Alito and the Family and Medical Leave Act -- Part 4.

Look at how a commenter who tries to explain law is treated over in the DailyKos comments. This is how Armando speaks to a reader who patiently tries to explain how he's misstated the law:

STFU (none / 0)

You were dead wrong. Yiu said ALito did NOT say that Congress acted unconstitutionally. You were WRONG. Whose clients should be in fear. You were dead wrong jerk. And abused the hell outr of mcjoan when you were wrong asshole.

See, mcjoan said exactly that, that Alito said that Congress invaldfily abrogated SI. And you kust flat out lied about what the diary said and were abusive and were wrong.

Stupid ass jerk.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:25:18 AM PDT
[ Parent ]

Correct the piles of shit you laid all over (none / 0)

Alito ruled that Congress acted unconstitutiopnally wen it expressly abrogated the Sovereign Immunity of the States.

Go learn some fucking law.

The SCOTUS is Extraordinary.

by Armando on Thu Nov 03, 2005 at 08:21:00 PM PDT
[ Parent ]

Just to be clear: Armando is one of the main writers over on DailyKos, not just some commenter. And DailyKos is the most widely read blog in the world, with traffic nearly as high as the NYT online.

Liberals, does it bother you that this is what your loudest voice on the web sounds like?

[My earlier Alito and the FMLA posts: 1, 2, 3.]

UPDATE: Here's the McJoan post that goes with those comments:

In 2000, Judge Samuel Alito authored an opinion in which he concluded that Congress did not have the power to require state employers to comply with the Family Medical Leave Act.

False. The commerce power supports the FMLA even as applied to the states, and nothing in Alito's opinion is to the contrary.

This ruling was overturned by the Supreme Court in 2003, with a 6-3 margin. Voting in dissent? That's right, everyone's favorite activist justice, Antonin Scalia.

Don't bother mentioning that the main dissent was written by the moderate Anthony Kennedy, who was distressed at the misapplication of a whole line of cases -- cases Alito, as a lower court judge, had to follow. Just throw out the name of Antonin Scalia! It's so inherently alarming.

In his ruling in Chittister v. Department of Community and Economic Development, Alito argued that the FMLA was an instance of unconstitutional congressional overreach. He also argued that the FMLA was unconstitutional because "there was no evidence for the notion that women are disadvantaged in the workplace when they are not allowed to take family leave. Furthermore, he argued, the requirement that everyone be guaranteed 12 weeks of unpaid family leave was a disproportionately strong remedy":

Notably absent [from the FMLA] is any finding concerning the existence, much less the prevalence, in public employment of personal sick leave practices that amounted to intentional gender discrimination in violation of the Equal Protection Clause.

...Moreover, even if there were relevant findings or evidence, the FMLA provisions at issue here would not be congruent or proportional.

McJoan is quite wrong to say Alito found the FMLA unconstitutional. The quoted material is the reason why, following a line of recent cases, the FMLA didn't fit the Fourteenth Amendment power, which is needed to abrogate sovereign immunity (and allow an individual employee to sue the state for retrospective relief). The FMLA remains supported by the commerce power and the state is still bound by it in this analysis.

Alito's idea that women are not disadvantaged when they can not take maternity leave seems absurd, both intellectually and factually. Even William Rehnquist, who wrote the Supreme Court's 6-3 opinion in 2003 overturning Alito's ruling, found Alito's argument deeply flawed.

The question under the Fourteenth Amendment power wasn't whether women are disadvantaged, but whether the states were violating Fourteenth Amendment law: What violation of constitutional rights was the FMLA remedying? That was the question Alito faced and answered as the law required. To characterize him as not caring about women's interests is either a mistake or deliberate distortion. And by the way, the states were giving women maternity leaves. To find an equal protection violation, you need to point to the lack of paternity leaves and attribute it to stereotyping. And I'm not saying the FMLA isn't a good law and a nice benefit. The problem was that it wasn't a correction of the violation of constitutional rights. Rehnquist finessed his way around that problem, as Kennedy detailed in dissent, and so the ability of state employees to sue for back pay was preserved. But Alito just did what the case law required at the time.

