Could the Hobby Lobby case lead to religious exemptions for race discrimination in employment?

Absolutely not.

The Good Ole Days

Minnesota Litigator has an interesting guest post today by retired bankruptcy judge Dennis O'Brien. What struck me was the arc of Judge O'Brien's career. After graduating from William Mitchell in 1974, he practiced at a small firm in Duluth for a couple of years, then went solo as a general practitioner. Just a few years later, in 1983, he applied to become the part-time bankruptcy judge in Duluth. Apparently he was the only applicant--mainly because the structure and jurisdiction of the bankruptcy court was being gutted and in complete disarray. Even so, it is impossible for me to imagine that any similar job for a federal appointment (even one that was doomed to last just six months or less) would not be swarmed with applicants today.

Are the people advising President Obama about food the same people advising him about judges?

If they are not, they should. President Obama visited Minneapolis yesterday and, as reported here, went to Matt's Bar and had a Jucy Lucy. The Jucy Lucy, two beef patties which enclose melted cheese, is arguably the finest cheeseburger known to humankind.  Wouldn't you agree Mr. Torvik that whoever picked this destination for the President's lunch clearly has the taste and refinement necessary to remedy President Obama's inexplicable failure to name us to the federal bench?

Greenhouse Gases and the Platinum Coin

The Supreme Court issued another statutory interpretation opinion today in UARG v. EPA. Justice Scalia took the opportunity to torpedo the ridiculous argument that the U.S. Treasury has authority to mint a one-trillion dollar platinum coin. Well, not in so many words, but for all practical purposes he did.

The background is pretty interesting. In 2007, the Court ratified the EPA's power under the Clean Air Act to regulate greenhouse gases as an "air pollutant" in the context of motor vehicles. But this created a bit of problem in another section of the Clean Air Act, which requires the EPA to regulate, by issuing permits, for major "stationary" emitters of "any air pollutant." The statute defines major permitters as those emitting more than 250 tons of an air pollutant in a year.

The problem is that tens of thousands of buildings, schools, malls, etc, emit that much in greenhouse gases, and thus would need to be permitted if that section applied. Everyone agreed that was not intended. To avoid that absurd result, the EPA issued a regulation setting a different, much higher, threshold for the emission of greenhouse gases (between 50,000 and 100,000 tons, depending on the circumstances).

Today, the Court struck down those regulations, finding that "air pollutant" in the context of the stationary emitters means something different than what it meant in the context of the Act-wide definition applicable in the motor vehicle case. Based on context, and prior regulations, the Court held that "air pollutant" means something much narrower in the relevant section of the act, since the broader definition would render it ridiculous. Justice Scalia had no problem finding the same term to mean different things in different parts of the same statute: "the presumption of consistent usage readily yields to context, and a statutory term—even one defined in the statute—may take on distinct characters from association with distinct statutory objects calling for different implementation strategies."

So the Court found that nothing in the statute compelled the EPA to treat greenhouse gases as "air pollutants" in this context. Next, it considered whether the EPA's interpretation that it was even allowed to regulate the stationary emitters because of their greenhouse gas emissions. Justice Scalia said no, for a variety of reasons. Most interesting me, though, was this:

EPA's interpretation is also unreasonable because it would bring about an enormous and transformative expansion in EPA's regulatory authority without clear congressional authorization. When an agency claims to discover in a long-extant statute an unheralded power to regulate "a significant portion of the American economy," we typically greet its announcement with a measure of skepticism. We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance."... [I]t would be patently unreasonable—not to say outrageous—for EPA to insist on seizing expansive power that it admits the statute is not designed to to grant.

Now, maybe it's just me, but I think Justice Scalia actually might have been thinking of the ridiculous argument for the trillion-dollar platinum coin here. Substitute "Treasury" for "EPA" and that is exactly what you'd see in any opinion considering the minting of a trillion-dollar platinum coin. There is no credible argument that Congress intended for the platinum coin statute to grant Treasury the last say on the nation's fiscal and monetary policies. It would be absolutely outrageous if Treasury pretended that it had such power.

