Skip to content

Fox Discovers Unknown Article 28 of U.S. Constitution.

Fox News needs to study up on Article V of the United States Constitution. Unless Fox is aware of a clause written using invisible ink saying “a rightwing faux news service may amend this document to provide rhetorical cover for baseless opinion”, Articles cannot be added by Fox fiat.

Media Matters reports:

Fox national correspondent Steve Centanni said Kagan’s recusal may be required by “Article 28 of the Constitution.” Fox’s graphics department provided the relevant quote from the “U.S. Constitution, Article 28, Sec. 144”:

Three glaring problems with this argument: The Constitution has no Article 28, has no Section 144, and does not contain the language quoted.

However, the quote is not imaginary, just it’s link to the Constitution. It comes from Title 28 of the U.S. Code, section 455. Must have been a typo. Even so, editing out the context makes a dubious case for recusal seem uncontroversial. Funny how Fox typos and editing both trend to supporting the Right or vilifying the Left.

– Iron Filing



  1. Arthanyel wrote:

    As far as the SCOTUS taking up the health care act mandate, either Kagan and Thomas should both recuse themselves, or neither should.

    From a purely legal standpoint, neither one is required to do so – Thomas has never weighed in with an opinion (only his wife has, and he has accepted money from the anti-health care groups) and Kagan was never directly involved in any of the cases, nor was she directly involved with studying the issue beforfe the Act was written.

    From a practical standpoint, both are arriving to the case with a strong bias from personal relationships and therefore it is the right thing to do to stand aside.

    Saturday, November 19, 2011 at 1:13 am | Permalink
  2. Falkelord wrote:

    Arthanyel: The US code Sec 28 does require that if a spouse or child has a financial interest in the outcome of a case, the judge should recuse themselves. Thomas’ wife is CEO of a group that stands to benefit financially from the overturning of the health care law.

    Had this argument with someone the other day quoting why Kagan should recuse herself. Coincidentally, he wasn’t aware that Thomas’ wife was involved like this. Only Kagan. Did I mention he watches Fox news exclusively? Because that’s pretty important.

    But they’re not going to anyway.

    Saturday, November 19, 2011 at 6:34 am | Permalink
  3. starluna wrote:

    Falkelord – Arthanyel is correct. The USC you speak to applies explicitly and only to federal district and appellate court judges. It does not apply to the Supreme Court.

    I agree in principle with Arthanyel’s argument that either both of them or neither of them recuse themselves. It is widely believed in legal circles that the fate of HCR will depend on Justice Kennedy, but only if Thomas and Kagan are there (or not) as balance.

    I was at a forum last night with Paul Starr who was talking about his new book (BTW – very much worth buying). He discussed the opinion written by Judge Cavanaugh in the 2nd Circuit District Court HCR decision. As described by Starr, Cavanaugh (who is a very conservative judge) wrote that if the individual mandate in HCR is struck down, this would actually set a precedent that would make privatizing social security, another conservative policy goal, impossible. I thought this was an interesting point. Completely irrelevant to the topic of this posting, but I thought I’d pass it along for the thoughtful amongst us.

    Saturday, November 19, 2011 at 10:35 am | Permalink
  4. Arthanyel wrote:

    Thanks Starluna. I hadn’t considered the precedent in light of privatizing Social Security. That makes it really opinteresting, doesn’t it?

    Saturday, November 19, 2011 at 11:23 am | Permalink
  5. Falkelord wrote:

    I do want to hear more on that opinion by Cavanaugh Starluna. Aside from that, I can’t find anywhere that the particular code applies only to district and appellate judges.

    I guess I might be confused by the wording, but here’s the statute in full.

    Specifically number (4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

    The (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy; statute would apply to Kagan, since she was solicitor general and therefore, a party by proxy.

    I agree though, either both need to or neither needs to. It would still mean an uneven voting number.

    Saturday, November 19, 2011 at 7:16 pm | Permalink
  6. starluna wrote:

    Arthanyel – I thought it was one of the more interesting tidbits in the talk.

    Although, for the legal eagles, I’d like to make a couple of corrections. I was looking this up this afternoon to put in my sociology of law files and found that either I heard wrong or Starr misspoke. It was Justice Kavanaugh in the DC Circuit who wrote this in his dissent. His dissent essentially argues that the federal courts did not yet have jurisdiction over the issue because the part of the law being challenged (the individual mandate) hasn’t actually gone into effect. Therefore it was premature to make a decision on the issue. If you are interested, the bit about the privatizing of social welfare programs starts on page 62 of the dissent, but really gets going at the bottom of page 63 into page 64. He was clearly writing to the Supreme Court and other conservative lawyers when he put this in there.$file/11-5047-1340594.pdf

    Saturday, November 19, 2011 at 7:27 pm | Permalink
  7. SG wrote:

    That was no “typo” – the Fox News commentator said that “According to the Constitution, a Justice must recuse even if he or she quote ‘expressed an opinion concerning the merits of the particular case in controversy'”


    Sunday, November 20, 2011 at 9:34 am | Permalink
  8. starluna wrote:

    Falkelord – I can totally see why you would interpret that section as applying to the Supreme Court. However, you must look at Section 451, which has the definitions of terms that are key here. Specifically, the definitions state:

    “The term ‘judge of the United States’ includes judges of the courts of appeals, district courts, Court of International Trade and any court created by Act of Congress, the judges of which are entitled to hold office during good behavior.”

    Section 455 subsection (a) is very explicit: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

    The “shall disqualify” is clear that it must happen, but note that the provision specifically applies only to “judge(s) of the United States.” It does not apply to the Supreme Court. If Section 455 had stated “court of the United States”, then it would apply to the Supreme Court.

    The Code of Conduct for US Judges sets out recusal rules. However, these too only state that the Supreme Court justices “may” recuse themselves, which gives them the discretion to decide when they will.

    There have been efforts to codify in law the application of these rules to the Supreme Court, but that has not been very successful. If you are interested in this discussion, you can read:

    Sunday, November 20, 2011 at 12:14 pm | Permalink