The decision could embolden, and in some cases may have already emboldened, states to set up more roadblocks to public information, watchdogs say.

Muckrock, an online tool that allows users to file public records requests at the state and federal level, called for volunteers Monday to help it cull information in states with laws similar to Virginia’s.

“Every time there’s a new exemption, states find ways to use and abuse it,” Muckrock cofounder Michael Morisy said in an interview.

“To decrease the amount of access to public records has a very real impact on the public, researchers, and journalists. This one in particular is going to prove troublesome because it gives state and local agencies the ability to add serious hurdles to public records requests, even to citizens in those states.”

Morisy said his organization has heard from petitioners who were asked to mail photocopies of their driver licenses, or even appear in person, to obtain public records.

“One of the central tenets of public records law is it don’t matter who you are or what your intention is,” Morisy said. “But when you have state agencies saying, ‘Who are you? Show me your license,’ it can really have a chilling effect.”

Legal experts said the Court’s ruling did not depart from earlier jurisprudence on the issue.

“This decision is not surprising at all,” said Daniel Metcalfe, a law professor at the Washington College of Law at American University and head of the Collaboration on Government Secrecy. “What has to be remembered is that access to government information is a purely statutory right, not one of constitutional dimension, so legislatures can grant, withhold, or limit it with hardly any legal restraint.”

The appellants had argued that Virginia’s public records law violated constitutional protections under the Privileges and Immunities Clause of the 14th Amendment.

However, the Supreme Court has traditionally been wary of expanding such constitutional protections, and Monday’s decision was no different.

Virginia’s law “provides a service that is related to state citizenship,” Justice Samuel Alito wrote for the Court.

“The Constitution does not guarantee the existence of FOIA laws,” Alito wrote. “Moreover, no such right was recognized at common law or in the early Republic. Nor is such a sweeping right ‘basic to the maintenance or well-being of the Union.’”

“Requiring noncitizens to conduct a few minutes of Internet research in lieu of using a relatively cumbersome state FOIA process cannot be said to impose any significant burden” on those outside Virginia, Alito continued.

Kyu Youm, a First Amendment scholar and Jonathan Marshall First Amendment chair at the University of Oregon School of Journalism, said the decision reflected the court’s tendency towards narrow decisions.

“The overlying interest of this kind of freedom of information law is to make sure government functions are understood and scrutinized by the general public,” Youm said. “The court said this law is not contrary to that, and more importantly this kind of law has more or less state-focused objectives.”

Youm also said he did not believe the impacts would be as far-reaching as some fear.

“The indirect impact might not be as substantial as some people might assume,” Youm said. “If you have journalist friends in Virginia, they might work with you on state records projects.”

The NLRB ordered HealthBridge Systems to rehire hundreds of union members in November who had been on strike since July despite a criminal investigation into allegations that some strikers sabotaged the identification documents and medical records of elderly residents, including those suffering from dementia and Alzheimer’s.

HealthBridge was seeking an emergency stay of the NLRB order, which would have prevented the union members from returning to work until the case is appealed. The court’s rejection was the second and final decision in the appeal after Justice Ruth Bader Ginsburg dismissed it on Monday. Justice Antonin Scalia referred the case to the court on Wednesday. Justice Samuel Alito did not participate in the hearing because his wife Martha Ann represented HealthBridge.

“Throughout this process, our guiding principle has been to provide the highest standard of care and safety to our patients,” the company said in a statement. “The court order makes it all the more urgent for the office of the Connecticut chief state’s attorney to complete its investigation of the union workers who committed acts of sabotage against patients when the workers went on strike in July 2012.”

The case could have had major implications for the NLRB, an independent board that settles labor disputes. Obama used his recess authority to make three appointments while the Senate was in pro forma session. A three-judge panel of the D.C. Circuit Court of Appeals declared those appointments unconstitutional in January in Noel Canning v. NLRB.

HealthBridge drew significant portions of its appeal from the D.C. Circuit’s ruling and pointed to the fact that legal experts say Noel Canning will eventually appear before the high court.

“The validity of the president’s recess appointments to the board is a question that will inevitably and quickly find itself before this court, whether in this case, Noel Canning v. NLRB, or another,” the appeal said. “It would be highly anomalous to force HealthBridge to comply with the district court’s order without even having the chance to present its constitutional challenge to the court of appeals or this court.”

