citizens can file requests and also what the government is doing on all levels with inquiries.

Rep. Darrell Issa, R-Calif., the chairman of the House Oversight and Government Reform Committee, compared Obama receiving an award for transparency to the president receiving the Nobel Peace prize after being in office 12 days.

“This president is less transparent, less willing to accommodate data transparency which the committee fought for on a non-partisan basis,” said Issa, whose requests for information haven repeatedly thwarted by the White House. “This administration has not been willing to cooperate.”

Ironically, the cancelled event was offered to the press only as a “pool spray” – media speak for a limited number of journalists allowed to enter a room for a short amount of time to record video and take pictures — as opposed to allowing open media access.”

Man Arrested For Linking To Online Videos

Department of Homeland Security - Preserving your freedoms!

Straight from Slashdot:

“In a case against a New York website owner, the Department of Homeland Security (DHS) is claiming that merely linking to copyrighted material is a crime. DHS, along with Immigration and Customs Enforcement (ICE), seized Brian McCarthy’s domain, channelsurfing.net, in late January. The site has now been replaced with a government warning: ‘This domain has been seized by ICE — Homeland Security Investigations, Special Agent in Charge, New York Office.’ The advocacy group Demand Progress has claimed that McCarthy never reproduced copyrighted material, and that his website simply linked to other sites. A criminal complaint obtained by the group seems to acknowledge that agents knew that McCarthy was running a ‘linking website.’ While the criminal complaint alleges that McCarthy did engage in the ‘reproduction and distribution’ of copyrighted material, it is never clear that he actually reproduced any of the specified broadcasts.”

McCarthy was arrested last week. Relatedly, TorrentFreak has posted a list of reasons why these domain name seizures are unconstitutional.