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Judiciary

Final news roundup of how Harkin and Grassley voted

by: desmoinesdem

Wed Dec 17, 2014 at 19:36:37 PM CST

Senator Tom Harkin cast his final votes in Congress yesterday as the upper chamber wrapped up the lame-duck session. He and Senator Chuck Grassley were on opposite sides as Democrats confirmed a batch of presidential nominees on Monday and Tuesday. You can view all the roll calls here; the nominees were approved mostly along party lines. They included several judges and assistant secretaries of various agencies and Dr. Vivek Murthy, confirmed as surgeon general by 51 votes to 43, with only one Republican yes vote. Murthy had been the target of a relentless "smear campaign" by conservative media and the National Rifle Association, because of his comment in October 2012 that "Guns are a health care issue."

The conservative media attacks against Murthy began in early March. Coverage of his nomination focused on his past acknowledgement that gun violence affects public health, which conservative media spun as evidence Murthy is obsessed with gun regulations. (Murthy has actually said his focus as Surgeon General will not be on gun violence, but rather obesity.)

Because of strange Senate procedural rules, hardline conservative Republican Senator Ted Cruz inadvertently made this week's raft of confirmations possible. His constitutional point of order against the massive federal government funding bill last Friday prompted Senate Majority Leader Harry Reid to convene the chamber on Saturday. That gave Democrats more time to set up confirmation votes on nominees this Monday and Tuesday. Rebecca Kaplan of CBS News explained here that the most controversial presidential nominees to be confirmed "thanks to Ted Cruz" are Murthy, Tony Blinken for Deputy Secretary of State, and Sarah Saldaña, for Immigration and Customs Enforcement Director in the Department of Homeland Security. Harkin voted for and Grassley against all of those nominees.

Iowa's senators ended up on the same side in one big vote this week: the bill extending dozens of tax breaks for corporations and individuals. Steven Dennis noted in Roll Call,

Handing out mostly corporate tax breaks and adding to the debt to do it has proven to be a popular thing for Congress. Democrats including President Barack Obama spent the better part of 2013 trying to get Republicans to agree to more revenue as part of a budget deal, but are now signing on to deficit expansion for the sake of tax breaks that will expire, again, in two weeks.

Usually, these tax breaks - which range from the R&D tax break to breaks for NASCAR, racehorse owners and wind farms - are touted as incentives - and indeed some senators called them that Tuesday. But it's hard to retroactively incentivize anything - a point made on the Senate floor by outgoing Finance Chairman Ron Wyden, D-Ore., who voted no and said the tax bill didn't even have the shelf life of a carton of eggs. [...] After President Barack Obama threatened to veto an emerging deal after the midterms that would have added close to half a trillion to the debt over a decade, the scaled-back bill was all Congress could muster.

The tax extenders bill passed by 76 votes to 16. Joining Iowa's senators in the yes column were possible GOP presidential candidates Cruz, Rand Paul, and Marco Rubio. Opponents of this bill included Republican Rob Portman and Democrat Elizabeth Warren. Independent Bernie Sanders, who is exploring a presidential campaign as a Democrat, missed yesterday's votes because he was in Iowa.

Any relevant comments are welcome in this thread. Grassley's official statement on the tax extenders bill is after the jump.

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Senate roundup: Harkin, Grassley against funding deal, split on other votes

by: desmoinesdem

Sun Dec 14, 2014 at 10:27:58 AM CST

Senator Tom Harkin cast his last votes in Congress over the weekend. After the jump I've posted the video and full transcript of Harkin's final speech on the U.S. Senate floor, delivered on December 12. He and Iowa's senior Senator Chuck Grassley were at odds in many roll-call votes these past two days. However, they both voted against the $1.1 trillion government funding bill senators passed late Saturday night. The 56 to 40 roll call reveals an unusual bipartisan split. Yes votes came from 32 Democrats and 24 Republicans, while 21 Democrats and 19 Republicans voted no. Liberals like Harkin found plenty to dislike in the so-called "cromnibus" spending bill. Notably, it included a big change to the Dodd-Frank financial reform law, which was literally written by one of the large banks that will benefit. The spending bill also includes a "big coal giveaway", big cuts to the Environmental Protection Agency budget, and several other bad environmental provisions. What Democrats supposedly got out of the "cromnibus" wasn't worth it in my opinion.

Just before the final vote on the spending bill, Senator Ted Cruz of Texas raised a constitutional point of order:

"If you believe President Obama's executive order was unconstitutional vote yes," Cruz said ahead of the vote on Saturday. "If you think the president's executive order is constitutional vote no."

Only 22 senators voted with Cruz and 74 voted against his point of order.

The roll call shows that Grassley was one of the Republicans who voted for the point of order. The group included several senators who may run for president (Rand Paul, Marco Rubio, Rob Portman) and a bunch of Republicans who are up for re-election in 2016 and presumably want to avoid a GOP primary challenge.

Many of the Republicans who opposed Cruz's motion (including the Senate GOP leadership team) probably were motivated by the desire to avoid a government shutdown. Nevertheless, they are now on record voting no when Cruz said such a vote signified a belief that "the president's executive order is constitutional."

Also on Saturday, senators approved on party lines a series of motions to advance judicial nominees. Here Harkin and Grassley were on opposite sides. In fact, disagreements over whether to vote on these nominations delayed a final vote on the spending bill. Harkin and other Democrats backed all the nominations. Grassley will chair the Senate Judiciary Committee when the new Congress convenes and has promised more vigorous oversight of nominations. He objected to moving the judicial nominations during the lame-duck session, even though many of the nominees were non-controversial and had been approved by a Judiciary Committee voice vote. In fact, Republican senators from Illinois and Texas had recommended some of these nominees for federal judgeships.

