Archive for the ‘Judiciary’ Category
Gregory Diskant’s op-ed is a display of some of the most warped thinking (if it rises to that level) I’ve seen. Diskant argues that it “is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege.”
First, the principle of advise and consent is a responsibility, not a right or privilege. Second, it’s altogether improper to think that the executive branch has the authority to determine when the legislative branch has waived its responsibility of advise and consent. The Supreme Court’s 2014 ruling in NLRB v. Noel Canning is instructive on this separation of powers issue, saying “The Clause should be interpreted as granting the President the power to make appointments during a recess but not offering the President the authority routinely to avoid the need for Senate confirmation.”
Further, it states “For purposes of the Recess Appointments Clause, the Senate is in session when it says that it is, provided that, under its own rules, it retains the capacity to transact Senate business.” In other words, the Senate’s rules, which are voted on at the start of each new Congress, determine when it’s in recess or when it chooses to waive its advise and consent responsibilities. It isn’t within the Executive Branch’s authority to make official determinations on how the Legislative Branch must do its job.
If the Supreme Court ruled that the Executive Branch could tell the Legislative Branch how to do its jobs, that would eliminate the system’s necessary checks and balances. Further, such a ruling would eliminate the concept of co-equal branches of government.
This sentence is particularly disturbing:
The president should advise the Senate that he will deem its failure to act by a specified reasonable date in the future to constitute a deliberate waiver of its right to give advice and consent.
Again, the Supreme Court ruled in NLRB v. Noel Canning that the Executive Branch doesn’t have the authority to tell the Senate how to do its business. That ruling wasn’t a 5-4 ruling, either. It was a 9-0 decision, meaning it was such an easy ruling that all 9 justices voted against President Obama’s executive overreach.
Mr. Diskant’s op-ed isn’t a serious piece of work. It’s virtually worthless from an academic or legal standpoint.
Technorati: Barack Obama, Merrick Garland, Supreme Court Nominee, NLRB v. Noel Canning, Advice and Consent, Co-equal Branches of Government, Executive Branch, Legislative Branch, Checks and Balances, Separation of Powers, Judicial Branch
When KSTP’s Tom Hauser interviewed Sen. Klobuchar, (DFL-MN), Sunday morning, they discussed President Obama’s nomination of Judge Merrick Garland to replace Antonin Scalia on the Supreme Court. Like an actress reading from a script, Sen. Klobuchar said that Judge Garland is a moderate. That term is interesting because it’s empty. Being the inquisitive type, I sent Sen. Klobuchar a message for clarification. It read “Sen. Klobuchar, you told Tom Hauser that Judge Garland is a moderate. I understand what a political moderate is but I don’t know what a judicial moderate is. I’d appreciate it if you’d explain what your definition of a judicial moderate is. Further, if Judge Garland is a moderate, does that mean Justice Sotomayor and Justice Kagan are radicals or ideologues? I’d appreciate a quick, substantive reply.”
Sen. Klobuchar’s auto-response said “Thank you for taking the time to e-mail me. This is a confirmation that we have received your message. One of the most important parts of my job is listening to what the people of Minnesota have to say to me. I am here in our nation’s capital to do the public’s business on behalf of the people of our state. Please continue to visit my website at http://www.klobuchar.senate.gov to follow what I am working on, both in Washington and Minnesota. It is frequently updated with current news and events regarding my work in the U.S. Senate. Additionally, many constituents ask about tracking the progress of legislation. One useful tool is to regularly check my website. Another resource I recommend is the Library of Congress legislative information website, http://thomas.loc.gov. I hope you find this information helpful. – Amy”
Since Sen. Klobuchar hasn’t explained what a judicial moderate is yet, I’ll rely on something that Dennis Prager wrote about Judge Garland:
In a column in The Wall Street Journal, Juanita Duggan, President and CEO of the National Federation of Independent Business, wrote that Garland is so anti-small business and so pro-big labor, that “This is the first time in the NFIB’s 73-year-history that we will weigh in on a Supreme Court nominee.”
What worries the NFIB, she explains, is that “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB (National Labor Relations Board).”
Apparently, a judicial moderate sides with Big Labor 100% of the time. Forgive me if I don’t agree that that’s the definition of a moderate. Forgive me if I think that sounds more like a hardline leftist ideologue. Then there’s this:
Tom Goldstein wrote in the SCOTUSblog that Garland favors deferring to the decision-makers in agencies. “In a dozen close cases in which the court divided, he sided with the agency every time.”