Overall, this is another lesson in the vagaries of statutory interpretation.  Just like "air pollutant" doesn't always means "air pollutant," the phrase "such denominations as the Secretary may prescribe" doesn't actually include a denomination with 12 zeros before the decimal point.

(By the way, this decision is not the end of the world. The Court held that the EPA had discretion to regulation the greenhouse gas emissions of those stationary emitters who were otherwise under the EPA's thumb based on their emissions of the narrower kind of "air pollutants." This gave the EPA pretty much every thing it wanted—despite the tweets of certain hacks to the contrary.)

This is Part 9 in The Gillette-Torvik Blog's 94-Part Series on the Trillion Dollar Platinum Coin idea

Does the Internet link things forever?

It is hard to imagine that any Reader(s)™ of this blog are not also aware of Seth Leventhal's fantastic blog Minnesota Litigator. But in the unlikely event that someone has not visited there first, today Seth ran this post about a high school student who is suing his former school because of how it handled a tweet written by the student. Seth linked to the Complaint the student filed in federal court. While Seth wrote about the cartoon used in paragraph 80 of the Complaint, a different section caught my attention.

My favorite thing about the Cook County Clerk of Court's website

Is this text, which appears in the footer of every page:

"© 2002 - 2009, Office of the Clerk of the Circuit Court of Cook County."

This gives you a good idea of the last time anyone paid any particular attention to that website.

Kenneth Kratz, a.k.a "The Prize," suspended for four months

Longtime Reader(s)™ surely recall the saga of Kenneth Kratz, the Wisconsin prosecutor who sent sexual texts (what the kids call "sexts") to a victim in a domestic abuse case he was charged with prosecuting, and other terrible behavior.

Today, nearly five years after the conduct, the Supreme Court of Wisconsin has imposed its punishment: a four-month suspension.

Justice Prosser dissents, in part, basically calling out what he sees as a broken attorney discipline process.

h/t Legal Profession Blog

Take another minute to remember.

Last year, we ran the post below on the 69th anniversary of D-Day. Today, of course, is the 70th anniversary.  I thought we should run it again.  I updated it to reflect that it is a year later.

70 years ago today, Allied Forces invaded France to free it, and Europe, from Nazi occupation. Among the thousands of American, British, and Canadian soldiers who participated in the Normandy landings was an lieutenant in the Army Rangers named Gerald Heaney. After the war Lieutenant Heaney went back home to Duluth, Minnesota where he practiced law until President Lyndon Johnson named him as judge for the United States Court of Appeals for the Eighth Circuit. Many would say that Judge Heaney was one of the greatest judges to serve on the Eighth Circuit. In 2007, Congress named the federal courthouse in Duluth after him.

People do go to prison for copyright infringement.

Mr. Torvik did a post about decriminalization last week and asked "how many people are wasting away in prison on a copyright rap?" In a comment to the post, I said I didn't know but suspected not many. Then I remembered that I wrote my comment on a device that is a pretty fair research tool. I did a Google search "prison sentence for copyright infringement" and got some interesting hits.

Chemical Weapons and the Platinum Coin

Reader(s)™ have lodged many complaints against the blog over the years, but the most recent complaints have been:

• Mr. Torvik seems to have gone AWOL; and
• Specifically, Mr. Torvik appears to have abandoned his promised 94-part series on the Trillion Dollar Platinum Coin.

All I can say, dear Reader(s)™, is that I hear you, and I am doing my best. To wit, today I give you Part 8 in the platinum coin series.

The impetus for today's post is the Supreme Court's decision in Bond v. United States. The facts are simple: British secret agent James Bond went rogue and stole a large cache of chemical weapons from Saddam Hussein in 2002 (yes, that's where they went). Over the next several years, he sold the chemicals to terrorists on the black market, eventually amassing enough money to purchase nearly 60% of all platinum known to exist. Then he attempted to use that platinum to create a one-trillion-dollar coin, which he intended to gift to the United States treasury, thus solving all our fiscal problems. It was kind of a Robin Hood thing. Yesterday, the Supreme Court put the kibosh on the whole scheme.