HealthBridge is not the only medical center to challenge the legitimacy of the NLRB board. California’s Prime Healthcare Systems informed its union Jan. 30 that it would not comply with an NLRB order that companies must collect dues money for labor groups.

“The D.C. circuit’s ruling from last Friday held all the board’s cases decided by the recess appointments are void,” Prime Healthcare’s assistant general counsel, Mary Schottmiller, told Reuters. “As such, it would violate the law if we followed the Board’s rulings … regarding union dues and witness statements.”

HealthBridge contended it should not be singled out for compliance when so many others are ignoring NLRB rulings while waiting for the courts to act.

“While employers across the country are openly defying final Board adjudications of unfair labor practices, secure in the knowledge that they may challenge those orders in a court that is sure to invalidate them, the coercive power of an Article III court is being used to effectively foreclose HealthBridge’s efforts to pursue the same constitutional challenge even though no one has ever even made a final determination that HealthBridge engaged in any unlawful conduct,” the company’s appeal said (emphasis in the original).

The company now says it will respect the board’s decision.

“While we are disappointed in the decision, HealthBridge managed health care centers intend to comply with the district court’s order,” it said in a statement.

The court said in Noel Canning that presidents can only use recess authority to fill vacancies when the Senate is out of session. The appeals court reasoning follows the strict letter of the Constitution. However, it stands in contrast to how presidents have exercised the authority in the past.

Legal insiders maintain that the Canning decision will reach the high court even if HealthBridge’s challenge was dismissed.

“This is the first time in 200 plus years that the courts have reined in the executive on the recess appointment clause. … It’s a big victory for checks and balances,” said Glenn Taubman, counsel for the National Right to Work Legal Defense Foundation, which filed amicus briefs on behalf of Noel Canning. “Hopefully, the Supreme Court will follow the original intent of Constitution” when it gets there.

Board chairman Mark Gaston Pearce—the only current boardmember to undergo Senate confirmation—said the NLRB would defy the D.C. Circuit’s decision until a higher court weighed in on the case.

“The board respectfully disagrees with [the court’s] decision and believes that the president’s position in the matter will ultimately be upheld,” Pearce said in a statement issued after the ruling. “In the meantime, the board has important work to do … we will continue to perform our statutory duties and issue decisions.”

Pearce has issued numerous judgments in the wake of the ruling with the help of recess appointees Richard Griffin and Sharon Block.

Senate Republicans are looking to curtail the NLRB’s refusal to take action to enforce the D.C. circuit judgment, including legislation to halt board judgments until the issue is resolved.

“Any decisions or regulations made by the people who have no right to be there are invalid,” Sen. Mike Johanns (R., Neb.) said in a statement announcing the Restoring the Constitutional Balance of Power Act of 2013. “This legislation forces them to stop functioning as if they legitimately hold office and recognize the reality that the president overstepped his constitutional authority.”

The Workforce Fairness Institute (WFI), a nonprofit labor watchdog, raised the prospect of recusal, citing then-solicitor general Kagan’s defense of President Obama’s recess appointments in a previous case regarding the composition of the National Labor Relations Board.

The Supreme Court invalidated more than 600 NLRB decisions in the June 2010 case New Process Steel v. NLRB because the board had been issuing decisions with only two members. Kagan defended Obama’s approach to board composition and recess appointments in several briefs, writing in April 2010 that the court “would significantly burden the rights protected” by the National Labor Relations Act if it decided against the administration.

The D.C. Circuit Court of Appeals in January ruled in Noel Canning v. NLRB that Obama violated the Constitution when he appointed Richard Griffin and Sharon Block to the board without Senate confirmation while the upper legislative chamber was in pro forma session. Legal experts predict the case will end up in the Supreme Court.

The WFI, which filed amicus briefs in the case, pointed out that Kagan pledged to recuse herself from any case “in which I have signed any kind of brief” during her 2010 Senate confirmation hearings. The associate justice has recused herself on previous cases, including the 2011 challenge to Arizona’s strict immigration laws, because of her work as solicitor general.

Leslie W. Abramson, a legal ethics professor at the University of Louisville, said the WFI’s call falls short of existing legal precedent for recusal, pointing to the late-Chief Justice William Rehnquist’s refusal to step down from ruling on the constitutionality of a law he had praised in a Senate committee before joining the court.