Again, that sounds more like the definition of a leftist ideologue. It doesn’t sound like a centrist/moderate. This is worth checking out, too:
Technorati: Merrick Garland, SCOTUS, Barack Obama, Amy Klobuchar, Democrats
Dennis Prager’s latest Townhall article interrupts the Democrats’ narrative that Merrick Garland, President Obama’s nominee to replace Antonin Scalia on the Supreme Court, is a moderate.
For instance, for the first time in the NFIB’s history, they will be taking a position against a Supreme Court nominee. In fact, it’s the first time in their history that they’ve taken any position, positive or negative, on a Supreme Court nominee.
Juanita Duggan, President and CEO of the NFIB, said they’re making their position known because “in 16 major labor decisions of Judge Garland’s that we examined, he ruled 16-0 in favor of the NLRB.” It’s apparent that Judge Garland’s mind was made up long ago. It’s clear that he’ll consistently favor Big Labor over the Constitution.
The term moderate isn’t relevant when talking about judges. You either interpret laws based on the plain language of the Constitution or you don’t. My thought is that moderate judges don’t exist except in newspapers like the NY Times, the Washington Post or the LA Times. Then there’s this:
“If the late Justice Antonin Scalia, a staunch conservative, is replaced by a moderate-to-liberal Justice Garland, the court would tip to the left on several key issues, like abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.”
In other words, the very same author who describes Garland as a centrist believes that Garland votes left on essentially every major issue confronting the nation and the Supreme Court.
Based on this information and the Times’ description of Judge Garland, we should assume that centrist/moderate judges agree with liberals on “abortion, affirmative action, the death penalty, gun control, campaign spending, immigration and environmental protection.” I can’t wait to hear how that’s dramatically different than liberal justices like Sotomayor or Ginsberg.
Republicans should reject Garland. They shouldn’t give him a hearing. They shouldn’t give him a vote on the Senate floor. They give him a Reid-like pocket veto while explaining why Garland is a creature of the left and while highlighting how dishonest the Democrats are in calling Garland a centrist.
According to this NY Times article, Laura Ingraham wants the GOP to head in a populist direction. That isn’t leadership. That’s capitulation. That’s handing the nomination to Donald Trump. What’s worst is that it means our courts will be packed with activists whether Trump wins or Hillary wins.
Ms. Ingraham is famous for lecturing the DC insiders for their failures. It’s time to lecture her for her foolishness. Populism is what got this nation into this situation. Populism is liberalism with a different name. Populism isn’t rooted in constitutional principles. Populism is prone to mob rule, which is just a step away from anarchy. Does Ms. Ingraham really want to deal with a system of government where the mob rules? Does Ms. Ingraham prefer government of and by judicial fiat? That’s what populism will give us. In fact, populism will give us that sooner rather than later.
If she doesn’t, then she’d better stop being Trump’s apologist. It isn’t just Ms. Ingraham that’s making this tragic mistake, either. Andrea Tantaros, Eric Bolling and Sean Hannity are making the same mistake. That trio has bent over backwards rationalizing away Mr. Trump’s contradictory statements. This weekend, Hannity went so far as to tell Steve Hayes that Trump didn’t say that he’s in favor of the Obamacare mandate even though there’s video of Trump making that statement during Thursday night’s town hall meeting on CNN:
“The establishment G.O.P. is lying to itself. This election at its core is a rejection of their globalist economic agenda and failed immigration policies — and of rule by the donor class,” said Laura Ingraham, the conservative talk-radio host and political activist. “Millions want the party to go in a more populist direction.”
Ms. Ingraham isn’t really that stupid. You can’t be that stupid and be a Supreme Court law clerk. It’s possible, however, to misdiagnose the root cause of the problem. The economy isn’t failing because of globalism. It’s failing because our taxes are outrageous, the compliance costs of our regulations are crushing businesses and our regulations are designed to crush competition.
When Mr. Trump argues that companies are leaving the United States, he’s right. It’s just that his plan to fix that won’t fix anything. The type of tariffs that Mr. Trump is advocating for kill jobs. President Reagan and President Clinton are the 2 greatest job creators of my lifetime. They both thought that the Smoot-Hawley Tariff Act caused the Great Depression. Most economists agree with that.
Trump’s economic plans aren’t rooted in capitalism. They’re rooted in corporatism. Trump hasn’t talked a single sentence during the debates about helping small businesses create jobs. Trump certainly hasn’t said anything about regulatory reform.
William F. Buckley once famously said that “A Conservative is a fellow who is standing athwart history yelling ’Stop!’” It’s time this generation of conservatives stood athwart history yelling ‘Stop’! It’s imperative because American exceptionalism is what’s on trial.