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Chutzpah alert: Branstad as defender of the separation of powers

by: desmoinesdem

Wed Dec 03, 2014 at 19:58:40 PM CST

In the busy days before Thanksgiving, I missed this unintentional comedy from Governor Terry Branstad's weekly press conference (hat tip to Todd Dorman):

"There's also a constitutional question about whether the president of the United States has the authority to act unilaterally on issues like this [immigration policy]," Branstad said. "So I expect there's going to be a lot of unanswered questions that I need to get information about and what the impact would have on our state."

Asked if he would take executive action on state immigration policy, Branstad responded, "We don't operate that way in Iowa."

"That's the difference between Washington, D.C., and Iowa," Branstad said. "In Iowa, I'm very careful to recognize the separation of powers and to work with the Legislature."

Where to begin?

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Supreme Court denies Muscatine polluter's last-ditch effort to block nuisance lawsuit

by: desmoinesdem

Tue Dec 02, 2014 at 09:55:00 AM CST

A group of Muscatine residents will be able to pursue their nuisance lawsuit against the Grain Processing Corporation, one of the area's major polluters for many years. Yesterday the U.S. Supreme Court refused to hear the company's appeal of a unanimous Iowa Supreme Court decision allowing the lawsuit to be heard in Iowa District Court. The company had argued that the federal Clean Air Act preempts claims like the ones the Muscatine residents are making. (You can see Grain Processing Corp v. Freeman, Laurie, et al on a long list of cases in which the Supreme Court denied certiorari.)

There is no guarantee that the Muscatine residents will win their nuisance lawsuit, but now a District Court will consider the merits of their case. Plaintiffs claim that the Grain Processing Corporation's facility exposes locals to dangerous levels of air pollution, damages their property, and reduces property values.

UPDATE: Jason Liegois reported for the Muscatine Journal,

Environmental groups, including Clean Air Muscatine, supported the lawsuit, but business groups said regulation of air pollution should be left to state and federal agencies and not judged on a case-by-case basis.

"We are disappointed in the decision" GPC spokesperson Janet Sichterman, stated in an to the Muscatine Journal. "GPC, and others, strongly contend that regulation of air emissions is not the responsibility of the courts, rather the responsibility of the EPA and the Iowa Department of Natural Resources (IDNR)."

Sichterman also pointed out GPC's plan to transition from using coal to natural gas boilers, which would nearly eliminate sulfur dioxide and lead, among other emissions. The company is doing this as part of an agreement between the state and GPC, which also saw the company pay a $1.5 million fine to settle a lawsuit against the company filed by Iowa Attorney General Tom Miller. In addition, GPC is investing nearly $100 million in a dryer house project and other environmental control technology. [...]

GPC, a subsidiary company of the Muscatine-based Kent Corp., operates a plant that turns corn kernels into products ranging from corn syrup to ethyl alcohol. A regional economic force, the company buys $400 million in corn from farmers annually and is one of the area's largest employers. [...]

Sichterman said the case is in the discovery phase, where it is expected to remain until at least the summer of 2015.

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House sues Obama administration over health care reform law

by: desmoinesdem

Mon Nov 24, 2014 at 07:35:00 AM CST

On Friday the U.S. House of Representatives filed a federal lawsuit challenging several aspects of how the Obama administration has implemented the 2010 Affordable Care Act. You can read the plaintiffs' full case here (pdf) against two cabinet secretaries and the agencies they lead. The main arguments are that the Obama administration broke the law by delaying the employer mandate to provide health insurance, and also by providing certain payments to health insurance companies without having Congress appropriate those funds. The first point was expected, but the second argument surprised even those who have closely followed the political battle over Obamacare. Sarah Kliff explained the challenged payments and how they fit into the law. Ashley Parker reported for the New York Times, "If the lawsuit is successful, poor people would not lose their health care, because the insurance companies would still be required to provide coverage - but without the help of the government subsidy, the companies might be forced to raise costs elsewhere."

In contrast, the legal challenge to delaying the employer mandate is more "symbolic," as that provision of the Affordable Care Act will have gone into effect by the time this lawsuit works its way through federal courts.

House Republicans voted to authorize this lawsuit shortly before going on a long summer recess. Iowa's four representatives split on party lines, with Republicans Tom Latham (IA-03) and Steve King (IA-04) supporting the measure and Bruce Braley (IA-01) and Dave Loebsack (IA-02) opposed, along with every other House Democrat present. At the time, the lawsuit was perceived as House Speaker John Boehner's way of deflecting conservative sentiment toward drafting articles of impeachment. At times this fall, Congress-watchers wondered whether the lawsuit would go forward, as two major law firms worked on the case for a while before declining to participate in litigation. A conservative legal scholar eventually took the case.

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Senate roundup: Harkin, Grassley split on Keystone XL, limits on NSA spying, and judges

by: desmoinesdem

Wed Nov 19, 2014 at 12:53:16 PM CST

Iowa's Senators Chuck Grassley and Tom Harkin rarely found themselves in agreement during a busy day on the Senate floor yesterday. A bill to force approval of the Keystone XL pipeline project fell one vote short of the 60-vote threshold to defeat a filibuster. The roll call shows that Grassley was among the 59 yes votes (all Republicans plus 14 Democrats), while Harkin was among the 41 Democrats who defeated the bill. Scroll to the end of this post to read Grassley's statement on the failure to pass this measure. He backs an "all-of-the-above approach to meet the country's energy needs and give consumers choice." He does not address the reality that oil transported via Keystone XL would likely be sold to foreign markets, having no effect on domestic gasoline prices.

