Category: Constitution

Worst Constitutional Law Professor Ever………

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Look at the White House transcripts of the most recent press conference:

Q: Can you understand, though, why some people might not trust what you’re saying right now about wanting to —

 THE PRESIDENT: No, I can’t.

This is wrong on so many levels:

  • The constitution was explicitly created to make sure that we did not have to trust the authorities.  It was intended to create contention, and quite honestly distrust, to make sure that powers are limited.
  • He does not understand how people might be concerned that he might not be completely forthcoming.

I am not sure what is more alarming, his complete lack of understanding of the critical in the Constitution concept of the separation of powers, or the pervasive narcissism.

I would be hard pressed to find a better illustration of why the founding fathers were concerned about the possibility of excesses by the executive.

Hurray for the ACLU

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They have filed suit to get access to the FISA court orders authorizing the NSA drift netting of Americans’ communications data:

The ACLU and Yale Law School’s Media Freedom and Information Clinic filed a motion today with the Foreign Intelligence Surveillance Court (FISC), seeking the release of secret court opinions that permit the government to acquire Americans’ phone records en masse. The public has a right to know the legal justification for the government’s sweeping surveillance—but, until now, those judicial opinions have remained a heavily guarded secret.

 The ACLU filed its motion on the heels of last week’s disclosure of an order, issued under Section 215 of the Patriot Act, compelling a Verizon subsidiary to turn over call details for every domestic and international phone call placed on its network during a three-month period. Since then, media reports and statements by members of the congressional intelligence committees have made clear that this order belongs to a much larger surveillance program—covering all the major telephone companies—that has been in existence for the past seven years. When pressed about the program, members of Congress as well as executive officials have emphasized that this mass acquisition of Americans’ phone records was reviewed and approved by judges on the FISC.

 ………

 The release of these FISC opinions is the first step to an informed public discussion of the surveillance powers asserted by the government. It should not be able to shield such a radical and unprecedented intrusion on Americans’ privacy behind a secret court issuing secret legal interpretations of our laws.

I have a sense that they are going to have to fight like hell to get access to the legal opinions, because the filings will almost certainly reveal the low bar presented by the administration, and the low bar accepted by the judiciary, will make a travesty of their protestations of due process.

As Juan Cole pithily notes, “We Misunderstood Barack: He only wanted the Domestic Surveillance to be Made Legal, not to End It.

The idea that you take a blatantly lawless program of nearly unlimited surveillance powers (Bush/Yoo unitary executive), and slap on some due process and retain the same nearly unlimited power, and it’s OK, because the Obama administration is a bunch of good people*, normal checks and balances do not need to apply.

It can all be done in secret, with the approval of a secret court that you have to keep away from toilet paper, because they will sign anything, and the public will never know, and it’s all good.

It’s why I call him, “the Worst Constitutional Law Professor Ever™.”

*Now that Rahm Emanuel is afflicting the people of Chicago, anyway.

Why I Call Him the Worst Constitutional Law Professor Ever.

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Just in case your wondering how bad Obama’s assertions of the right to kill anyone, at any time, are, note that not only are they dubious constitutionally, they directly conflict with the black letter text of the Magna Carta, meaning that he’s not just ignoring 230 years of law, he’s ignoring 798 years of law:

Two provisions of Magna Carta deserve our attention today, a gift to us from the Barons of 13th century England.

38. No bailiff for the future shall, upon his own unsupported complaint, put anyone to his “law”, without credible witnesses brought for this purposes. {This was replaced by improved legislation in 1863}

39. No freemen shall be taken or imprisoned or disseised {deprived of land} or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land. {This remains in force for the people of England, but no longer in the USA}

Our ancestors spent much blood, sweat, and tears between that day at Runnymede and the meeting in 1878 at Philadelphia. The liberties provided by the Constitution were won over those 30 generations, by the unruly Saxons and Normans of Medieval England — and the Founders, jealous of their liberties and willing to fight for them. In the decade since 9-11 we’ve thoughtlessly thrown away political structures that took centuries to build.

