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BREAKING: President Obama Will Veto Congress’ Keystone XL Pipeline Bill

by VilmaHerrmann Posted on January 6, 2015

Mother Jones

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President Barack Obama is planning to veto a bill that would force approval of the controversial Keystone XL Pipeline, according to the Associated Press:

White House Press Secretary Josh Earnest said that the president’s position hasn’t changed since November, when pipeline supporters in Congress last attempted to push through its approval—an effort that fell just one vote shy of the 60 votes needed to pass the Senate. Obama was adamant then that approval for the pipeline come not from Congress, but from the State Department, which normally has jurisdiction over international infrastructure projects like this one. A final decision from State has been delayed pending the outcome of a Nebraska State Supreme Court case, expected sometime early this year, that could alter the pipeline’s route.

Senate Majority Leader Mitch McDonnell and other Republicans have vowed to make passage of a new Keystone XL bill a top priority for the new year, and they seem prepared to move forward with a vote later this week. The bill is likely to pass. But the challenge for Republicans is to garner enough support from Democratic senators to achieve the 67 votes required to override a presidential veto. Yesterday, Sen. John Hoeven (R-N.D.) told reporters he had just 63 votes.

Even if Congress fails to override Obama’s veto, it still won’t be the end of what has become the flagship issue for US climate activists; the possibility remains that the State Department could still approve the project. But the Obama administration may be leaning against approval. In December, the president said the pipeline is “not even going to be a nominal benefit to US consumers.”

This post has been updated.

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BREAKING: President Obama Will Veto Congress’ Keystone XL Pipeline Bill

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Congress will soon approve Keystone, say Republicans

by DaltonHauslaib Posted on January 5, 2015

Congress will soon approve Keystone, say Republicans

By on 5 Jan 2015commentsShare

The new Republican Senate leadership seems to be holding true to its word: Approval for the Keystone XL pipeline will top the 2015 legislative agenda. The head of the Energy and Natural Resources Committee, Sen. Lisa Murkowski (R-Alaska), plans to hold a hearing on the pipeline on Wednesday and introduce a bill to approve it on Thursday.

A pro-Keystone bill came one vote short of passing in the Senate in November — and that was back when Democrats were still in control. This time, Republicans say, newly elected senators such as Shelley Moore Capito (R-W.Va.) and Joni Ernst (R-Iowa) will ensure that there are at least 60 votes, enough to overcome the threat of a filibuster and pass the legislation. But Senate leadership likely still won’t have the 67 votes they’d need to overcome a veto by President Obama, should he issue one.

So, assuming Keystone clears Congress in the next few weeks, how will Obama respond? The president has repeatedly put off making a call on the controversial pipeline, saying he’s waiting for the State Department to finish its assessment of the project. Toward the end of 2014, he was sounding like he wasn’t much a fan — when a Washington Post reporter asked Obama about Keystone last month, he responded that the project would have little positive effect in the U.S.:

“[S]ometimes the way this gets sold is, let’s get this oil and it’s going to come here and the implication is that’s gonna lower oil prices here in the U.S. It’s not. There’s a global oil market. It’s very good for Canadian oil companies and it’s good for the Canadian oil industry, but it’s not going to be a huge benefit to U.S. consumers. It’s not even going to be a nominal benefit to U.S. consumers.”

This would seem to suggest that when Republicans try to force Obama’s hand on the project, they can expect a veto — or at least that’s what climate hawks are hoping.

Keystone is also facing another challenge: Its path through Nebraska is held up by that state’s Supreme Court, which is currently deciding whether the governor wrongly cleared the way for the pipeline through a special legislative session in 2012, instead of letting the state’s Public Service Commission, which usually handles those decisions, make the call. The Nebraska court’s ruling is also expected very soon.

Source:
U.S. Senate panel to introduce Keystone XL bill Thursday

, Reuters.

In Keystone pipeline case, what might Nebraska court do?

, Reuters.