Although several of the pro-Keystone Democrats just lost their seats in this year's elections, nine of them will continue to serve next year. That means future Senate Majority Leader Mitch McConnell will have the votes to overcome a filibuster of future bills on the pipeline. He won't have the 67 votes needed to overcome a presidential veto, but Republicans have vowed to attach Keystone language to "must-pass" bills that President Barack Obama won't want to veto.

Senators also blocked a bill that would have attempted to rein in domestic surveillance by the National Security Agency. Timothy B. Lee wrote a good backgrounder on the USA Freedom Act. The cloture vote failed by 58 to 42. Like almost all the Senate Democrats, Harkin voted for proceeding to debate the bill. Like all but four Republicans, Grassley voted to block efforts to reduce NSA spying on Americans. Members of Congress will revisit this issue next year, but I'm not optimistic any reforms will pass.

Side note: among the senators who are possible Republican presidential candidates in 2016, Ted Cruz voted for the USA Freedom Act. Rand Paul and Marco Rubio voted no. Paul opposed the bill because it did not go far enough, in his view; Rubio voted no because he thought the bill would increase the risk of terrorist attacks in this country.

Last week and this week, the Senate has moved forward on several nominees for vacant judicial spots on U.S. district courts. Harkin supported confirming all of the president's nominees. Grassley voted against cloture on all of the nominations, but Republicans were not able to block any of them from a vote on the floor, because the 60-vote threshold no longer applies to most confirmations. (That could change when Republicans take control of the chamber in the new year.) On the confirmation votes themselves, Grassley opposed most of the judges nominated by the president, with one exception last week and another exception yesterday. Many expect judicial confirmations to stop happening when Grassley becomes chair of the Senate Judiciary Committee, but perhaps he will let a few non-controversial nominees through.

A bill reauthorizing the Child Care and Development Block Grant gained massive bipartisan support on Monday, passing by 88 votes to 1. Both Grassley and Harkin backed this bill. In a statement I've enclosed after the jump, Harkin explained how this bill "will expand access to and improve the quality of child care for the more than 1.5 million children and families that benefit from the federal child care subsidy program." President Obama signed this bill today, and Representative Dave Loebsack (D, IA-02) attended the ceremony. He worked on the bill as ranking member of the House Education and Labor subcommittee that covers early childhood issues. I posted Loebsack's statement below Harkin's.

Any relevant comments are welcome in this thread.

Note: Over the years I've written dozens of posts about Grassley and Harkin splitting on Senate votes. I expect that to end for the most part in January. If Joni Ernst votes differently from Grassley even five times over the next two years, I'll be shocked.

UPDATE: Added after the jump some of Harkin's recent comments on the Keystone XL pipeline.

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Weekend open thread, with health care reform links

by: desmoinesdem

Sat Nov 15, 2014 at 23:20:00 PM CST

What's on your mind this weekend, Bleeding Heartland readers? This is an open thread.

The enrollment period for 2015 health insurance coverage began today and runs through February 15. Approximately "23,000 people nationwide successfully submitted applications to enroll or re-enroll in health insurance plans" today at Healthcare.gov. The Obama administration has set a target of 9.1 million enrollees for 2015. As of this past April, approximately 29,000 Iowans had selected a health insurance plan through the federal marketplace. But roughly double that number are eligible to enroll in a marketplace plan.

Democrats in the Iowa Senate advocated for creating a state portal where Iowans could buy health insurance under the 2010 Affordable Care Act. However, Governor Terry Branstad and Iowa House Republicans refused to go along, perhaps hoping that the health care reform law would be overturned in court or soon after the 2012 presidential election. So, Iowa formed a "partnership" exchange, whereby the state regulates insurance plans, but citizens purchase those plans on the website created and maintained by the federal government. That political decision may prove costly for tens of thousands of Iowans and millions of people in more than 30 other states.

On November 7, the U.S. Supreme Court agreed to hear an appeal that could end tax credit subsidies for all Americans who purchase health insurance plans through the federal website. The SCOTUS blog has compiled links on the King v Burwell case here. Jonathan Cohn provides a concise explanation of how the lawsuit could "wreck Obamacare" if a Supreme Court majority finds in favor of plaintiffs, who argue that subsidies should be available only to people who purchase insurance on state exchanges.

Brianne Gorod argues here that the Supreme Court should "recognize what the statutory text makes clear, and the structure, purpose, and history of the statute all confirm: tax credits and subsidies should be available on all exchanges, state-run and federally facilitated."

Michael Cannon argues the opposite side here: namely, that the Affordable Care Act "makes no provision for subsidies in federally established exchanges."

Chief Justice John Roberts is a highly political, results-oriented judge rather than a consistent legal theorist. Will he seize this chance to destroy Obamacare, or will he allow the current system to survive, as he did in the Supreme Court ruling that left most of the Affordable Care Act intact?

The outcome of King v. Burwell should not affect roughly 105,000 Iowans who have received health insurance coverage under the Iowa Health and Wellness Plan, the compromise alternative to simple Medicaid expansion in this state. According to a report by the Iowa Policy Project, those people "previously were not eligible for Medicaid or who were enrolled only in the IowaCare program." (IowaCare benefits were inferior to Medicaid in various ways.) Iowa hospitals have benefited from these policy changes, as they provided much less uncompensated care to uninsured Iowans during the first half of this year compared to the previous year.