Technorati: Donald Trump, Laura Ingraham, Populism, Liberalism, Anarchy, Smoot-Hawley Tariff Act, Great Depression, Ronald Reagan, William F. Buckley, Free Trade, Capitalism, Conservatism, Supreme Court, Election 2016
Earlier this week, a video highlighted Sen. Schumer’s statements on judicial nominees that directly contradict his statements today. Because he got caught accidentally telling the truth, Sen. Schumer wrote this statement. Sen. Schumer’s statement highlights his judicial philosophy, which is captured when he said “During President Bush’s term, Democrats had voted for Justice Roberts and allowed Justice Alito to go through?—?both of whom said they would, as Justice Roberts said, be umpires calling balls and strikes. Once they got on the court they immediately started moving the court in an ideological direction, and they have continued to do so. Decisions that dramatically deviated from precedent and pulled America in a strongly rightward direction, handed down with a 5–4 majority, became the hallmark of this court.”
Schumer continued, saying “Under Chief Justice Roberts, the court has deviated from strongly held precedents on campaign finance issues, voting rights, choice, unions, environmental regulations, and many others.” Notice that Sen. Schumer didn’t accuse the Roberts Court of deviating from the text of the Constitution. Sen. Schumer’s biggest concern was that Justice Roberts didn’t follow precedents, which might or might not align with the text of the Constitution.
Frankly, precedents might not be worth much. If they’re grounded in the Constitution, then they might be helpful. If they aren’t grounded in the Constitution, precedents should be rejected and/or scrapped immediately. The gospel according to Justice Scalia says that text of the Constitution and the text of the statute being litigated determine the ruling. They’re the principles behind originalism and textualism.
It’s worth noting that liberals love precedents and stare decisis when it leads to their preferred political outcome but they rejoiced when the Supreme Court threw out the precedent that led to their ruling on gay marriage. Democrats like Schumer don’t care about precedents as much as they love getting the verdicts that fit with their agenda.
Putting things in biblical terms, the difference between basing rulings on the text of the Constitution and basing rulings on precedents is striking. Precedent-based rulings are flimsy like quicksand. Text-based rulings are as sturdy as the firm foundation that they’re built on.
Shouldn’t we want to build a judiciary that makes its rulings based on something foundational, not on something flimsy?
This statement is BS:
But whether Republicans agree or not with my evaluation of whichever candidate the president puts forward, they have a constitutional obligation to hold hearings, conduct a full confirmation process, and vote on the nominee based on his or her merits.
Sen. Schumer isn’t telling the truth. There’s nothing in the Constitution, in either Article I, which deals with congressional responsibilities, or Article III, which deals with the judicial branch, that requires Congress to act on a president’s judicial nominees. Further, Sen. Schumer voted 26 times during President Bush’s first term to continue filibustering President Bush’s judicial nominees. How is filibustering judicial nominees voting “on the nominee based on his or her merits”?
I’d like to thank Sen. Schumer for issuing this statement. It exposes the flimsiness of the liberals’ judicial philosophy.
Since news broke that Supreme Court Justice Antonin Scalia had died Saturday, people have buzzed about whether President Obama would nominate a replacement (he will) and whether the Senate will confirm a nominee (they won’t.) While this will sound a little dramatic, the truth is that this pick has the potential of changing the shape of the nation.
The truth is that past liberal courts haven’t cared about the text of the Constitution. Whether you agree or disagree with Roe v. Wade, the Supreme Court didn’t have the authority to decide that lawsuit. It wasn’t a federal issue. State legislators and governors should have been given time to figure out how their state wanted to deal (or not deal) with the issue. There was nothing in the Constitution that said the federal government had the right to get involved. If the federal government wanted to get involved, Congress, not the Supreme Court, should have dealt or not dealt with the issue.
Since the right to an abortion isn’t found anywhere in the Constitution, that means it’s a political issue. It isn’t a judicial issue until legislation is written and a bill is signed into law. The fact is that the Warren Court didn’t respect the principle of federalism because that court didn’t respect the states. Too frequently, the Warren Court saw the federal government as the sole authority on issues.
That belief stands in total contrast with the Founding Fathers’ beliefs. The Founding Fathers believed that states, local units of government and individuals should make the vast majority of decisions. That’s the underlying principle behind federalism.
In the past, liberal courts haven’t seen fit to rule that the Second Amendment didn’t apply to individuals. They’ve argued that it applied exclusively to militias. Then liberal lawyers argued that the Second Amendment is essentially void because we aren’t protected by militias anymore.
The next justice will either decide that the people who wrote the Constitution thought things through, debated the pros and cons of each provision in the Constitution, then voted on whether each provision was worthy of being included in the Constitution and the Bill of Rights.