“As Rehnquist wrote, nobody comes to the court tabula rasa,” Abramson said. “Something a sitting judge has done in a prior life being used to recuse the justice in pending case before the court is a high threshold [to clear].”

Glenn Taubman, an attorney with the National Right to Work Legal Foundation, which also filed an amicus brief in Noel Canning, said Kagan should examine carefully her previous recess appointment work in making her decision.

“It certainly sounds reasonable that she would have to consider recusal, given the active role she took on recess appointments in New Process Steel and her opinion on what constitutes a proper recess appointment,” he said.

Update 10:15 a.m. Wednesday: The story has been updated to reflect that the Workforce Fairness Institute–and not the Chamber of Commerce, which operates the Workforce Fairness Initiative—called for Kagan’s recusal. 

He has been less forthcoming about the fact that he is making a tidy living “consulting” the largest pro-Obama Super PAC, Priorities USA Action, as well as the 501(c)(4) nonprofit, Priorities USA.

Open Secrets reports:

FEC filings show that Begala received well over $400,000 from Priorities USA Action, the super PAC, in return for his consulting services between April 2011 and November 2012.

But the recently filed Form 990 of Priorities USA, the nonprofit, shows that it, too, has been paying Begala handsomely. In the first eight months of the 501(c)(4)’s existence, Begala received more than $184,000 for “communications consulting,” making him Priorities’ top independent contractor.

The 501(c)(4) Priorities USA recently filed its first 990 form, which showed that it had received $2.3 million in donations from five donors during the first eight months of its existence. Given the nature of the disclosure forms, it is difficult to tell where this “dark money”—a term frequently used by liberals to describe secret donations to groups they do not care for—comes from:

One donor alone gave more than 80 percent of Priorities’ total revenue in 2011, or $1.9 million of about $2.3 million. The next largest contributions were much lower, $250,000 and $50,000.

Whether the donors were corporations, individuals, unions or other nonprofits that also don’t have to disclose their donors is impossible to know from the form.

The court’s impending decision in Fisher, in which a white woman sued the University of Texas for using race as a factor in admissions, follows several state referenda rejecting racial preferences in higher education and the workforce.

Oklahoma voters banned such practices on Nov. 6 by a vote of 59 percent to 41 percent. Bans also have been passed over the years with similar majorities in states, including 60-40 in Arizona, 59-41 in Washington, 58-42 in Michigan and Nebraska, and 55-45 in California.

Connerly, founder and president of the American Civil Rights Institute, spearheaded the movement to ban affirmative action. He explained his opposition to racial preferences in an interview with the Free Beacon and suggested President Barack Obama’s reelection means it is time to scrap such programs once and for all.

Connerly saw an “enormous difference” between the standards for black, Latino, and Native Americans and those for Asians and whites while serving as a regent for the University of California for 12 years. A ‘C’ student would have better chances than a ‘B’ student, depending on his race.

The Civil Rights Act “guarantees to all Americans equal treatment under the law, not preferential treatment,” Connerly said. “There’s no question that affirmative action represents preferential treatment.”

Connerly said that preference has outlived its purpose. “The whole premise of affirmative action,” he said, “is that we live in a largely racist society. … That notion is profoundly rejected when the American people elected a brown-skinned guy.”

“That action—and that action alone—ought to dispel the accusation of institutional racism,” Connerly said.

Connerly is not a supporter of the president.

“He has polarized us into the haves and the have-nots,” Connerly explained, and “he has demeaned a lot of people in the process.”

He also defended Sens. John McCain (R, Ariz.), Lindsey Graham (R, S.C.), and Kelly Ayotte (R, N.H.) from accusations of racism for criticizing United Nations Ambassador Susan Rice. “The argument that Ambassador Rice is getting a raw deal because of her mixed ancestry is ridiculous,” he said.

“She made statements that, at the time, were problematic and later proven false,” he said. The fact that those statements were made weeks before a critical election made it “perfectly justifiable to ask if she made them in order to support the president.”

“Anyone following the careers of John McCain, Lindsey Graham, and Kelly Ayotte knows that these people are not racist,” he added. “There’s nothing to support that.”