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Congress will soon approve Keystone, say Republicans

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Ferguson Cop Darren Wilson Is Just the Latest to Go Unprosecuted for a Fatal Shooting

by Nan2817kwcxkqfc Posted on November 25, 2014

Mother Jones

After weeks of rising tension in Ferguson and the broader St. Louis region, the St. Louis County grand jury reviewing the death of Michael Brown has decided not to indict Ferguson police officer Darren Wilson, who shot and killed Brown on August 9. Reported leaks during the grand jury proceedings suggested there would be no indictment—and that outcome fits a long-standing pattern. Few police officers who shoot and kill citizens in St. Louis have been investigated by a grand jury, let alone charged by one, according to data from city and county prosecutors.

More MoJo coverage of the Michael Brown police shooting


10 Hours in Ferguson: A Visual Timeline of Michael Brown’s Death and Its Aftermath


Michael Brown’s Mom Laid Flowers Where He Was Shotâ&#128;&#148;and Police Crushed Them


Exactly How Often Do Police Shoot Unarmed Black Men?


The Ferguson Shooting and the Science of Race and Guns


How Many Ways Can the City of Ferguson Slap You With Court Fees? We Counted


Here’s Why the Feds Are Investigating Ferguson

Between 2004 and 2014, there have been 14 fatal officer-involved shootings committed by St. Louis County PD officers alone, according to police data collected by David Klinger, a criminologist at the University of Missouri-St. Louis. That does not include fatal shootings by Ferguson police or by officers from various other law enforcement agencies within the county. Many officer-involved fatalities likely were not subject to grand jury investigations because they were deemed justified by police internal affairs or the local prosecutor’s office, Klinger says. Since 2000, only four cases in all of St. Louis County, including Wilson’s, have been investigated by a grand jury, according to a spokesperson for St. Louis County prosecutor Robert McCulloch’s office. McCulloch’s office declined to provide details to Mother Jones on the three other cases, which it says are closed.

In September, Heather Cole of Missouri Lawyers Weekly used news reports to identify five grand jury investigations of officer-involved fatalities prior to Wilson’s that took place during McCulloch’s tenure, which began in 1991. As with Wilson’s case, none led to an indictment:

Missouri Lawyers Weekly

McCulloch’s record and family ties to the police force sparked controversy in the wake of Brown’s death.

Statistics from the City of St. Louis paint a similar picture: A total of 39 people were fatally shot by police officers between 2003 and 2012; according to the St. Louis Circuit Attorney’s office, only one police officer has been indicted in such a case since 2000, and that officer was acquitted.

Roger Goldman, an expert on criminal procedure and constitutional law at the Saint Louis University School of Law, says that a long-standing Missouri statute gives police officers wide latitude to shoot to kill. The law states they are justified in doing so if they “reasonably believe” their target “has committed or attempted to commit a felony” and deadly force is “immediately necessary to effect the arrest.” According to Goldman, the existence of this law—despite a 1985 Supreme Court ruling suggesting it may be unconstitutional—is one reason why “it’s particularly difficult to get grand juries to indict or prosecutors to even take the case to the grand jury in the first place.”

But with a case like Wilson’s, weeks of high-profile public protests likely pressured the prosecutor’s office to present a case to a grand jury, says Delores Jones-Brown, a law professor at the John Jay College of Criminal Justice. “This way the prosecutor cannot be accused of having made a unilateral biased decision.” Still, the prosecutor has a lot of sway in how a case is presented to the grand jury, she noted.

Prior to the decision in Wilson’s case, McCulloch said he would seek to release transcripts and audio from the grand jury investigation if it resulted in no indictment for Wilson. But it remains unclear whether a circuit court judge will approve that request for transparency.