This country in general, and the Obama administration in general, is going in a profoundly wrong directions.

More on the 2nd Amendment and Its Relationship to Slavery

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I will direct you to The Hidden History of the Second Amendment, a 102 page article published in the U.C. Davis Law Review in 1998.  (Link is to the abstract, you can download the PDF from there)

This is a (obviously) a much longer, and much more extensively annotated, piece than either Thom Hartmann’s pro 2nd amendment/slavery patrol link article or Paul Finkleman’s argument against this.

I’ve read the full article, though it was a quick read, and while it clearly does not go as far as Hartmann, author Carl T. Bogus merely addresses the adoption of the 2nd amendment, rather than the whole Constitution as Hartmann does, but he does make a compelling case that the 2nd amendment was specifically a collective right granted to the states, and that the support for this amendment was driven by the fears of slave owners about an uprising, particularly in Virginia.

Bogus (I love that name) does admit that he no evidence that Madison, who wrote the Bill of Rights to preserve slavery, he does show that Madison’s compatriots and constituents in Virginia found the possibility that Congress would disarm the state slave patrols to be a concern of paramount importance.

In either case, it does make a slam dunk case for the 2nd amendment as a collective right assigned to the states, and not a personal right, which makes the so-called “strict constructionists” who voted for a personal right to firearms in District of Columbia v. Heller to be hypocrites and hacks.

Another Position on the 2nd Amendment

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Paul Finkleman makes the obvious point that the 2nd amendment was passed after the Constitution was approved, as evidenced by the fact that it’s an amendment, making Thom Hartmann’s argument that the it was about slave patrols moot.

The Bill of Rights was passed about two years after the Constitution was ratified, though some states had not ratified the Constitution, by the time that the Bill of Rights was proposed.

The actual line may be somewhere in the middle. You see, one of the factors in the ratification of the Constitution, was the Massachusetts Compromise, which involved a commitment to amending the Constitution, including the Virginia Declaration of Rights, which includes militia rights.

Considering that it was Mason and Madison, both of whom were slave holders, who were instrumental in the development and ratification of the Bill of Rights, it’s still a matter of some dispute.

My inclination is to lean a little bit on the side of Thom Hartmann, particularly given the history, which clearly shows that slavery was arguably the most contentious issue at the constitutional amendment.

In any case, it is more ambiguous than I originally suggested.

H/t DC at the Stellar Parthenon BBS.

Whiskey Tango Foxtrot?

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The DC Court of Appeals has just ruled that almost all recess appointments are unconstitutional:

Strictly curbing the President’s power to temporarily fill government posts to keep an agency in operation, the D.C. Circuit Court ruled Friday that the constitutional authority to fill a vacancy can only be used when one Congress has ended and before a new Congress comes to town, or when there is a formal break at the end of one session, but not during any other mid-session break. That part of the ruling by the three-judge panel was unanimous. On a second part, a two-judge majority ruled that the vacancy-filling power only applies to vacancies that actually open up during a formal recess, between sessions or between Congresses. Because lower courts are split on both issues, this historic controversy over the constitutional separation of powers is likely to go on to the Supreme Court.

 In the current atmosphere of partisan gridlock, which often involves thwarting of presidential nominations, the ruling provides a major new opportunity for a minority in the Senate to deny the President the authority even temporarily to put a new government officer to work in a vacant spot. When a vacancy arises while Congress is in session, and the Senate does not act on it, the President will not be able to fill it during the next time the Senate takes a break. The ruling came one day after the Senate chose not to make a major change in its filibuster rule, which is the main weapon of a Senate minority seeking to challenge presidential action.

I expect an appeal to the Supreme Court, though they may ask for an en banc hearing by the whole court of appeals first.

Unsurprisingly, David Sentelle, the right winger who gave us Ken Starr, is a part of this.