Additionally, he said, affirmative action has hurt the black population of the United States. “I think it’s prolonged this legacy that black people are inferior—that we are incapable of carrying our own weight,” Connerly said.

“Race preferences, while they might have been justified at some point in time, have outlived their usefulness and they’re beginning to reverse their effect,” he said. “We’ve got to get rid of race preferences.”

Connerly expects the Supreme Court to rule against racial preferences.

“I don’t believe they would have heard the Fisher case if they were not prepared to act in it,” he said. He expects them “to strike the allowable use of race if not to eliminate it altogether.”

Politico reports:

The Supreme Court responded to a request from Liberty University, one of the groups that sued over the health care law’s individual mandate in 2010. When the court ruled in June that the mandate was constitutional, it dismissed Liberty’s entire lawsuit. …

Liberty University argues that the law’s employer coverage provisions — which will require businesses with more than 50 full-time workers to provide health insurance for their workers or face fines — are unconstitutional because Congress overstepped its power by setting those rules.

It also says the individual and employer mandates violate the Constitution’s right to a free exercise of religion. The employer mandate is unconstitutional because of the contraception coverage requirement, Liberty argues, claiming that the individual mandate would require individuals to pay for coverage of abortions.

The Fourth Circuit is traditionally liberal and Democrats appointed all three judges, but Politico notes Liberty still has hope.

If the 4th Circuit does rule against Liberty, it would give the university an opportunity to take its arguments to the Supreme Court — and try to put the law through yet another legal test.

If the justices sided with Liberty University, the health reform law could be severely damaged.

Arguments in the Fourth Circuit could be heard as soon as next spring.

Mikal Watts, a trial lawyer from San Antonio, has made “megamillions suing the likes of Ford Motor Co., various tire companies, and Merck & Co. pharmaceuticals,” the Houston Chronicle wrote. The Texas Blue, a liberal website, puts Watts’s settlements at “over $2 billion.”

“I’ve been a Democrat all my life. I’m as involved as I can be,” Watts told the Washington Free Beacon.

His involvement includes donating the maximum allowable amounts to Democratic campaigns. Watts has donated $5,000 directly to the president’s campaign, $30,800 to the Obama Victory Fund, and a further $30,800 to the Democratic National Committee in this election cycle, records show.

He also sits on Obama’s national finance committee, a position he also held in 2008, he said. Watts hosted a fundraiser for the president earlier this year at his home in San Antonio, according to the Dallas Morning News. Tickets to the event cost $35,800.

Watts noted that he also has donated to Republicans, but said his contributions to the GOP constitute a “very, very small percentage” of his total donations.

“My grandmother was a labor union activist,” he said. Watts described himself as being “born and raised on grassroots politics.”

Watts has also donated $290,000 to The American Worker Super PAC.

David Prichard, who represented Ford against a suit brought by Watts, said about Watts’s trial practices, “I have seen some tactics that, let’s just say, I would not employ.”

Two scandals have haunted Watts’s law career.

Watts wrote a letter to the opposing side in a suit in which he detailed his political donations to justices sitting on the appellate court in Corpus Christi. The letter raised questions over whether he was using his political contributions and influence as leverage.

The Houston Chronicle wrote of the scandal:

Mikal Watts of San Antonio once tried to pressure a legal opponent into a $60 million personal injury lawsuit settlement by claiming he would have an advantage on appeal because of his firm’s ‘heavy’ campaign financial support to an appellate court’s justices, ‘all of whom are good Democrats.’

The Chronicle noted that, while there was no evidence that Watts had any undue influence, the 2001 letter was “intended to make an out-of-state corporation think the donations could sway the court.”

Watts told the Free Beacon that corporations’ defense lawyers often say lower court decisions do not matter because the Republican-dominated superior court will overturn any decision against corporations.

“That letter was a part of a statistical discussion of the likelihood of reversal,” he said, before adding, “I would have been happy to try the case.”

Watts said that his job is to “present the risk assessment.”

Additionally, Watts failed to disclose for five months that his “client, a quadriplegic after an accident, died during settlement talks” with Ford, reported the Caller-Times.

A federal judge censured Watts for the 2005 incident, but allowed Watts to stay on the case over the objections of Ford.

“It was a mistake,” Watts said about the incident.