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Ferguson Cop Darren Wilson Is Just the Latest to Go Unprosecuted for a Fatal Shooting

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Has Obama Gone Too Far? Five Key Questions Answered About the Legality of His Immigration Plan.

by RenaGroves Posted on November 21, 2014

Mother Jones

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I’ve been paying only moderate attention to the whole issue of President Obama’s executive order on immigration, and it’s only over the past few days that I’ve started trying to learn more about the legal issues involved. And I confess that I’ve been a little surprised by what I’ve discovered. As near as I can tell, both liberal and conservative legal scholars—as opposed to TV talking heads and other professional rabble-rousers—agree that Obama has the authority to reshape immigration enforcement in nearly any way he wants to. Here are answers to five key questions about the legality of the immigration plan Obama announced tonight:

  1. The linchpin of Obama’s executive action is the president’s inherent authority to engage in prosecutorial discretion, and just about everyone agrees that this authority is nearly unconditional. Speaking to a meeting of the conservative Federalist Society, Christopher Schroeder said: “I think the roots of prosecutorial discretion are extremely deep. The practice is long and robust. The case law is robust.” Erwin Chemerinsky and Samuel Kleiner agree: “It has always been within the president’s discretion to decide whether to have the Department of Justice enforce a particular law. As the Supreme Court declared in United States v. Nixon, ‘the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.'”
  2. OK, but exempting entire categories of people from prosecution? It turns out that current immigration law explicitly recognizes this. Margaret Stock, a Republican immigration lawyer and a Federalist Society member, says: “The Immigration and Nationality Act and other laws are chock-full of huge grants of statutory authority to the president. Congress gave the president all these powers, and now they are upset because he wants to use them. Other presidents have used the same authority in the past without an outcry.”
  3. But are those grants really broad enough? Apparently so. In fact, immigration law provides the president an unusually broad scope for executive action. Eric Posner writes: “The president’s authority over this arena is even greater than his authority over other areas of the law….In 2012, the Supreme Court recognized the vast discretion of the president over immigration policy. In the case Arizona v. United States, the court struck down several Arizona laws that ordered state officials to enforce federal immigration laws, on pain of state penalty….As Adam Cox puts it, in a recent academic article, the court’s reasoning “gives executive branch officials near complete control over the content of immigration law.'”
  4. Still, even if this is true in theory, is it really true in practice? As it turns out, yes, there’s plenty of prior precedent for exactly this kind of thing. As the LA Times reports, “Obama would not be the first president to push through immigration reform by working outside of Congress.” In fact, presidents from FDR through Bill Clinton have issued executive orders that deferred deportation for various categories of undocumented immigrants. And while it’s true that Obama’s action will likely affect more people than any of the previous ones, that’s a political issue, not a legal one. From a strictly legal viewpoint, Obama is doing something that has plenty of past precedent.
  5. Finally, what about work permits? Even if Obama can legally defer prosecution—a right conferred by both constitutional authority and statutory language—does that also give him the right to issue work permits to immigrants affected by his order? Surprisingly, perhaps, that has a long pedigree too—one that goes back not just to DACA (Obama’s 2012 mini-DREAM executive order), but well before that. David Leopold, former president of the American Immigration Lawyers Association, explains: “The federal regulations governing employment under immigration law existed well before DACA. Under those regulations, any undocumented immigrant granted deferred action — under programs that preceded DACA or coincide with it — had already been able to apply for employment authorization….The president’s authority to grant work status long precedes DACA, and while it does apply to DACA and would apply to its expansion, it is not a direct outgrowth or creation of either.”

It’s an open question whether Obama’s actions are politically wise. It might force Republicans into an uncomfortable corner as they compete loudly to denounce Obama’s actions, further damaging their chances of appealing to Hispanics in future elections. Alternatively, it might poison any possibility of working constructively with congressional Republicans over the next couple of years, which might further degrade Democratic approval ratings. There’s also, I think, a legitimate question about whether liberals should be cheering an expansion of presidential power, whether it’s legal or not.

That said, Obama’s actions really do appear to be not just legal, but fairly uncontroversially so among people who know both the law and past precedent. Republicans may not like what Obama is doing, and they certainly have every right to fight it. But they should stop spouting nonsense about lawlessness and tyranny. That’s just playground silliness.

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Has Obama Gone Too Far? Five Key Questions Answered About the Legality of His Immigration Plan.