UPDATE: Added after the jump excerpts from the Des Moines Register's unsigned editorial published on November 17. The editors note the irony of conservatives who oppose the Affordable Care Act hoping that "activist judges" will help unravel it.

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Five reasons Teresa Wahlert's days are numbered at Iowa Workforce Development

by: desmoinesdem

Thu Nov 13, 2014 at 10:15:00 AM CST

I don't expect Governor Terry Branstad to replace many state agency leaders going into his sixth term, but before too long he will need to find a new head of Iowa Workforce Development. Although he will probably nominate Teresa Wahlert for that post again, the Iowa Senate will likely reject her confirmation. Here's why:

1. Wahlert needs at least ten Democrats to join the 24 incoming Iowa Senate Republicans in order to be confirmed. She was confirmed in 2011 with only two votes to spare; two of the twelve Democratic senators who backed her then no longer serve in the Iowa legislature, and several who remain in the Senate have been critical of various Branstad administration policies implemented by Wahlert.

2. Wahlert presided over dismantling staffed Iowa Workforce Development field offices in dozens of communities, following a Branstad line-item veto that was eventually struck down by a unanimous Iowa Supreme Court.

3. Wahlert is a defendant in a lawsuit filed by former Iowa Workers' Compensation Commissioner Chris Godfrey. Depositions are happening soon in that case, following an Iowa Supreme Court ruling earlier this year.

4. Wahlert is also a defendant in a lawsuit filed by Joseph Walsh, the former Chief Administrative Law Judge for Iowa Workforce Development. Among other things, Walsh alleges that Wahlert "interfere[d] with the administrative judicial process in order to favor employers," attempted "to illegally strip [Walsh] of his merit protection," and eventually retaliated by removing him in "a political reorganization disguised as a budget layoff."

5. Just this week, an arbitrator ruled that Wahlert "overstepped her bounds when she promoted a judge who had been demoted after complaints that she created a hostile work environment." After the jump I've posted excerpts from David Pitt's report for the Associated Press.

No wonder State Senator Janet Petersen has predicted that Wahlert would face a tough confirmation process if re-appointed by Branstad. He could save everyone a lot of time by choosing new leadership for Iowa Workforce Development.

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Will judicial confirmations grind to a halt under Chairman Grassley?

by: desmoinesdem

Mon Nov 10, 2014 at 09:05:00 AM CST

As a 34-year incumbent, U.S. Senator Chuck Grassley will have a choice among leading the Senate's Finance, Judiciary or Budget committees when the new Congress convenes in January. In a statement to the Des Moines Register yesterday, he said he will pick the Judiciary Committee.

"Oversight is too often overlooked as Congress focuses on new legislation [...] So, anybody who knows my efforts in this area will understand that the Judiciary Committee's work will reflect that sentiment. My goal is to promote transparency and accountability and restore the committee's role as a true check on the massive and powerful federal bureaucracy." [...]

"The Judiciary Committee should not be a rubber stamp for the president," he said. "However, as I have as ranking member, I will work to confirm consensus nominees. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.

"Judges are to decide cases and controversies - not establish public policy or make law," he said.

Sounds like under Grassley's leadership, the Judiciary Committee will approve few, if any, of President Barack Obama's judicial nominees for a vote on the Senate floor. I would guess that only conservative-leaning judges will meet the new chairman's standard for "consensus." Other political observers have reached the same conclusion (see also here). In recent years, Grassley and his fellow Republicans blocked confirmation votes on numerous judicial nominees, including everyone the president picked for the D.C. Circuit Court of Appeals regardless of qualifications. The standoff prompted Senate Democrats to sharply curtail the use of the filibuster on presidential nominations. Grassley and other Republicans warned at that time that someday they tables would be turned.

Taking a contrarian view, the non-profit Alliance for Justice argues here that "no one should give up on judicial confirmations in a Republican-controlled Senate." I've posted excerpts from that piece after the jump, but it's worth clicking through to read in full.

I also enclose below Grassley's official comment on U.S. Attorney Loretta Lynch, whom the president has tapped to be the next attorney general. Grassley has been a vocal critic of outgoing Attorney General Eric Holder. The Judiciary Committee holds confirmation hearings on attorney general nominees.

UPDATE: Added more comments from Grassley on his role and the role of the Senate Judiciary Committee.

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U.S. Supreme Court rejects appeal of defamation case based on Iowa political ad

by: desmoinesdem

Tue Oct 14, 2014 at 10:25:00 AM CDT

Hot off the press: the U.S. Supreme Court has declined to hear Republican State Senator Rick Bertrand's appeal of a Iowa Supreme Court ruling rejecting his defamation case. Bertrand's lawsuit stemmed from a negative ad the Iowa Democratic Party ran against him during his 2010 campaign against Rick Mullin. To my surprise, Bertrand won significant damages in a jury trial, and a partial victory at the Iowa District Court level. The district court judge reduced the damages awarded to Bertrand but determined that the controversial television spot constituted "implied libel."

Both Bertrand and the defendants in the defamation case (Mullin and the Iowa Democratic Party) appealed to the Iowa Supreme Court, which heard the case in January. In May, justices unanimously dismissed the case. Bleeding Heartland posted key excerpts from that unanimous ruling here. You can read the full decision here (pdf).

Bertrand's only option left was a U.S. Supreme Court appeal. I never thought he would get far with this lawsuit, because of extensive case law supporting strong protections for political campaign speech, as well as a high bar for any public figure claiming defamation (libel or slander).

Today, Bertrand v. Mullin et al appeared on a long list of cases in which the U.S. Supreme Court denied certiorari.