The Founding Fathers didn’t deal with trendy things. They wrote the Constitution to stand the test of time. They wanted to make it impossible for a dictator to control the nation. That’s why they insisted on including checks and balances into everything they put into the Constitution. They understood the value of deliberation and negotiation. They understood the importance of placing limits on government, too.
The Warren Court and, to a lesser extent, the Rehnquist Court issued rulings that allowed government to overrule the wishes of the governed. The last thing freedom-loving people should want is a nation ruled by the judiciary. Far too often, the Supreme Court created rulings from their imagination. Such is the case with Wickard v. Filburn.
At issue in Wickard v. Filburn was whether Congress could “regulate the production of wheat intended for personal use and not placed in interstate commerce” and whether “Congress could regulate trivial local intrastate activities that have an aggregate effect on interstate commerce via the commerce power.” The Supreme Court ruled that Congress could regulate farm production even if those products never crossed from one state to another. In fact, that court ruled that the federal government had the right to regulate crop production even though the crops never left the farmer’s land.
There’s no justification for the federal courts to get involved because this was a local issue. Prior to this ruling, the federal government only used the Interstate Commerce Clause to regulate commerce that left one state and went to another state. Wickard v. Filburn opened the floodgates that provided the precedent for other federal intrusions into matters that were supposed to be dealt with at the state level.
When Bret Baier asked Donald Trump about his opinion of eminent domain, Mr. Trump said that “eminent domain is a wonderful thing” before saying that eminent domain should be used to get “holdouts” to sell their property.
During his interview with Bret Baier, Mr. Trump described a situation where the developer had purchased “11 or 12 parcels” but one “holdout” wouldn’t sell. Mr. Trump argued that the developer, who wants to create a big factory employing thousands of people, should be able to use eminent domain to boot the private property owner out of their home. Now that he’s at the center of a conservative firestorm, Trump’s retreating, saying that “You can’t build a road without eminent domain. In order to survive as a country, how you can not have roads?”
That’s classic liberal backtracking. It’s no different than Hillary Clinton saying that she doesn’t support the TPP that she negotiated. Mr. Trump knows that nobody in the conservative movement objects to the use of eminent domain to build roads or other pieces of infrastructure. That isn’t controversial.
The right to be secure in your property is a fundamental right guaranteed by our Constitution. It’s the foundation of our capitalist system. Mr. Trump thinks that taking a person’s property isn’t a big deal if it’s for the greater good, as long as he’s the determiner of what the greater good is.
That’s just a different way of saying that the ends justify the means. Either way, this proves that Trump isn’t the man (or woman) of integrity we need in the White House. Having a president who would appoint justices that reinforce Kelo v. New London ruling
Laurence Tribe’s op-ed about the King v. Burwell ruling is typical progressivism. It’s all about rationalizing a terrible, wrong-headed decision. Tribe made some statements that deserve rebutting. This is one of those statements:
The Supreme Court correctly applied standard interpretive methods in holding that, despite the apparent clarity of those four words, the law makes subsidies available on all exchanges, state and federal. Looking to the overall purpose, structure, and context of the Act, the court asked with incredulity why Congress would risk total implosion of the ACA just to encourage states to create their own exchanges especially when Congress itself provided the federal backstop.
When the words are clear, which they are, the test that Tribe mentioned isn’t applied. Typically, that test is only applied if the words are ambiguous. Chief Justice Roberts said that the 4 words were “inartful drafting.” Justice Scalia’s response was that it wasn’t likely that that inartful drafting would appear in the ACA’s language 7 different times.
As for whether Congress “would risk total implosion of the ACA just to encourage states to create their own exchanges”, the answer is yes. That’s why the federal government didn’t start building their website right away. Their plan — their concerted plan — was to pressure states into creating their own exchanges. Further, the IRS didn’t write its rule extending subsidies to people who bought their insurance through HealthCare.gov until it was clear that a substantial number of states weren’t going to create state-run exchanges.
Isn’t it curious that that clarification wasn’t the first thing mentioned in the rules? The instructions to the IRS weren’t written until late in the process. Why wasn’t it the first rule written? If the ACA’s success hinged on the subsidies, shouldn’t that have been the first rule written?
The people also won because the Roberts Court has given them a solid basis for trusting that hard-won victories in Congress will remain intact when challenged in the court. When it decides constitutional cases, like the much-anticipated same-sex marriage cases, the court’s role is to serve as a check on the people, ensuring that legislative or popular majorities don’t act in violation of the Constitution. This is the sense in which the court has famously been described as “counter-majoritarian.”