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Voter ID Laws: Terrible Public Policy, But Probably Pretty Feeble

by FFJLaunaxxkc Posted on November 19, 2014

Mother Jones

Republican-led voter-ID laws may be pernicious, but Nate Cohn says there are three reasons to think their actual electoral impact is overstated:

To begin with, the true number of registered voters without photo identification is usually much lower than the statistics on registered voters without identification suggest. The number of voters without photo identification is calculated by matching voter registration files with state ID databases. But perfect matching is impossible and the effect is to overestimate the number of voters without identification.

….People without ID are less likely to vote than other registered voters. The North Carolina study found that 43 percent of the unmatched voters — registered voters who could not be matched with a driver’s license — participated in 2012, compared with more than 70 percent of matched voters.

….There’s no question that voter ID has a disparate impact on Democratic-leaning groups….But voters without an identification might be breaking something more like 70/30 for Democrats than 95/5. A 70/30 margin is a big deal, and, again, it’s fully consistent with Democratic concerns about voter suppression. But when we’re down to the subset of unmatched voters who don’t have any identification and still vote, a 70/30 margin probably isn’t generating enough votes to decide anything but an extremely close election.

When I looked into this a couple of years ago, I basically came to the same conclusion. Only a few studies were available at the time, but they suggested that the real-world impact of voter ID laws was fairly small. I haven’t seen anything since then to suggest otherwise.

None of this justifies the cynical Republican effort to suppress voting via ID laws. For one thing, they still matter in close elections. For another, the simple fact that they deliberately target minority voters is noxious—and this is very much not ameliorated by the common Republican defense that the real reason they’re targeted isn’t race related. It’s because they vote for Democrats. If anything, that makes it worse. Republicans are knowingly making it harder for blacks and Hispanics to vote because they vote for the wrong people. I’m not sure how much more noxious a voter suppression effort can be.

These laws should be stricken from the books, lock, stock and extremely smoking barrel. They don’t prevent voter fraud and they have no purpose except to suppress the votes of targeted groups. The evidence on this point is now clear enough that the Supreme Court should revisit its 2008 decision in Crawford v. Marion that upheld strict voter ID laws. They have no place in a decent society.

At the same time, if you’re wondering how much actual effect they have, the answer is probably not much. We still don’t have any definitive academic studies on this point, I think, but Cohn makes a pretty good case. It’s possible that Kay Hagen might have lost her Senate race this year thanks to voter ID laws, but she’s probably the only one.

Source – 

Voter ID Laws: Terrible Public Policy, But Probably Pretty Feeble

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Antonin Scalia’s Son Now Works For Snoopy

by FloraStaten Posted on November 19, 2014

Mother Jones

When Democrats in Congress tried to fix the financial system in 2010, one of their main goals was to end the plague of giant financial institutions that had attained too-big-to-fail status—gargantuan banks and non-banks (say, insurance companies) that could one day collapse and, consequently, sink the entire economy unless they received a government bailout. The Dodd-Frank Wall Street reform legislation that Congress passed compelled financial regulators to identify these companies and called for extra rules for these behemoths to minimize the risk of implosion.

So far that process has been humming along relatively smoothly. But it could soon be derailed in court, thanks to Eugene Scalia, the son of Supreme Court Justice Antonin Scalia and a partner at the Washington power-law firm Gibson, Dunn & Crutcher. In recent years, Scalia the Younger, on behalf of the Chamber of Commerce and other clients, has waged a campaign via a series of lawsuits to defang assorted Dodd-Frank rules governing banks and other financial institutions. Scalia’s lawsuits have largely aimed at marginal aspects of financial reform, not the foundational elements of the Wall Street reform law. But Reuters reported earlier this month that insurance giant MetLife—preferred insurer of Snoopy—had hired Scalia, an indication the firm was preparing take the government to court to challenge a designation that MetLife is a too-big-to-fail institution. If such a case does ensue and Scalia is successful, he could make it tough for the government to label any non-bank as too big to fail.

Read more about Eugene Scalia’s campaign to sabotage Wall Street reform.

Dodd-Frank established the Financial Stability Oversight Council (FSOC), a 10-member body of government regulators, including the secretary of the Treasury and the chair of the Federal Reserve. This council is in charge of determining which financial companies qualify as a Systemically Important Financial Institution, or SIFI. Under Dodd-Frank, the process for designating a bank a SIFI is straightforward: any bank with $50 billion in assets is automatically a SIFI. Nineteen US banks now meet this definition.

