2011 in review: The top 20 legal stories, part 3

December 21, 2011

Top 20 of 2011(Editor’s note: Throughout December, the last month of the year, we’ll be looking at the top 20 legal events of 2011, as chosen by the Westlaw Insider editorial staff.)

Click here for part 1.

Click here for part 2.

The AT&T/T-Mobile Merger

On March 20, 2011, AT&T announced plans to purchase mobile competitor T-Mobile USA from its parent Deutsche Telekom for $39 billion to the cheers of some and the dismay of others.

With congressional hearings, FCC reports, and plenty of commentary, there certainly wasn’t any shortage of coverage on the issue.

On August 31, 2011, the U.S. Department of Justice filed an anti-trust action against AT&T and T-Mobile seeking to halt the merger.

AT & T and T-Mobile logos

Though initially confident of the merger’s successful completion, chances since the filing of the lawsuit have looked increasingly bleak, and AT&T announced this week that the deal is now dead.

The significance of this defeat extends beyond the wireless industry, however.

AT&T was confident of the deal’s success (and was reasonable in being so) because mergers and acquisitions historically have failed because of party finances, not government regulators.

The FCC’s and DOJ’s opposition that led to the merger’s eventual decline is something that really hasn’t been seen in decades, and surely wasn’t planned for by AT&T or T-Mobile.

And that is something about this event that may very well have a lasting impact beyond 2011.

National Defense Authorization Act (NDAA) for Fiscal Year 2012

The NDAA’s aren’t in themselves actually anything special.  Congress has enacted one each year for the past 48 years to specify the Pentagon’s budget.

This year, though, Congress slipped something in that has gotten quite a few people worried.

That something is Section 1031, which explicitly gives the Executive the power to indefinitely detain without trial any individuals – including American citizens – accused of acts of terrorism or supporting terrorism.

There’s also a neat little catch-all provision that also includes “any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

The most incredible thing about this provision isn’t that Congress actually passed it; it’s that they actually thought that they could get away with it.

Let’s assume for a second that our elected national officials aren’t aware of the due process protections afforded by the Fifth Amendment, nor of Article I, Section 9’s prohibition against the suspension of habeas corpus.

Shouldn’t they at least be aware of a recent Supreme Court ruling on the issue: 2004’s Hamdi v. Rumsfeld?

Yes, Hamdi was a messy plurality decision, but eight of the nine Justices agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable via judicial review.

Some have questioned whether President Obama will even sign the Act, but the White House has already signaled that it will not veto.

The real question, though, is whether Section 1031 will be able to survive the slightest amount of judicial scrutiny.

D.C. Court of Appeals Upholds Obama Healthcare Law

Scalia with silberman for prez

US Supreme Court Justice Antonin Scalia wears a pin that says "Silberman for President" at a Medal of Freedom ceremony at the White House in Washington, June 19, 2008.

The fact alone that Seven-Sky v. Holder upheld the constitutionality of the ACA isn’t significant (two other federal appellate courts have ruled similarly).

What’s significant is that the opinion was authored by Laurence Silberman, a noted conservative jurist.

And he authored it like Scalia would: it was forceful and with particular weight on textualist arguments.

Since this case isn’t the healthcare law one going to the Supreme Court, why does it matter?

Because Silberman is quite influential among conservatives in Washington and has been for a long time.

This ruling very well may have swayed Supreme Court Justices Roberts, Alito, and/or Kennedy towards ruling for the individual mandate’s constitutionality, likely resulting in a Court majority upholding the law in its entirety (you can check out this post for my FantasySCOTUS predictions on the issue).

This result will have a far longer lasting impact than Seven-Sky by itself could ever have had.

Obama stops defending DOMA

President ObamaOn February 23, 2011, based on a recommendation from Attorney General Eric Holder, President Obama ordered the Justice Department to stop defending the constitutionality of the Defense of Marriage Act in federal courts.

(For a lengthier discussion on the full ramifications of this decision, you can read this post.)

Aside from the implications for DOMA’s chances in court and the possibilities for same-sex rights an overturned DOMA brings, there’s an even bigger issue at play here.

Although it isn’t the first time a President has done so, DOMA certainly is one of the most high-profile laws that the Executive has declined to defend, and it comes at a time when the issue may be the most heated.

Thus, Obama may have given future Republican administrations an effective tactic in defeating laws unpopular in conservative circles.

Of course, whether that tactic is utilized won’t be discovered in 2012 (but it may be in 2013).

Wisconsin Collective Bargaining Rights Dispute

This issue and the accompanying protests dominated headlines early this year.

In the end, though, Governor Walker succeeded in passing his anti-collective bargaining reforms.

WisconsinThat wasn’t the noteworthy aspect of the debacle, though.

Walker’s crusade against collective bargaining was only one of many across the country in other states.

These movements were primarily driven by Tea Party-backed politicians who were voted into office amid the Party’s surge during the 2010 elections (the state immigration laws mentioned last week and the voter ID laws mentioned two weeks ago are also the product of this).

Whether this trend continues into 2012 remains to be seen, but it looks like the backlash will certainly be felt next year, since Walker may likely face a recall vote next year (if the vote actually happens, it will be the third gubernatorial recall vote in U.S. history).

Either way, the Wisconsin law has been one of the larger milestones of 2011.

Click here for part 4.

What do you think are major legal events of 2011?  How would your list look? Comment below to let us know!