More Developments at the Wisconsin Supreme Court

I have to say that I was surprised by Justice Gableman’s decision to file a motion asking Justice Pat Crooks to recuse himself from his pending disciplinary case. I understand the rationale. Justice Crooks did make remarks pertaining to some of the issues in the disciplinary proceeding in the course of his writings in Allen v. State. Because he had not had the benefit of full briefing and oral argument, these comments might raise concern that he had prejudged the issue. His reference to the comments of Justice Gableman’s attorney and Justice Gableman’s failure to repudiate them might be seen as importing an extraneous matter into the disciplinary proceeding. What Jim Bopp said in the course of that proceeding and whether or not Justice Gableman denounces his comments has nothing to do with the issues in that proceeding which are limited to whether the Reuben Mitchell ad violated SCR 60.06(3)(c).

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Supreme Court Hears Argument on Whether NLRB Actually Still Exists

Yesterday morning, the U.S. Supreme Court heard oral argument in an important case at the intersection of labor law, statutory interpretation, and administrative law. In New Process Steel, L.P. v. NLRB, on appeal from the Seventh Circuit Court of Appeals, the Court will decide whether a two-member National Labor Relations Board (NLRB or Board) has the authority to engage in adjudication on behalf of the Board. The Board has operated with only two members for over two years, since the appointments of two Board members expired on December 31, 2007. Just before that time, effective midnight, December 28, 2007, the Board delegated all of its powers to a group of three members to continue to issue decisions and orders as long as a quorum of two members remained. Since that time, the two Board members remaining, acting as a quorum of the group, have issued over 500 decisions. 

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The End of the World As We Knew It?

Prior to Sunday’s vote on health care reform, Nancy Pelosi said that we were “at the door step of history.” Mark Steyn counseled caution, reminding us that, on Christmas Eve, we were at the “garden gate of history” but then Scott Brown was elected and “we backed down the front drive of history reversing over the neighbor’s dog of history.”

I am fairly certain that ObamaCare won’t work as advertised, but is it susceptible to constitutional challenge? To continue the Speaker’s hackneyed metaphor, are we to have anything other than a quick look around the foyer of history?

In Sunday’s Washington Post, Randy Barnett outlined some of the issues surrounding the constitutionality of ObamaCare. I am particularly interested in the status of the individual mandate. It is a standard bit of high school civics that Congress possesses only enumerated powers as opposed to the plenary authority of most state legislatures. The reality is a bit more complicated as courts, over the past seventy-five years have found these enumerated powers to be remarkably protean. 

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