But deciding which non-banks pose a systemic risk is trickier. To slap the SIFI label on a non-bank, the FSOC has to consider 11 factors, including how much leverage the company carries, whether it is a major player in handing out loans to US businesses, how interconnected it is with institutions already designated as SIFIs, and the level of credit it provides to low-income and minority communities.

Once declared a SIFI, a bank comes under the supervision of the Federal Reserve and is subject to stricter rules, such as higher capital requirements. But for the non-banks deemed SIFI, the Federal Reserve has yet to issue new rules, leaving unclear what extra requirements they will be forced to comply with as too-big-to-fail institutions.

So far, the FSOC has said just three non-bank companies are too big to go under: AIG, Prudential, and GE Capital. In September, the FSOC unanimously proposed listing MetLife—the largest insurer in the country—as a SIFI, a move that the company immediately challenged. In early November, according to Bloomberg, Scalia and MetLife’s CEO met with the FSOC to argue against the designation. The board still must issue a final declaration on MetLife, but given the earlier consensus, it seems likely it will stick to the original decision.

MetLife’s recourse would be to contest the designation in court. It’s not certain that MetLife would sue the FSOC. As The Wall Street Journal reported, “The people familiar with the matter said a major factor in MetLife’s decision about litigation would be the strength of the written rationale provided to the company by the Financial Stability Oversight Council.” But it appears a good bet that Scalia would find room to object. The pioneering tactic he has used to convince judges to reject other financial regulations is to argue that the government didn’t conduct a thorough cost-benefit analysis before issuing a regulatory decision—that is, contending that the feds were lazy with their math and didn’t provide enough justification for the way they devised a rule. And when the FSOC has issued SIFI designations in the past, its rulings have tended to be more thematic and analytical than facts-drenched. The decision on Prudential, for example, runs 12 pages and broadly discusses the insurance company’s role in the economy without presenting many statistics to back up the claim that Prudential poses a wider risk if there’s a run on its assets.

In May, Scalia testified before the House Committee on Financial Services and slammed the FSOC’s decision on Prudential. “The process by which companies are considered for designation is exceptionally opaque,” he griped in his written testimony, describing this particular decision as lacking “substantiation and analytic rigor.”

Scalia has had a good run, winning a series of cases challenging other parts of Dodd-Frank. But several of those victories came at the DC Circuit Court of Appeals, which until recently was dominated by Republican appointees. Now, thanks to the Democrats’ decision to weaken the Senate filibuster, the appeals court has several new Obama appointees, shifting the balance of power to a majority that might be less hostile to the FSOC’s decision-making. So as MetLife ponders whether to mount a legal crusade against the financial regulators, its officials have to consider this: with those new judges, can Scalia continue his streak? And should they bring and a case and lose, what are the odds a higher court featuring another Scalia—who might have to recuse himself—could help them out?

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Antonin Scalia’s Son Now Works For Snoopy

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Supreme Court Takes Up Yet Another Challenge to Obamacare

by WendyHaddad Posted on November 7, 2014

Mother Jones

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It looks like the Halbig challenge to Obamacare is a go:

The justices on Friday say they will decide whether the law authorizes subsidies that help millions of low- and middle-income people afford their health insurance premiums. A federal appeals court upheld Internal Revenue Service regulations that allow health-insurance tax credits under the Affordable Care Act for consumers in all 50 states. Opponents argue that most of the subsidies are illegal.

In case it’s slipped your mind, this is the case that hinges on whether a typo in one sentence of the Affordable Care Act should wipe out health care subsidies in every state that uses the federal exchange. If the challengers win, subsidies will be available only in states that run their own exchanges.

Given the facts of the case, I’d normally say the whole thing is laughable. The intent of the law is, and always has been, crystal clear. But the current Supreme Court really doesn’t seem to care much about laughable. If they want to cripple Obamacare, they’ll do it. The shoddiness of the argument doesn’t much matter to them.