The Constitution was built to restrict what government isn’t authorized to do. That’s insanity. The Fourth Amendment wasn’t written to tell people what they couldn’t do. It was written to tell government what it can’t do. Specifically, the Fourth Amendment prohibits the government from conducting unreasonable searches against private citizens and publicly-traded companies.
The First Amendment prohibits Congress from writing laws that restrict people’s ability to speak out against politicians and government. It isn’t a check on people. It’s another check on government.
If Prof. Tribe can’t understand the most basic principles underpinning the Constitution, then his opinions on Supreme Court rulings is questionable.
It’s looking like Rebecca Otto will file a lawsuit to prevent private auditors from conducting audits:
State Auditor Rebecca Otto Wednesday reiterated her determination to take a recent change to her office’s responsibilities to court unless legislators repeal the new rules in a special session. “They’re going to have a special session and they can deal with this then,” Otto told MPR News host Tom Weber. “If they choose not to, they’ve made a choice. If they don’t want to [spend money on a lawsuit], they should take care of it in a special session.”
Gov. Dayton and Ms. Otto have gotten uppity about this. David Schultz has chimed in, too. Here’s my question to that trio: Where in Minnesota’s Constitution does it outline the State Auditor’s responsibilities?
I’ve read Article V. That’s where the Constitution establishes the office of State Auditor. Nowhere in Article V does it list the auditor’s responsibilities. Article V, Sect. 3 outlines the governor’s responsibilities. That’s the only constitutional officer whose responsibilities are defined in Minnesota’s Constitution.
Since the legislation passed by the legislature and signed by Gov. Dayton doesn’t attempt to abolish the State Auditor’s office, there isn’t a constitutional issue. The office is still intact. It’s just that the auditor’s responsibilities have changed. Here’s where things get tricky for the DFL.
Twenty-eight counties currently have the right to hire private auditors. That carve-out isn’t in the Constitution, meaning that changed through the passage of a state statute. If that change can happen through passing a state statute, why can’t other changes happen via state statute?
Otto argues the move is unconstitutional, and that it stands to gut her office.
Ms. Otto will lose that fight. Here’s why:
Anderson’s plan extends that option to all Minnesota counties, though it preserves Otto’s authority to double check private audits.
Sarah Anderson’s plan changes Ms. Otto’s responsibilities. It doesn’t eliminate Ms. Otto’s responsibilities, which is the linchpin constitutional argument.
If Rep. Anderson’s legislation sought to eliminate the State Auditor’s constitutional office, that legislation would be DOA. When the Treasurer’s office was eliminated in 1998, it was done with a constitutional amendment.
That doesn’t guarantee that the courts will do the right thing. Unfortunately, there are too many liberal jurists who either don’t understand the Constitution or they implement their policy preferences. Let’s hope that doesn’t happen in this instance. If it does, however, then it’s time for voters to vote out the justices that don’t follow the clear language of the Constitution.
Not even justices are above the law.
Last night, Megyn Kelly demolished defense attorney Arthur Aidala’s argument that no state laws were broken when the Duggars’ daughters were identified as victims of sex crimes. Check this video out:
First, here’s the Arkansas law that’s being debated:
Arkansas Legal Code
ANN. SEC. 16-90-1104
“A law enforcement agency shall not disclose to the public information directly or indirectly identifying the victim of a sex crime.”
Aidala argued that the lawyer in question relied on the opinions of 2 different Arkansas attorneys general in making his decision. If that’s true, which I believe is true, then these attorneys general got their opinions horribly wrong.
The Arkansas statute is exceptionally clearly written. It isn’t ambiguous. If there’s another law that says that people who commit sex crimes must be identified, then these attorneys general should’ve brought these conflicting statutes to the attention of the Arkansas legislature, Arkansas’ governor and the people of Arkansas. Those conflicting statutes must be fixed so that they aren’t conflicting anymore. Otherwise, teenage victims of sex crimes will be doubly victimized in the future.
Fortunately, a judge has stepped in and said “Don’t release it and destroy the remaining reports.”
What people think about Josh Duggar is irrelevant to this topic. That’s totally separate. The law states what the law states. Releasing the report that identified those girls was illegal. Now that the Arkansas judge has ruled, that’s the law of the land unless and until the legislature changes those statutes. I’m betting that the legislature won’t touch it because it’s an emotionally charged subject that’s settled at this point.
The bigger point, though, to this discussion is that a state attorney general’s opinion shouldn’t conflict with clearly written state statutes. Opinions and precedents that conflict with statutes are simply wrong. There can’t be any question about that. Period.