The 2nd part of the ruling ruling, where they say that the only recess that counts is the few days every two years when the old Congress has ended, and the new Congress is sworn in, flies in the face of over 150 years of precedent.

As to the pro-forma sessions, Obama needs to go Article 2 Section 3 of the Constitution on Congress:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of
Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

(emphasis mine)

So, with the House refuses to adjourn, which is what led to the pro-forma sessions, Obama can adjourn them.

As to the claim that recess appointments can only be made during intercongress recesses, and not intracongress recesses, I cannot believe that the Supreme Court could support that, but since Bush v. Gore, I’ve made it a point of never underestimating the politicization of the right wing of that body.

Interesting History on the 2nd Amendment

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I’ve made the comment that the current gun regulation regime is driven by issues of race.

Specifically, once the Black Panthers (the real ones, not the current wannabees) started carrying weapons openly, and then went to the California legislator while packing heat, it led to the passing of what was then the strictest gun control laws in the nation, signed into law by Ronald Reagan, because, “Oh Noes, Blax with Gunz“, and this panic about “black militancy” also led to the passage of the Gun Control Act of 1968.

Once this law was, passed, gun organizations, most notably the NRA started freaking out, because, Oh Noes, I Needs Gunz to Protekt me from Blax!

So we saw the development of the modern paranoiac gun “rights” movement.

Well, it turns out that race has had a major role in using and owning firearms in the United States goes back far further.

Historical documents show the 2nd amendment was put in the constitution to sanction paramilitary militias used to keep slaves from revolting or escaping:

The real reason the Second Amendment was ratified, and why it says “State” instead of “Country” (the Framers knew the difference – see the 10th Amendment), was to preserve the slave patrol militias in the southern states, which was necessary to get Virginia’s vote. Founders Patrick Henry, George Mason, and James Madison were totally clear on that . . . and we all should be too.

 In the beginning, there were the militias. In the South, they were also called the “slave patrols,” and they were regulated by the states.

In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and even required armed militia members to keep a keen eye out for slaves who may be planning uprisings.

As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, “The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search ‘all Negro Houses for offensive Weapons and Ammunition’ and to apprehend and give twenty lashes to any slave found outside plantation grounds.”

 It’s the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, “Why don’t they just rise up and kill the whites?” If the movie were real, it would have been a purely rhetorical question, because every southerner of the era knew the simple answer: Well regulated militias kept the slaves in chains.

 Sally E. Haden, in her book Slave Patrols: Law and Violence in Virginia and the Carolinas, notes that, “Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller.” There were exemptions so “men in critical professions” like judges, legislators and students could stay at their work. Generally, though, she documents how most southern men between ages 18 and 45 – including physicians and ministers – had to serve on slave patrol in the militia at one time or another in their lives.

 And slave rebellions were keeping the slave patrols busy.

The 2nd amendment was not about allowing citizens to resist tyranny, it was about allowing states to enforce the tyranny required to keep slaves in chains.

Live and learn.

H/t Cthulhu at the Stellar Parthenon BBS.

David Frum is Right

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link

If the healthcare mandate is illegal, so are the mandatory private retirement funds that are so dear to the right wing think tanks is illegal too.

So, if SCOTUS strikes down Obamacare, there is a silver lining.  It takes Social Security privatization off the table.

In fact, it might have the effect of ruling out a lot of the misguided “Market Based Solutions.”

Why I am Not Covering the Scotus Arguments Over Obamacare

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Because I think that the law and precedent is clear, and the only questionis whether there are 1, 2, 3, 4, or 5 justices who are corrupt enough, and partisan enough, to vote to strike down the act.

If Kennedy votes not to strike down, I think that he takes Roberts with him, giving a 6-3 decision, but if he swings the other way, so does Roberts.

The Chief Justice will not be on the dissenting side of this vote, because of the optics, not because of the law.

Roberts may be a corrupt partisan hack, but he only uses the secret sauce when it makes a difference in the final decision.