UPDATE: Bertrand reacted to today's news on his twitter feed. I've added those comments below. He still doesn't have a grasp of the First Amendment issues.

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End of the road for opponents of marriage equality? (updated)

by: desmoinesdem

Mon Oct 06, 2014 at 16:15:47 PM CDT

When the U.S. Supreme Court struck down the federal Defense of Marriage Act last year, justices side-stepped the issue of state bans on same-sex marriage, either by statute or by constitution. Since that time, various U.S. Courts of Appeal have struck down state-level bans, using reasoning similar to the high court's in U.S. v. Windsor. Today, the U.S. Supreme Court announced it will not hear appeals of five such rulings. As Adam Liptak reported for the New York Times, the move "may signal the inevitability of a nationwide right to same-sex marriage."

The development, a major surprise, cleared the way for same-sex marriages in Indiana, Oklahoma, Utah, Virginia and Wisconsin. Officials in Virginia announced that marriages would start at 1 p.m. on Monday.

The decision to let the appeals court rulings stand, which came without explanation in a series of brief orders, will almost immediately increase the number of states allowing same-sex marriage from 19 to 24, along with the District of Columbia. The impact of the move will in short order be even broader.

Monday's orders let stand decisions from three federal appeals courts with jurisdiction over six other states that ban same-sex marriage: Colorado, Kansas, North Carolina, South Carolina, West Virginia and Wyoming. Those appeals courts will almost certainly follow their own precedents to strike down those additional bans as well, meaning the number of states with same-sex marriage should soon climb to 30. [...]

Other appeals courts are likely to rule soon on yet other marriage bans, including the United States Court of Appeals for the Ninth Circuit, in San Francisco. That court has jurisdiction over nine states. If it rules in favor of same-sex marriage, as expected, it is unlikely to enter a stay, and, given Monday's developments at the Supreme Court, there is no particular reason to think the justices will.

It's all over but the shouting. And speaking of shouting, I've enclosed below the reaction to today's news from the FAMiLY Leader organization, which spearheaded the backlash against the Iowa Supreme Court over its 2009 decision in Varnum v Brien. No Iowa Supreme Court justices are up for retention this year. The remaining three justices who were part of the Varnum ruling will be up for retention in 2016: Chief Justice Mark Cady (author of that unanimous decision), Justice Brent Appel, and Justice Daryl Hecht.

The Alliance for Justice has compiled details on every federal court ruling related to marriage equality here. That organization's president, Nan Aron, said in a statement today, "It is disappointing that the Supreme Court declined to take any of the marriage equality cases decided by federal appeals courts.  In 2013, in its decisions on the so-called Defense of Marriage Act and on Proposition 8, the Supreme Court began to bend the arc of history toward justice on this issue. By declining to take these cases, the Court passed up an opportunity to finish the job."

Any relevant comments are welcome in this thread. UPDATE: Wisconsin Governor Scott Walker is not going to fight against marriage equality in Wisconsin anymore. Accepting reality may work against him if he runs in the 2016 Iowa Republican caucuses.

SECOND UPDATE: I've enclosed below a statement from Republican Party of Iowa Co-Chair Cody Hoefert. I am intrigued that Iowa GOP Chair Jeff Kaufmann doesn't seem interested in speaking out on this issue anymore. In 2011, he voted for a state constitutional amendment defining marriage as between one man and one woman. Kaufmann retired in 2012, and his son Bobby Kaufmann was elected to succeed him in the Iowa House. Bobby Kaufmann declined to co-sponsor a marriage amendment in 2013.  

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Lawsuit fails to block California egg production law, with Iowa reaction (updated)

by: desmoinesdem

Mon Oct 06, 2014 at 08:03:51 AM CDT

Catching up on news from last week, on October 2 U.S. District Court Judge Kimberly Mueller threw out a lawsuit brought by six states, including Iowa, seeking to block California's law on egg production standards. Governor Terry Branstad joined that lawsuit in March, after Representative Steve King failed to use the federal Farm Bill as a vehicle for overturning the California law.

Bleeding Heartland covered the plaintiff's case against the egg production standards here. I predicted the lawsuit would fail because "1) the law does not 'discriminate'; 2) the law does not force any conduct on egg producers outside the state of California; and 3) overturning this law would prompt a wave of lawsuits seeking to invalidate any state regulation designed to set higher standards for safety, public health, or consumer protection."

In fact, the case never got to the point of the judge considering those legal arguments. If I were an attorney, I might have foreseen the reason Judge Mueller dismissed the lawsuit: lack of standing. You can download the 25-page ruling here (document number 102) and read pages 15 to 23 to understand her full reasoning. Daniel Enoch summarized it well for AgriPulse:

"Plaintiffs' arguments focus on the potential harm each state's egg farmers face," Mueller wrote in her 25-page decision. "The alleged imminent injury, however, does not involve an injury the citizens of each state face but rather a potential injury each state's egg farmers face when deciding whether or not to comply with AB 1437." In other words, they failed to show that the law does real harm to citizens, instead of possible future harm to some egg producers.

"It is patently clear plaintiffs are bringing this action on behalf of a subset of each state's egg farmers," Mueller wrote, "not on behalf of each state's population generally."

Mueller dismissed the case "with prejudice," meaning plaintiffs cannot amend their claim and re-file. Plaintiffs including Iowa Attorney General Tom Miller are considering their legal options. While they could appeal the dismissal, I doubt they would prevail in a U.S. Appeals Court.