Luckily for me, Rehnquist led the Supreme Court in overturning Alito's flawed decision. Let me reiterate that. Alito's ruling was too conservative for Rehnquist.

But it was quite proper according to Kennedy. Could it perhaps be that sometimes, some judges analyze legal issues?

Alito's and Scalia's hostility toward the FMLA could very well stem from the hostility of business interests, like the U.S. Chamber of Commerce.

But the issue in Hibbs and Chittister only had to do with the way the FMLA applied to the states, so the interests of private business were not at stake in the slightest.

Again, the commerce power supports the FMLA, and neither Hibbs nor Chittister had anything to do with that. And why not include Kennedy in your group of hostile justices? Doesn't fit the attempt to paint the justices as a bunch of ideologues.

The United States is the only industrialized nation in the world that doesn't provide paid family leave. Should another FMLA case come before a Supreme Court with both Alito and Scalia, we might even lose the unpaid leave we have now. That would leave millions of families, like my own, struggling to care for ourselves, our loved ones. In terms of family values, I don't know what could be more critical.

Yes, yes, let's talk about mommies and daddies and babies and families, all the emotional things only good liberals care about. Who wants to stop and talk about a difficult legal issue? But the fact is that nothing about what Alito said in Chittister and Kennedy and Scalia said in Hibbs threatens to take away the leave rights people now have. The commerce power supports the FMLA. When will the people who are demagoging this issue mention that the commerce power supports the FMLA? When they don't, you should know that they are not playing it straight (or they actually don't understand the law).

ANOTHER UPDATE: If you keep reading the comments over at Kos, you'll see this:

Typical Armando (none / 0)

So far, Armando's legal "analysis" is nothing more than name calling. The fact is that every other circuit that addressed the issue of sovereign immunity and the FMLA ruled the same as Alito, with many Democratic judges participating, except for the 9th Circuit. Most S. Ct. observers were surprised when Rehnquuist & O'Connor didn't follow their earlier "federalism" precedents when the FMLA issue came up in Hibbs. To argue now that it was somehow clear that states couldn't be sued by their employess under the ADEA & ADA, but could be under the FMLA, is absurd.

What kind of lawyer engages in name-calling rather than citing cases?

by Realist2004 on Thu Nov 03, 2005 at 10:26:48 PM PDT

[ Parent ]

Excuse me (none / 0)

Typical you - the asshole you defend engaged in name calling and was flat out werong about what the diary said and was abusive to mcoan for no good fucking reason.

Typical of you to IGNORE all that.

Typical of you and it is why you are a waste of time.

The SCOTUS is Extraordinary.

by Armando on Fri Nov 04, 2005 at 05:23:07 AM PDT

[ Parent ]

Later, Armando has this outburst, in response to commenters who keep trying to explain the law:

How in BLAZES do you enforce a law against the State then Genius? Soveriegn Immmunity. Look it the fuck up asshole.

Well, Armando, it's called Ex Parte Young. Look it up!

IN THE COMMENTS: Armando himself stops by. (Where's my link from Kos? I link to the people I argue with.) He tries to explain himself, but doesn't understand the law in this area. He does manage to avoid saying "f*ck" over here.

YET ANOTHER UPDATE: Patterico points out an extremely important point about Alito's Chittister case: it was not about leave to take care of a family member, but about sick leave. What is the sex discrimination problem to be remedied with respect to self-care? Hibbs was about taking care of family members, so there was a way to connect the FMLA to the stereotyping of women as the main caregivers. But when it's a matter of taking care of yourself, where's the rights violation to enforce? Patterico links to Bench Memos and this Tenth Circuit case. The bottom line is that Alito was even more scrupulously correct than I've been portraying him. And it's not even about families. Even single folks with no responsibilities for others get this benefit. It may be nice, but it's not about remedying violations of constitutional rights.