My guess is that it will be 4-5 to strike down much of the law, but if not, it will be 6-3 supporting it.

What must be noted though is that this is not a matter of law. The law has been settled for at least 60 years.

The only question is how corrupt the 5 right wing justices are.

Obama Goes for Accelerated Review of Healthcare Reform

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The Obama administration has decided not to appeal to the full 11th circuit court and go directly to the Supreme Court, which means that we could see a ruling as early as June.

I’m not sure what the tactics are here.

There are three legal questions here

  • The first question is whether they can rule on the mandate at all, since the anti-injunction act of 1869 prohibits suits against taxes until the tariff is actually levied.
  • The second question is whether if part of the law is struck down, is the entire law struck down. (severability)
  • The third question (and the biggie) is whether or not the mandate is constitutional. 

The third question is a slam dunk based on precedent, but I expect at least 4 of the justices to go full Bush v. Gore and find some contrived form of logic to ignore that.

It pretty much comes down to Justice Kennedy, but he ruled for Bush in Bush v. Gore, so I think that Obamacare is toast.

John Stewart Goes Postal on Barack Obama

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Brutal!

John Stewart gives Barack Obama a righteous, and justly deserved, beat-down over the President’s signing of the “f%$# the Bill of Rights” indefinite detention defense authorization bill.

It’s remarkable how much eloquence he (and to be fair, his writers) gives to the absolute outrage through humor than the outrage expressed by other commentators.

If you want to show someone who doesn’t get why what happened is so wrong, this conveys it more succinctly than anything I’ve read from Greenwald, or Taibbi, or the Rude Pundit.

Stewart is a national treasure.

Just When I Thought that I Could Not Get Any More Cynical………

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I read this analysis, which makes the very convincing case that Barack Obama does not object to the detention provisions of the defense authorization bill because he supports the rule of law, but because it classifies these detainees as prisoners of war, and so subject to the strictures of the Geneva Conventions:

However, on further reflection I conclude that the Obama regime’s objection to military detention is not rooted in concern for the constitutional rights of American citizens.  The regime objects to military detention because the implication of military detention is that detainees are prisoners of war. As Senate Armed Services Committee Chairman Carl Levin put it:  Should somebody determined “to be a member of an enemy force who has come to this nation or is in this nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes.”

Detainees treated according to the laws of war have the protections of the Geneva Conventions. They cannot be tortured. The Obama regime opposes military detention, because detainees would have some rights.  These rights would interfere with the regime’s ability to send detainees to CIA torture prisons overseas.  This is what the Obama regime means when it says that the requirement of military detention denies the regime “flexibility.”

The Bush/Obama regimes have evaded the Geneva Conventions by declaring that detainees are not POWs, but “enemy combatants,” “terrorists,” or some other designation that removes all accountability from the US government for their treatment.

By requiring military detention of the captured, Congress is undoing all the maneuvering that two regimes have accomplished in removing POW status from detainees.
A careful reading of the Obama regime’s objections to military detention supports this conclusion.(See http://www.whitehouse.gov/sites/default/files/omb/legislative/sap/112/saps1867s_20111117.pdf)

The November 17 letter to the Senate from the Executive Office of the President says that the Obama regime does not want the authority it has under the Authorization for Use of Military Force (AUMF), Public Law 107-40, to be codified. Codification is risky, the regime says. “After a decade of settled jurisprudence on detention authority, Congress must be careful not to open a whole new series of legal questions that will distract from our efforts to protect the country.”

In other words, the regime is saying that under AUMF the executive branch has total discretion as to who it detains and how it treats detainees. Moreover, as the executive branch has total discretion, no one can find out what the executive branch is doing, who detainees are, or what is being done to them. Codification brings accountability, and the executive branch does not want accountability.

Those who see hope in Obama’s threatened veto have jumped to conclusions if they think the veto is based on constitutional scruples.

(emphasis original)

Read the White House PDF.  They flat out  say that the reason that they object is because they want more “flexibility” (to torture, etc).