The Des Moines Register's write-up by Matthew Patane and Donelle Eller highlighted the alleged harm California's law will do to Iowa agriculture when it goes into effect on January 1. I've posted excerpts after the jump. I was disappointed that the Register's reporters led with the spin from "Iowa agricultural leaders" and buried in the middle of the piece a short passage explaining why the lawsuit failed (states can't serve as a legal proxy for a small interest group). Patane and Eller did not mention that if courts accept the reasoning of egg law opponents, a possible outcome would be invalidating any state law or regulation designed to set higher standards for safety, public health, or consumer protection.

Comments provided to the Register by Governor Branstad, Iowa Secretary of Agriculture Bill Northey, and others reinforce Judge Mueller's determination that the lawsuit was designed to protect a group of agricultural producers rather than citizens as a whole. A lot of Iowa Democrats bought into the poultry producers' industry constitutional arguments as well.

UPDATE: Added below Branstad's latest comments. He is either confused about the ruling or determined not to acknowledge the real legal issue.

SECOND UPDATE: Added comments from Representative Steve King and Sherrie Taha, the Democratic nominee for Iowa Secretary of Agriculture.

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Iowa Senate Democrats roll out state government reforms

by: desmoinesdem

Wed Oct 01, 2014 at 15:00:00 PM CDT

The Iowa Senate Oversight Committee met yesterday to approve a wide range of recommendations on state government management, contracting, and labor practices. O. Kay Henderson posted audio from the committee meeting at Radio Iowa. On a 3-2 party-line vote, Democrats on the committee approved recommendations in the following nine areas:

• A ban on secret settlements and hush money
• Expanded whistleblower protections
• Anti-cronyism measures
• Reform of the state's "do-not-hire" database
• A ban on no-bid contracts for state projects
• Increase accountability in state infrastructure projects
• Protect Iowans right to fair hearings by preventing political appointees and at-will employees from supervising or evaluating judges
• Restore integrity to Iowa's unemployment trust fund by appointing trusted and transparent leadership
• Require that the Legislature be notified when the Governor receives reports of founded workplace violence in state agencies.

One of the Republicans who voted against the recommendations, State Senator Julian Garrett, characterized the Democratic proposals as "political theater" not "borne out by the facts."

"No laws were broken. No codes of ethics were violated," Garrett said. "Instead, we have discovered that there is a difference of opinion in management philosophies...and we have learned that sometimes front-line workers don't care for or particularly agree with their bosses."

In Garrett's view, Governor Terry Branstad is running the state "exceptionally well" and should get more credit for ending secret settlements through an executive order. However, witnesses appearing before the Iowa Senate Oversight Committee in recent months testified to many problems in state government beyond settlements that included confidentiality clauses (which were the first scandals to get widespread attention). Committee Chair Janet Petersen mentioned several of them in her opening remarks for yesterday's meeting. After the jump I've posted a more detailed list of recommendations, along with findings that prompted them. Whether these proposals go anywhere during the 2015 legislative session will depend on party control of the Iowa House and Senate after the November election.

Rod Boshart paraphrased Petersen as predicting that if Branstad is re-elected, several of his appointees who were involved in these scandals may have trouble being confirmed by the Iowa Senate, "notably Iowa Workforce Development Director Teresa Wahlert."

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Iowa Supreme Court allows "telemed" abortions to continue pending appeal

by: desmoinesdem

Tue Sep 16, 2014 at 21:35:00 PM CDT

The Iowa Supreme Court has put a stay on a state rule prohibiting doctors from prescribing abortifacient drugs to patients through a videoconferencing system, according to an e-mail blast from Planned Parenthood of the Heartland this evening. Excerpt:

Today, the Iowa Supreme Court extended the stay on the Iowa Board of Medicine's telemedicine abortion ban, ensuring that thousands of women in Iowa will continue to have access to safe, constitutionally protected abortion while we fight to permanently reverse the ban.

As our fight for Iowa women continues, we're pleased that the court has upheld this right, and we're proud to continue to provide the same exceptional care that we always have, no matter what.

We also are gratified that the American College of Obstetricians and Gynecologists (ACOG) filed an amicus brief supporting PPHeartland's request for a stay. This important group of medical providers understands and agrees that a woman and her doctor - not politicians - should be making personal health care decisions.

Planned Parenthood recently appealed last month's Polk County District Court ruling that allowed the rule adopted by the Iowa Board of Medicine to go into effect. Bleeding Heartland summarized the key points in the case here. Seven of Planned Parenthood's nine Iowa clinics that offer abortion services have been using the telemedicine system. If the state rule had been implemented pending appeal, women would have had to drive to clinics in either Iowa City or Des Moines in order to access medical abortions in the presence of a doctor.

At this writing, the judicial order has not yet been posted on the Iowa Courts website. I will update with a link when available.  

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Iowa judge sentences medical marijuana user to probation

by: desmoinesdem

Wed Sep 10, 2014 at 13:27:00 PM CDT

In a case being watched by medical marijuana advocates across the country, cancer patient Benton Mackenzie received three years of probation rather than a prison term for his conviction in July on drug charges. Mackenzie had grown marijuana plants on his parents' property in order to extract cannabis oil, and his wife and son also faced drug charges. At the trial, District Court Judge Henry Latham did not allow Mackenzie's attorney to tell the jury that the defendant was trying to treat his angiosarcoma. Yesterday, the same judge sentenced both Mackenzie and his wife Loretta Mackenzie to probation, in line with the prosecutor's recommendation in the case. After the jump I've posted excerpts from Brian Wellner's report for the Quad-City Times and Grant Rodgers' report for the Des Moines Register. Libertarian candidate for governor Lee Hieb, a medical doctor, attended yesterday's hearing and afterward called for a change in public policy to give people "the right to choose our own cancer care." Mackenzie expressed hope that he will be the "last person" to be prosecuted under similar circumstances.