So this is going to be a nail-biter. If it goes the wrong way, 6 million people or more will lose access to affordable health care—and half the country will cheer giddily about it. Because there’s just nothing more satisfying than denying decent health care to millions of your fellow citizens.

UPDATE: Although this challenge is the same as the one in Halbig, the actual case the Supreme Court agreed to hear is King v. Burwell. Sprry for the mistake.

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Supreme Court Takes Up Yet Another Challenge to Obamacare

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Judge Rips Alabama for Hiring a Discredited Abortion Foe

by panisylvia Posted on October 21, 2014

Mother Jones

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Vincent Rue, a marriage therapist best known for his discredited theories about how abortion causes mental illness, has made hundreds of thousands of dollars assembling legal teams to defend extreme anti-abortion bills. But lately, the states that hire him have been getting a raw deal.

On Monday, US District Judge Myron H. Thompson skewered Alabama for involving Rue in the defense of a law that requires abortion providers to obtain admitting privileges with a local hospital. Thompson struck down the law, which had threatened to close three of Alabama’s five abortion clinics. Notably, Thompson disregarded two arguments made by John M. Thorp, an OB-GYN at the University of North Carolina Hospital and one of Rue’s go-to expert witnesses: that complications arise from abortion more often than is reported in official statistics, and that admitting privileges are necessary to good patient care. Both claims have been key for states defending these sorts of abortion restrictions.

This is the second time this year that a federal judge has dismissed evidence brought by Rue’s favored expert witnesses. In September, a Texas judge ruling on an anti-abortion bill that would close all but six of the state’s clinics raked the state’s attorneys across the coals for bringing on Rue—and hiding his involvement.

Rue was thoroughly discredited as an abortion expert long before Alabama hired him. When he testified in two landmark abortion cases in the 1990s, judges disregarded his testimony for being personally biased and lacking expertise. Mainstream medical organizations have rejected Rue’s research on a supposed mental illness caused by abortion, “post-abortive syndrome.”

In Alabama, Rue recruited expert witnesses for the state and in one case wrote the entirety of the report the state’s witnesses submitted to the court. Rue didn’t testify. But the state paid him $82,890 for his work. It paid the two witnesses that Thompson called out in his opinion, Thorp and James C. Anderson, a Virginia emergency room physician, $40,174.75 and $76,279.20, respectively. Thorp, Rue, and Anderson did not reply to requests for comment.

Thorp based his testimony on a study he wrote for a pay-to-publish journal. (Traditional academic journals do not charge authors for printing their work.) He misplaced decimal points in his report to the court compiling abortion complication rates. When challenged about his methodology on cross-examination, Thorp told the court to “knock a point off” his estimate of complication rates.

At trial, Anderson admitted that Rue had written a report to the court that Anderson signed. Anderson also said that Rue provided most of the research for a second report Anderson wrote. Anderson further testified that he didn’t know courts had disregarded Rue’s testimony. Thompson was incredulous.

“You say you don’t know his employment or any organizations that he belongs to,” the judge asked Anderson. “Why do you trust him?”

In his Monday ruling, Thompson tried to guess at the answer: “Either Anderson has extremely impaired judgment; he lied to the court as to his familiarity with Rue; or he is so biased against abortion that he would endorse any opinion that supports increased regulation on abortion providers. Any of these explanations severely undermines Anderson’s credibility as an expert witness.”

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Judge Rips Alabama for Hiring a Discredited Abortion Foe

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Did Crazy Luck Help Cigarette Makers Sidestep These Gruesome Warning Labels?

by CandiceKuefer Posted on September 29, 2014

Mother Jones

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Talk about luck.

Back in 2009, Congress passed landmark legislation directing the US Food and Drug Administration to regulate tobacco products, which according to the Centers for Disease Control kill at least 480,000 Americans each year—more than were killed in battle in all of our foreign wars combined. Among the agency’s early moves was a ban on candy- and fruit-flavored cigarettes, which were assumed to attract children.

Judge Richard J. Leon

Over the past five years, however, cigarette and e-cigarette companies have filed three major lawsuits against the Food and Drug Administration to halt the imposition of rules intended to make their products less appealing to consumers—and less accessible to kids.

