Tim Donner: And now it is time, many would say beyond time, for us to welcome back our regular contributor, constitutional lawyer, and Libertynation.com Legal Affairs Editor, Scott Cosenza, for the section of Liberty Nation Radio called Talking Liberty.
Scott Cosenza: Thank you.
TD: A lot of litigation pending in the courts across the country about the election. Summarize for us as best you can where things stand.
SC: Tim, let’s take a pause for a moment and just have a moment of sympathy for the legal affairs analysts around the country who have to read all these suits. It’s downright cruel to have so much litigation ongoing. There are multiple state and federal lawsuits.
The big case I would suggest is in the United States Supreme Court. That has to do with Pennsylvania votes that were received by mail after Election Day. That’s still the big case, and we have no guidance yet from the Supreme Court whether they’re going to have a hearing on that case or how they may proceed with it. It’s sort of a black box right now.
The Trump administration won a minor victory in a Pennsylvania state court when they found that the secretary of state inappropriately granted people whose ballots were submitted by mail … now, this gets very technical … so people whose ballots were submitted by mail after Election Day whose identities were not verified, those persons were given extra time to verify their identities. The state court has ruled that that was inappropriate and that for those people, their votes will not count. Now, the total number there, Tim, is likely very small. I don’t have an exact count for you.
There’s also state and federal litigation, I believe, in Michigan and around the horn. We have got many others to choose from, but I think the Supreme Court case in Pennsylvania is sort of the big one for us to keep our eye on, which may result in many votes being overturned. The important question then is, could that make up the difference for Donald Trump and could he win Pennsylvania’s electoral votes depending on any remedy that they may craft? And the answer to that question is I don’t know.
TD: When are we likely to find out about Pennsylvania? Because if Trump can’t flip that state, the rest of it really won’t matter.
SC: Well, the Supreme Court justices do not discuss with me their scheduling, unfortunately. It would be so convenient if they did, but we’re just going to have to wait. We have an order from Justice [Samuel] Alito that came down on Nov. 6. And in that order, he said that he would immediately forward the case to his brother and sister justices on the court for further action if any. That’s the last communication we have from the court directly on a matter. We’re just going to have to wait and see.
TD: Okay. Now, Scott, before the election, there was a lot of talk during the confirmation process of Amy Coney Barrett about a big case revolving around Obamacare at the Supreme Court. The Democrats basically were saying what the Trump administration is trying to do is to take away pre-existing conditions and remove the entire safety net of Obamacare. Tell us about what’s going on with Obamacare and the Supreme Court.
SC: Obamacare, Tim, when it was initially challenged at the Supreme Court, as I know that you have discussed on this show before, Chief Justice John Roberts was the key swing vote in allowing it to be ruled a legal measure, a constitutional piece of legislation, because he called it a tax. And as a tax, it was allowed to go through. Then years later, the Congress took that tax down to zero, which is to say, there is no actual dollar tax that’s associated with Obamacare. So then, can you have a revenue measure or a tax if no dollars are coming in on that tax, if it’s a tax of $0. And if not, then does that make the whole rest of the law unconstitutional?
As soon as that tax was zeroed out, some anti-Obamacare attorney general basically started this action to try to get the whole thing thrown out. And so the court, when it heard the case this past week, what they focused on was a couple of questions. The first question was, do the states even have, or the individuals … There was a number of plaintiffs in the case, including the state of Texas and some individuals who all have said they’re damaged by the Obamacare tax, even though it’s a $0 tax, and the first question the court will answer is whether those people had standing to sue and, based on their questions and arguments, I think it’s an open question.
Then the other question, if they say yes, they did have standing to sue, Tim, and they agree that that provision is then unconstitutional, then we have what’s called the question of severability, and the court then goes to see whether or not they would allow the rest of the legislation to stand even though that one particular piece might be unconstitutional. And based on reading the tea leaves and judging by the justices’ questions, it seems like a majority of the court, including and especially on the conservative side, Justice [Brett] Kavanaugh, would be inclined to call that provision severable and cut it out of Obamacare and leave the rest.
Now, there is a possibility, though, that that won’t be the case, and they will say that because Congress had the opportunity to sever it and didn’t when they reduced the tax to zero, that means the whole thing can be thrown out. But that’s increasingly looking like a small percentage result rather than keeping the rest of Obamacare and just excising that odious portion.
Andrew Cuomo
TD: All right. Let’s move from Washington up to New York, where Governor Andrew Cuomo has laid down another mandate that is turning some heads. What is it, Scott?
SC: Well, what’s insufficiently restrictive, I guess, is how the regulations have gone there on the coronavirus side. And he’s now said that you have to have ten or fewer people in any gathering in your home. They’re now restricting, Tim, the number of people that can gather privately in a person’s home. I think it is a leap in terms of the impositions on people’s freedom in the coronavirus pandemic, and I expect it to be challenged going up the courts because it’s so great an imposition on people’s freedom. They told them they couldn’t go to school, and now they can’t even meet in their own houses in New York. I mean, it’s breathtaking, I think.
TD: Meanwhile, last week, we talked about a surprising decision by the voters in California on affirmative action, refusing to reinstitute affirmative action, in the Golden State. This week, affirmative action is back in the news, because an appeals court has ruled in favor of Harvard in an affirmative action case, paving the way for a trip right up the ladder to the Supreme Court.
SC: That’s right, Tim. Harvard notoriously discriminates against Asians and whites and men, favored recipients of admission, basically. And the appellate courts have now ruled that that’s okay. That’s consistent with Supreme Court precedent. The outcome that leads to Asians with exceedingly high qualifications being denied entrance while others with much lower scores of preferred races, black and brown people, that’s okay according to Supreme Court precedent. And I think that’s probably right in terms of an accurate reading of the precedent itself.
But we’re going to see now, Tim, Amy Coney Barrett’s presence on the court, where it’s going to bear fruit in all sorts of areas, and one of them, I think, will be affirmative action. The Supreme Court will have to agree to take this case, and they haven’t yet. I don’t want to give that false impression, but the entirety of this litigation was designed to present that question before the court, and this is the next step in that process. It has been completed.