The Mackenzie family wants to move to Oregon, where a doctor has approved Benton Mackenzie for participation in that state's medical marijuana program. Probation officers in Iowa would have to sign off on the move before the family could leave the state. Mackenzie also plans to appeal "in an effort to get the Iowa Supreme Court to reconsider its decision in a 2005 case that bars Iowans from using claims of medical necessity as a defense to growing marijuana."

I still think it was a waste of taxpayer money to prosecute a critically ill person for growing marijuana intended for personal use. Iowa lawmakers should make cannabis more accessible to people who can demonstrate a medical need for it.

LATE UPDATE: Judge Latham sentenced Benton Mackenzie's close friend Stephen Bloomer to five years in prison for helping the cancer patient buy materials for growing marijuana. Bloomer is free on bond pending consideration of his appeal. Scroll to the end of this post for more details on that case. What a travesty.

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Planned Parenthood appeals to Iowa Supreme Court in telemedicine case

by: desmoinesdem

Fri Aug 29, 2014 at 14:41:00 PM CDT

Yesterday Planned Parenthood of the Heartland asked the Iowa Supreme Court to put on hold a state rule banning the use of "telemedicine" for medical abortions. A Polk County District Court recently upheld that rule, on grounds Bleeding Heartland discussed here. Planned Parenthood argues that it is likely to succeed on the merits when the Iowa Supreme Court considers its appeal of the lower court ruling, that the state ban would "irreparably harm" Planned Parenthood and its patients, and that a temporary injunction on the rule while the appeal is pending "will not harm the interests of the other parties or the public." A stay on the rule would allow women to continue to receive medical abortion access at seven Planned Parenthood clinics across Iowa where the teleconferencing system is available.

The Des Moines Register posted the full text of Planned Parenthood's motion filed yesterday. After the jump I've posted key excerpts, which preview the substance of Planned Parenthood's appeal.

I'm not an attorney, but my hunch is that the Iowa Supreme Court will overturn the lower court ruling--perhaps with two or three dissenters who would defer to the Board of Medicine, along the lines of the dissents in a recent case involving the Iowa Utilities Board.

To my mind, Planned Parenthood's strongest argument is that the Iowa Board of Medicine approved a rule that "singles out abortion, banning telemedicine delivery of this service while encouraging other uses of telemedicine." A Des Moines Register editorial published earlier this week underscored the hypocrisy of that position. I've enclosed excerpts from that piece at the end of this post. Governor Terry Branstad and others in his administration have celebrated the use of telemedicine in many ways that involve doctors or pharmacists dispensing medications without ever being in the same room as their patients.

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District Court upholds Iowa rule banning "telemedicine" abortions

by: desmoinesdem

Tue Aug 19, 2014 at 22:46:10 PM CDT

A Polk County District Court today upheld a rule adopted by the Iowa Board of Medicine last year, which would prohibit Planned Parenthood of the Heartland from providing medical abortions using "telemedicine" (where a doctor meets with the patient via videoconferencing). You can read the full text of Judge Jeffrey Farrell's ruling here. After the jump I've summarized Judge Farrell's key findings, including background on the case and excerpts from his decision. I've also enclosed reaction from both sides in the telemedicine abortion debate, as well as from Governor Terry Branstad and Democratic challenger Jack Hatch.

Judge Farrell's ruling goes into effect in 30 days, but Planned Parenthood has already said it will appeal, so the Iowa Supreme Court may put another stay on the rule pending its hearing of the case.

I'm surprised by this ruling. In a November 2013 decision granting Planned Parenthood's request for a stay of the rule, Polk County District Court Judge Karen Romano sounded skeptical that rule would be upheld when courts considered the merits. She noted the lack of evidence of any adverse outcomes in more than 5,000 abortions using Planned Parenthood's telemedicine system, the "peculiar" fact that the Board of Medicine required an in-person meeting between a patient and doctor for abortion services, but not for other telemedicine practices, and the likelihood that denying rural women access to medical abortion would increase demand for "surgical abortion, which is much more invasive and risky." UPDATE: In the comments, Bleeding Heartland reader ahawby notes several factors that could have influenced Judge Farrell's perspective on this case.

Today's decision is a victory for opponents of abortion rights, because Iowa women in small towns and rural areas will face more hurdles to obtain abortions early in pregnancy. It's also a personal triumph for Branstad's legal counsel, Brenna Findley. As Judge Farrell's ruling acknowledges, Findley was a vocal advocate of the rulemaking, urging the Board of Medicine to act quickly on the petition from pro-life activists, against the advice of the board's own legal counsel as well as the Iowa Attorney General's office.

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Three reasons Rick Perry's indictment will help him with Iowa Republicans

by: desmoinesdem

Tue Aug 19, 2014 at 10:54:25 AM CDT

Being charged with a crime is rarely good news for any public figure, but it looks like Texas Governor Rick Perry will be the exception that proves the rule.

Not only will his presidential aspirations survive the criminal case launched against him last last week, the governor's prosecution will improve his standing among Iowa Republicans, for three reasons.

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Terry Branstad's misguided view of fighting for Iowa agriculture

by: desmoinesdem

Tue Aug 12, 2014 at 10:09:07 AM CDT

Speaking to a small crowd at the Iowa State Fair yesterday, Governor Terry Branstad said he was "proud as governor to have stood up for and fought for the interests of agriculture." You can watch the video on the Des Moines Register's website and read highlights in O.Kay Henderson's report for Radio Iowa or Jason Noble's summary for the Register:

He described his defense of Beef Products Inc. and its lean finely textured beef against charges that it was unhealthy "pink slime"; his support for wind energy; his efforts to maintain the current renewable fuel standard for ethanol content in gasoline; and his opposition to California chicken cage standards that could harm Iowa egg producers.