The three cases, which involved, among other things, graphic warning labels, FDA oversight of e-cigarettes, and the use of menthol, were all decided in the industry’s favor by Richard J. Leon, a US District Court judge in Washington, DC, whose rulings have demonstrated concern about government overreach and a tone of deep skepticism toward the FDA’s legal positions. “Please! This conclusion defies common sense,” he wrote, dismissing one of the agency’s arguments.

Given how cases are normally assigned, the fact that Leon was assigned to all three is extraordinary—and extraordinarily good luck for the industry, which currently, for example, remains free of federal restrictions on selling candy-flavored e-cigarettes to children.

How extraordinary? Well, the District Court assigns cases randomly among its regular judges, plus several senior judges with reduced caseloads. According to the court, there were 13 regular judges on hand when two of the cases were filed, and 9 regular judges available when the third was filed. The odds of the cases being randomly assigned to any one judge—1 in 13, 1 in 13, and 1 in 9—put the chance of a single judge drawing all three FDA cases at 1 in 1,859. With senior judges in the draw, the odds would be even more remote.

Just an unlikely coincidence, court officials say. Nothing more. It would be “indefensible,” said Greg Hughes, the court’s chief deputy clerk for operations, for anyone to bend the assignment rules. The situation “does stretch the bounds of credulity,” he acknowledged, but the complaints were indeed randomly assigned. “That’s what the system’s telling me, and I have to put faith in the system.”

The court does have a “related case” process: The filing lawyer is supposed to inform the court when the case in question is closely related to another case under the court’s jurisdiction. Also, a judge who is randomly assigned a case may request its transfer to a colleague who has handled a very similar case in the past. But court officials told me that neither of those things happened with the FDA cases, and my review of the docket supports that.

Judge Leon joined the court in 2002 after being nominated by President George W. Bush. He is considered something of a maverick conservative, and has come down hard on federal agencies in other cases. In December 2013, for instance, he ruled that the National Security Agency’s bulk collection of phone records of United States citizens is probably unconstitutional. It’s unclear whether another judge would have ruled differently in the FDA cases—two of which have been held up on appeal. (An appeal of the third case is pending.)

Leon declined to be interviewed for this story, as did officials with the FDA and Justice Department—which represents the agency in court. Tobacco industry lawyers either did not return my calls or declined to be interviewed.

But the tobacco control advocates I reached were somewhat incredulous. It seems “very, very strange that somebody who has demonstrated a sustained hostility to the federal regulation of tobacco products keeps getting assigned to these cases,” said Richard Daynard, a Northeastern University law professor and chairman of the Boston-based Tobacco Products Liability Project. “It certainly leaves one wondering what is going on.”

Matthew L. Myers, president of the Campaign for Tobacco-Free Kids, told me that the impact of these rulings has been “enormous.” Leon “has fundamentally altered the FDA’s authority and ability to carry out its congressional mandate,” he said. “It has had a direct effect on what has happened with e-cigarettes, and the fact that the United States still has among the weakest warning labels in the entire world.”

“But,” Myers added, “there is no evidence of wrongdoing. You can’t point to anything. I wish I could.”

Legal authorities had to agree. “The odds are long,” said Andrew Bradt, an assistant professor and expert on litigation procedure at the UC-Berkeley School of Law, “but I would have no basis for saying there’s any shenanigans going on.”

Alan B. Morrison, a George Washington University law professor with extensive litigation experience in the DC District Court, concurred that the odds were “quite astounding.” But given the outcome of the appeals to date, he doubts anything happened that “is evil or malicious or affecting outcome.”

Leon’s decisions have stymied federal oversight in the following areas:

E-cigarettes: In 2009, the FDA tried to halt a shipment of e-cigarettes into the US on the grounds that the products—which produce nicotine vapor without burning tobacco—were unapproved drug-delivery devices. E-cigarette marketers sued the agency. In January, 2010, Judge Leon issued an injunction saying the FDA lacked authority to regulate e-cigarettes as drug-delivery devices because the marketers weren’t making therapeutic claims. The ruling was affirmed on appeal.