The lawyer working on the case had a serious medical issue that put him off of the case for several months, he said. “It has not happened again. It will not happen again.”

Watts said that, while “one of my lawyers made a mistake,” ultimately “I’m responsible.”

Watts launched a campaign for the Democratic Senate nomination in Texas in 2007, giving millions of dollars to his campaign. But he pulled out of the race in October of that year, saying he was not willing to sacrifice time with his family to campaign.

When asked about issues of special interest, Watts said, “I’m a fan of universal health care… that’s a really big issue.”

Watts praised former Speaker of the House Nancy Pelosi, Senate Majority Leader Harry Reid, and the president for passing healthcare reform in 2009.

“Talk is cheap,” Watts said. President Obama “got it done.”

Watts said of the healthcare law, “I think it’s a great first start. I think like, any transformative piece of legislation, it will need to be refined along the edges, but for me, it is an absolute, unmitigated success.”

The Supreme Court narrowly upheld Obamacare by characterizing the individual mandate as a tax over the objections of the administration, and Republican challenger Mitt Romney has pledged to repeal and replace Obamacare if elected president.

There are also 37 pending lawsuits against the contraception mandate contained within Obamacare, arguing that it undermines religious freedom.

Watts is pro-life, according to the Houston Chronicle.

JUSTICE ANTONIN SCALIA: Look, some people in recent months have criticized the court as being a politicized court because all the Republican appointees vote one way and all the Democratic appointees vote the other way. That didn’t use to be the case when John Paul Stevens and David Souter—both Republican appointees—were on the court. They usually voted with the so-called liberal wing of the court. So you couldn’t divide it up politically as neatly as you could now, but now you probably can. But it really enrages me to hear people refer to it as a politicized court. Neither I, nor any one of my colleagues, votes a certain way because he or she likes this president or is a member of the party that that president belongs to. I couldn’t care less who the president is. They vote that way because that’s who they are. They were selected because of who they are.

So why should it be surprising, that when you have a Democratic Party that has been trying for years to appoint people who approve of Roe v. Wade—which means people who are not originalists, who do not stick to the text, who believe in substantive due process or whatever—why should it be surprising that when the Democrats have been doing that for 30 years at least, and the Republicans have been doing the opposite for 30 years, swearing that they’re going to appoint people who are not judicial activists, hew to the text, why should it be surprising? That you end up with a court where the Democratic appointees are quite different from the Republican appointees, I mean, you know, maybe the legislature and the president are not as stupid as you think.

But they assuredly pick those people because of who they are, and when they get to the court they remain who they were.

“This is the first indirect tax on inactivity in American history,” Camp said. The Supreme Court’s ruling defends the new idea “that absence of action is taxable and that the government can compel individuals to act.”

Three legal experts agreed with Camp.

Steven G. Bradbury, a partner with international law firm Dechert LLP, testified that the Court’s ruling would likely lead more Americans to accept a tax instead of purchasing insurance.

“The Congressional Budget Office [CBO] projected that approximately 3.9 million Americans would opt to pay the penalty rather than comply with the mandate,” Bradbury said, a projection that relied “on the assumption that most Americans would naturally feel a strong moral imperative to comply with the law.”

Since the penalty has been ruled a tax, however, more Americans “will choose to pay the tax rather than purchase insurance.” If fewer people buy insurance, he continued, “we can expect Congress to ratchet up the tax.”

Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, agreed.

“The majority’s opinion on the taxing power creates a previously unheard-of form of tax that is triggered by inactivity,” she said. In this way, the Supreme Court ruling “triggers the most damaging consequence…a massive expansion of the federal tax power.”

With this power, Severino argued, Congress could tax citizens for not buying products completely unrelated to healthcare, like guns or solar panels.

Lee A. Casey, a partner with the law firm Baker Hostetler, also called this taxation of inactivity “a breathtaking new power for Congress.” The national legislature can now “tax the mere failure to take a course of action,” he explained. “The court continues to acknowledge that there are limits to the taxing power, at least in theory. …The real world viability of these limitations remains very much in doubt.”

Walter Dellinger, a partner at O’Melveny & Myers LLP, disagreed. When Rep. Sam Johnson (R., Tex.) asked him if America ever had a tax levied “for failure to engage in an activity,” Dellinger said, “Yes we have, in the form of higher tax bills.”