Branstad certainly was a vocal advocate for "pink slime," even depicting the product as some kind of superior health food. He's eager to defend one company's use of methods many consumers find repulsive, but I doubt the Terrace Hill chef is serving him many meals containing lean finely-textured beef.

Renewable energy advocates in Iowa would not characterize Branstad as a champion for wind. I've never heard of him lifting a finger to support "distributed generation" policies, which would benefit a much broader group of farmers and landowners than the large wind farms now dotting rural Iowa.

True, the governor has argued strenuously for maintaining the Renewable Fuels Standard, contradicting his usual stance against "big government regulations" and federal mandates. However, it's debatable whether the RFS is as important to Iowa's economy as some interest groups claim.

Branstad can pander all he wants about "the State of California with its wacky ideas," but the lawsuit he joined on behalf of Iowa is lacking in logic and unlikely to overturn California's egg law. It's also ironic that a governor who claims to oppose "activist judges" is pinning his hopes on them in this case and in another lawsuit challenging a different California law.

Meanwhile, Branstad has either done nothing or actively impeded solutions on several issues that pose an enormous threat to Iowa agriculture. We're losing world-class topsoil at an alarming rate, diminishing the future productivity of our land. Yet Branstad vetoed millions of dollars this year for Iowa watershed and land stewardship projects. Nor has he ever proposed funding the Natural Resources Trust Fund, which Iowa voters approved four years ago.

"Superweeds" resistant to the most prevalent herbicides are spreading across Iowa. Branstad has never advocated for or promoted more sustainable farming methods, which could address the weed problem more effectively than dumping more toxic chemicals on the land. Incidentally, Big Ag's preferred approach to battling superweeds could could put a lot of Iowa vineyards and fruit growers out of business--never mind the potential risks to human health.

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Weekend open thread: Crime and punishment edition

by: desmoinesdem

Sat Aug 09, 2014 at 20:58:44 PM CDT

What's on your mind this weekend, Bleeding Heartland readers? This is an open thread.

Late last week, a Virginia medical examiner determined that James Brady's recent death was a homicide, stemming from John Hinckley's attempt to assassinate President Ronald Reagan in 1981. I would be interested to hear from readers more familiar with the criminal justice system about precedent for charging someone with murder when more than three decades elapsed between the fatal wound and the victim's death. The U.S. Attorney's office had no comment other than to say that they are reviewing the coroner's report. If prosecutors charge Hinckley with murder, they could get around double jeopardy questions, as Hinckley was never tried for murder before. But since his previous trial ended in a verdict of not guilty by reason of insanity, it seems that it would be quite difficult for prosecutors to convince a jury that he is guilty beyond a reasonable doubt of killing Brady.

In one of the last decisions announced from the term that just ended, the Iowa Supreme Court ruled a few weeks ago in State v Lyle that mandatory sentences for juveniles are unconstitutional. You can read the majority ruling and two dissents here. The majority ruling built on but went far beyond a 2012 U.S. Supreme Court ruling that invalidated mandatory sentences of life without parole for convicted killers who were juveniles at the time of the crime. Writing for the 4-3 majority, Chief Justice Mark Cady extended reasoning from three Iowa Supreme Court decisions last year related to juvenile sentencing. Cady is not afraid to be ahead of the curve here. I expect that over the next decade, other courts will take into account the growing body of research on the adolescent brain, and this ruling will be viewed as a harbinger rather than an overreach. Justices David Wiggins, Daryl Hecht, and Brent Appel joined the majority.

In dissent, Justices Thomas Waterman and Bruce Zager argued that the court went too far in the current ruling as well as in the previous juvenile sentencing cases. They held that a seven-year mandatory minimum was not "cruel and unusual punishment" for a violent criminal who happened to be 17 years old at the time of the crime. Justice Edward Mansfield joined both dissents. It's worth noting that the majority opinion didn't say a juvenile couldn't be sentenced to a long prison term--only that a judge must take into account individual circumstances and current knowledge of adolescent brain development when determining a sentence.

Side note: Governor Terry Branstad appeared not to understand this Iowa Supreme Court ruling, or perhaps he deliberately attempted to mislead the public about its implications. Speaking to reporters last month, the governor implied that juveniles who commit violent crimes will now have to be released at age 18. Not at all. The Iowa Supreme Court majority did not hold that juveniles could never be tried as adults, or that juveniles could not be sentenced to long prison terms. Judges simply can't apply to juveniles mandatory formulas designed for adults who committed violent crimes.

Earlier this summer, I never managed to write a post about the idiot "open carry activists" who were hell-bent on walking into chain stores and restaurants heavily armed. Even the National Rifle Association characterized the movement as having "crossed the line from enthusiasm to downright foolishness"--though the NRA wimps soon apologized for offending Open Carry Texas. Thankfully, I haven't encountered this phenomenon in Iowa, but if I see a person or group of people walking heavily armed into a store or restaurant, I will clear out immediately. There's no way to tell whether someone carrying a semiautomatic weapon is an open carry activist or a psychopath about to go on a killing spree, and I wouldn't hang around to find out. This philosophy professor had it exactly right when he pointed out that open carry enthusiasts are different from people who carry concealed weapons: "Those who conceal their guns are ready for trouble, but open-carry activists are looking for it. In general, I don't trust anyone who is looking for trouble."

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