Almost five years later, e-cigarettes (along with similar devices called “vape” pens or hookah pens that can be used to ingest nicotine) are still exempt from FDA oversight. Although the vapors e-cigarettes produce appear to be less harmful than tobacco smoke, nicotine is extremely addictive. Health officials fear kids who get hooked using the devices may well graduate to smoking.

Indeed, according to a recent CDC study, more than a quarter of a million middle and high school students who had never smoked said they had used e-cigarettes in 2013. And because the devices are unregulated, they aren’t bound by federal age limits, bans on kid-friendly flavorings, or advertising restrictions. In April, the FDA finally issued a proposed rule that would give it the authority to regulate e-cigarettes as tobacco products (as opposed to drug-delivery devices), but that rule won’t become final until next year at the earliest.

Graphic Warning Labels: The 2009 antismoking legislation directed the FDA to create bold pictorial warnings for cigarette packs that would replace the small text warnings that have been unchanged since the 1980s. Seventy-four countries and territories around the world require such graphic warnings, according to survey data from the Canadian Cancer Society, but the United States, with the world’s biggest tobacco control program, still doesn’t have them.

In June, 2011, the FDA ordered the use of nine rotating warnings designed to cover 50 percent of cigarette packages. The images included things like diseased lungs and a cadaver on an autopsy table.

Five tobacco companies, including RJ Reynolds and Lorillard—the second and third leading cigarette makers—filed a lawsuit claiming the mandate violated their First Amendment rights. Judge Leon sided with the companies, ruling that the labels were “more about shocking and repelling than warning,” and amounted to an “impermissible expropriation of a company’s advertising space for Government advocacy.” A federal appeals court upheld the decision in August 2012.

The FDA has gone back to the drawing board to develop new warnings that will pass legal muster. But officials aren’t saying when they will be proposed.

Menthol Cigarettes: The 2009 tobacco control act also directed the FDA to create an expert panel—the Tobacco Products Scientific Advisory Committee to study whether menthol cigarettes pose more of a risk to public health than non-menthol brands. In a July 2011 report, the panel concluded that menthol, which anesthetizes the throat against the harshness of the smoke, likely makes it easier for teens and young adults to take up smoking.

Lorillard and RJ Reynolds sued to invalidate the report, complaining that several panel members had conflicts of interest because they had served as consultants to pharmaceutical companies developing smoking cessation products and had served as witnesses in anti-tobacco lawsuits.

This July, Judge Leon ruled that panel members Neal Benowitz and Jack Henningfield, both renowned addiction experts, and Dr. Jonathan Samet, an editor on several Surgeon General reports, had conflicts that “fatally tainted” the panel and the menthol report. He ordered the FDA to reorganize the committee, and forbade it from considering the panel’s findings. The agency has filed a notice of appeal.

A version of this story was published concurrently by FairWarning.org, a nonprofit investigative news organization focused on public health, safety, and environmental issues.

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Did Crazy Luck Help Cigarette Makers Sidestep These Gruesome Warning Labels?

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The Justice Department Claims This Defamation Case Will Reveal State Secrets—But Won’t Say How

by ScarlettHoyt Posted on September 19, 2014

Mother Jones

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In an unprecedented move, Attorney General Eric Holder has intervened in a defamation lawsuit, seeking to have the case thrown out on the grounds that it will reveal state secrets—without publicly explaining how it would do so. On Wednesday, a lawyer for the plaintiff in the case, a Greek business mogul accused of doing business with Iran, fired back at Holder in a letter to the court that essentially says: Prove it.

Dismissal of the lawsuit, which was filed in federal court in 2013, would be highly unusual. Neither party in the suit is connected to the government, and the Justice Department insists on keeping its interest in this case a mystery. In the past when the Justice Department has invoked state secrets, a high-ranking official has offered a public explanation to the court. But Holder asserts that in this case, he cannot discuss the Justice Department’s reasoning, nor the agency or information that the lawsuit might compromise.

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The Justice Department Claims This Defamation Case Will Reveal State Secrets—But Won’t Say How

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