Archive for the ‘Judiciary’ Category
In a PR stunt, Gov. Dayton announced that he’s appealing the ruling shooting down the Next Generation Energy Act, aka the NGEA. It’s a PR stunt because Gov. Dayton said “it’s a matter of protecting air quality.” The Eighth Circuit Court of Appeals disagrees, saying that “Minnesota would need Congressional approval to enforce that section of the 2007 law.”
Gov. Dayton is standing on shaky constitutional ground. He’s argued that the NGEA “doesn’t illegally restrict new coal-powered plants but merely requires that they be offset by reductions at existing plants.” That’s irrelevant. The Interstate Commerce Clause, found in Article I, Section 8, Clause 3 of the US Constitution states “The Congress shall have Power To … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Think of the insanity if this wasn’t the case. If the ICC didn’t exist, North Dakota could pass a law that requires all electricity sold into North Dakota had to be from nuclear power plants. Without the ICC, Minnesota would face a choice of not selling electricity into North Dakota or to generate that electricity at nuclear power plants.
Such laws would demolish state sovereignty. That’s intolerable.
A three-judge panel of the 8th U.S. Circuit Court of Appeals affirmed a lower court’s decision last week that barred Minnesota from enforcing key sections of the Next Generation Energy Act. The court sided with North Dakota utilities and other interests that argued [the NGEA] illegally regulates out-of-state utilities.
As usual, Rep. Pat Garofalo nails it with this statement:
This is an election year stunt aimed at improving turnout with environmental activists. It’s Gov. Dayton’s signal that he’s with them. Sadly, Gov. Dayton didn’t swear an oath to be with them. The oath he took said that he’d uphold the Minnesota Constitution and the US Constitution. As usual, he’s got his priorities all mixed up.
It gives me great joy to write this post to tell loyal readers of LFR that a 3-judge panel has ruled that Minnesota overstepped its authority when it passed the Next Generation Energy Act, aka NGEA.
The 8th Circuit Court of Appeals ruled that “the Next Generation Energy Act violates the U.S. Constitution’s provision allowing only Congress to regulate commerce among states.” According to the article, the three-judge panel “unanimously decided Minnesota does not have the authority to order North Dakota plants to make changes,” saying “a statute that has the practical effect of exerting extraterritorial control over ‘commerce that takes place wholly outside of the state’s borders’ is likely to be invalid.”
Put in simpler terms, this ruling isn’t likely to be overturned. If it were, it would, hypothetically speaking, give North Dakota the authority to pass a law that required that all electricity generated in Minnesota and sold to the regional power grid to be nuclear power. Still, Gov. Dayton isn’t backing down:
“I will continue to defend the state of Minnesota’s right to protect the quality of the air our citizens breathe,” Dayton said. “The state statute does not prevent anyone from building and operating a new power-generating facility, whose emissions will affect Minnesota’s air quality. It only requires that those new emissions must be offset by the same or greater reduction in emissions from other plants. In other words, Minnesota’s law encourages the replacement of older, more-polluting power plants with more efficient, cleaner facilities.”
Those are brave-sounding words but they aren’t rooted in intelligence. They’re rooted in the left’s ideology. No state has the right to order another state what it must do on anything. That ‘right’ doesn’t exist.
Stenehjem said that Minnesota’s options are limited: ask the entire appeals court to take up the issue, appeal to the U.S. Supreme Court or accept Wednesday’s ruling and pay North Dakota $1 million. The attorney general said the first two options are rarely accepted by the court system and he prefers the third. “I think it is more of a roadblock than a speed bump,” Stenehjem said of the ruling.
This ruling pretty much settles this issue. Gov. Dayton has the right to appeal the ruling but that’s just a waste of taxpayers’ money on a case he’ll lose.
Technorati: Next Generation Energy Act, Eighth Circuit Court of Appeals, Interstate Commerce Clause, Tenth Amendment, Mark Dayton, Environmental Activists, DFL, Wayne Stenehjem, North Dakota, Attorney General
Pat Buchanan has been an isolationist for decades. He’s a natural fit for Donald Trump. Buchanan’s also a longtime political hack, which explains why he’s turned into a Trump apologist. This column offers examples of Buchanan’s limited intellect and his substantial dishonesty in the cause of Trump.
It’s breathtakingly dishonest for Buchanan to say “Stated succinctly, Donald Trump said U.S. District Judge Gonzalo Curiel, who is presiding over a class-action lawsuit against Trump University, is sticking it to him. And the judge’s bias is likely rooted in the fact that he is of Mexican descent.” Apparently, it hasn’t dawned on Buchanan that Curiel’s rulings are terrible because he’s liberal, not Mexican.
Buchanan also asked “Before the lynching of the Donald proceeds, what exactly was it he said about that Hispanic judge?” Specifically, Trump said “I have a judge that is a hater of Donald Trump. A hater. He’s a hater. His name is Gonzalo Curiel.” During an interview this past weekend with CNN’s Jake Tapper, Trump said “He’s a Mexican. We’re building a wall between here and Mexico. The answer is he is giving us very unfair rulings, rulings that people can’t even believe.”
Apparently, Mr. Buchanan is willing to ignore Trump’s bigotry. It’s clear that Trump’s statements to Jake Tapper highlight (lowlight?) Trump’s bigotry. This statement is breathtakingly stupid:
The judiciary is independent, but that does not mean that federal judges are exempt from the same robust criticism as presidents or members of Congress.
The Sixth Amendment guarantees the right to a fair trial. When a presidential candidate attacks a judge, he’s attempting to tip the scales of justice. There’s nothing fair about that. Buchanan should know better. I suspect he knows that. I also think that Buchanan knows that presidents and presidential candidates have to be careful in not doing anything to tip the scales of justice.
Pat Buchanan is a fossil from a bygone political era. He should leave the arena of ideas because he’s a has been.
This article is this morning’s ray of hope for Minnesota’s constitution-loving patriots.
When Dave Unze wrote that “officers from Sauk Rapids and St. Cloud converged on Tyler Gottwalt” while he carried “a military-style rifle”, my initial reaction was that nothing good would come of the situation. It didn’t take long for Sauk Rapids and St. Cloud to reach different conclusions.
While “Sauk Rapids officers consulted with Benton County Attorney Philip Miller and … let Gottwalt go”, “St. Cloud officers disagreed and cited him for violating a city ordinance that prohibits carrying an uncased firearm in public.”
The good news, today’s ray of hope to constitutionalists, is that, following “a lengthy legal quarrel pitting a city ordinance against the state statute governing firearms,” “Stearns County District Court Judge Vicki Landwehr dismissed the charges against Gottwalt.”
I love this ruling. It isn’t because I’m advocating for people to carry AK-47s around St. Cloud. I love this ruling because it delivers a harsh reminder to cities that they can’t write gimmicky ordinances in the hope of overriding state statute.
While I love the outcome, I don’t like the fact that the city attorney didn’t notice the fact that this ordinance violated state statute. It’s one thing to be unaware of an ordinance that hasn’t been updated or repealed. I’d file that under ‘things happen’ or ‘they’re human’. When the arrest was made, though, City Attorney Matt Staehling should’ve tried finding out whether the city ordinance opposed state statutes.
Finally, Gottwalt should be compensated for his court costs because he never should’ve been through the system. The ordinance overstepped its authority once the state statute was passed.
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.