It’s not for nothing that I call Obama the “The Worst Constitutional Law Professor Ever”.

H/t Washington’s Blog.

Normally, I Find This to Be a Typically Meaningless Gesture…

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But Dennis Kucinich and the other house members who are suing Barack Obama for violating the War Powers Act in Libya are doing the right thing:

Ten House members led by Rep. Dennis Kucinich (D-Ohio) are filing a complaint in federal court against President Obama for taking military action in Libya without first seeking congressional approval.

Kucinich and Reps. Walter Jones (R-N.C.), Howard Coble (R-N.C.), John Duncan (R-Tenn.), Roscoe Bartlett (R-Md.), John Conyers (D-Mich.) Ron Paul (R-Texas), Michael Capuano (D-Mass.), Tim Johnson (R-Ill.) and Dan Burton (R-Ind.) filed the complaint Wednesday at the U.S. District Court for the District of Columbia.

“With regard to the war in Libya, we believe that the law was violated,” Kucinich said in a statement. “We have asked the courts to move to protect the American people from the results of these illegal policies.”

The House members argue that the Obama administration overstepped its constitutional authority by authorizing the use of U.S. military force abroad without first receiving approval from Congress. U.S. forces have been involved in the campaign against Libyan leader Moammar Gaddafi for 88 days.

Critics argue that Obama violated the 1973 War Powers Resolution by failing to seek congressional approval for the mission.

It would be interesting to see how the Supreme Court might handle this.

I’ve always felt that the requirement for Senate to declare war implies that there should be a legislative requirement for the approval of war, but these days, no one seems to take this particularly seriously.

I would note that Libya appears to be a particularly cut and dried case though, there is no security threat to the US, and the primary reason that we are involved seems to be that the US Military didn’t want to be left out of the party started by French and British neo-Colonial political calculus.

Reagan Appointed Judge Rules Entire Healthcare Law Unconstitutional

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It was such a good idea for some moron to leave out a severability clause from the bill, huh?

A second federal judge ruled on Monday that it was unconstitutional for Congress to enact a health care law that required Americans to obtain commercial insurance, evening the score at 2 to 2 in the lower courts as conflicting opinions begin their path to the Supreme Court.

But unlike a Virginia judge in December, Judge Roger Vinson of Federal District Court in Pensacola, Fla., concluded that the insurance requirement was so “inextricably bound” to other provisions of the Affordable Care Act that its unconstitutionality required the invalidation of the entire law.

“The act, like a defectively designed watch, needs to be redesigned and reconstructed by the watchmaker,” Judge Vinson wrote.

The judge declined to immediately enjoin, or suspend, the law pending appeals, a process that could last two years. But he wrote that the federal government should adhere to his declaratory judgment as the functional equivalent of an injunction. That left confusion about how the ruling might be interpreted in the 26 states that are parties to the legal challenge.

And here is the money quote, which has since been removed from the online article:

The Florida plaintiffs ensured they would draw a Republican-appointed judge by filing the lawsuit in Pensacola.

I believe that the operative phrase here is, “Forum shopping for an activist judge.”

It’s all going to be down to Anthony Kennedy, because the other 4 reactionaries on the court are hyper-politicized assholes who have already made their mind based on partisan considerations.

When Alan Keyes Calls You Crazy………

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You are completely batsh%$ insane:

“The 14th Amendment is not something one should play with lightly,” Keyes said in response to a question from ThinkProgress at the Tea Party Express press event today. “Lindsay Graham used the term — as people have carelessly done over the years — referring to the 14th Amendment as something that has to do with ‘birthright citizenship’ and we ought to get rid of ‘birthright citizenship.'”

“Well, let me see,” Keyes added sarcastically, “If citizenship is not a birthright then it must be a grant of the government. And if it is a grant of the government, it could curtail that grant in all the ways that fascists and totalitarians always want to.”

This is like Keith Richards telling you that you do too much drugs.