When asked what sort of tax the mandate penalty would be, Dellinger said, “It is, on the face of it, an amendment to the internal revenue code.” He compared it to taxes on education, saying, “it operates no differently than the tax incentives in the law.”

Bradbury, Severino, and Casey agreed that it was a direct tax, but Dellinger argued that it was not a direct tax, because it would not apply to every citizen. He compared the question to “asking whether a member [of Congress] who is fishing is a member or a fisherman.”

Representative Dave Reichert (R., Wash.) responded to Dellinger’s comment. The American people don’t care whether lawmakers call it a tax or a mandate, he said, “all they know is the federal government has its hand in their pocket.”

He listed other tax increases in the Affordable Care Act, including a Medicare 3.8% tax, a 2.3% tax on medical devices, and a 40% tax on “Cadillac” healthcare plans.

Severino said, “nomenclature is important,” referencing free speech in First Amendment court decisions.

Douglas Johnson, legislative director of the National Right to Life Committee, told the Free Beacon recently that “there are a number of different components in Obamacare that would expand abortion” as well as several provisions to fund abortion.

Johnson explained that abortion funding “is always included unless it’s explicitly excluded.”

He provided Medicaid as an example: “Medicaid law doesn’t say anything about abortion, so Medicaid began to pay for abortion on demand.” According to federal law, “abortions are medical services,” he said.

The Hyde Amendment forbids federal funding of abortion, but does not cover the new provisions in the Affordable Care Act.

“Direct appropriations,” Johnson explained, fall outside the “regular funding pipeline” of the Department of Health and Human Services (HHS), which the Hyde Amendment covers.

In sworn testimony of October 2010, Johnson recorded the failure of two amendments—Stupak-Pitts and Nelson-Hatch—to the House and Senate versions of the Affordable Care Act.

Each would have ensured that the law could neither directly fund abortion nor subsidize insurance plans including it.

President Barack Obama and then-House Speaker Nancy Pelosi (D., Calif.,) opposed these amendments, and Senate Majority Leader Harry Reid (D., Nev.) wrote a new version of the bill in order to avoid the Stupak-Pitts Amendment.

The Nelson-Hatch Amendment failed in the Senate.

Since these amendments failed, the law became “riddled with provisions that predictably will result in federal subsidies for private insurance plans that cover abortion … direct federal funding of abortion through Community Health Centers, and pro-abortion federal administrative mandates,” said Johnson.

He cited four examples.

The Pre-existing Condition Insurance Plan enables the HHS to authorize funding for abortion, Johnson said. Federal subsidies also support private health plans that cover abortion, while the law sends $7 billion into Community Health Centers, which “are not touched by any restriction on their use for abortion in the bill itself or in existing law.”

The law also establishes “multi-state” plans to be administered by the Office of Personnel Management, which may cover abortion.

Johnson cited “federal subsidies for private health plans” also covering abortion. The “premium subsidy program,” connected with state insurance exchanges, would become effective in 2014.

Under this program, he said, abortion would be “subsidized directly through government funds to insurance companies.”

The Congressional Budget Office (CBO) originally estimated that 19 million Americans would receive insurance through the subsidies, but former CBO director Douglas Holtz-Eakin has argued that the number will be closer to 57 million.

This number may increase even further, Johnson explained, because the Supreme Court decided that states do not have to accept expanded eligibility for Medicaid. An estimated 17 million people would receive insurance through Medicaid in the expanded program.

If states choose not to participate, however, they would “push more people into this federal subsidy program.”

Johnson said that while a state can stipulate, “no abortion will be subsidized in this state,” they “still have to pay federal taxes, which subsidize abortion coverage in every state that doesn’t have an opt-out law.”

For example, Virginians may keep the federal money from going to abortion in their state, but their federal taxes would still pay for the practice in Maryland.

“There is no way you can escape it,” Johnson said.

The legal authority behind the controversial HHS mandates requiring contraception coverage “could apply to surgical abortion as well,” he said.

The Affordable Care Act “gives the Secretary of Health and Human Services the authority to mandate coverage of anything on the list of preventive services.”

Johnson speculated that contraceptives, abuse counseling, even medical marijuana could be added to the list of preventive services.

“Surgical abortion,” he added, “has been considered a preventive service before.”