Archive for the ‘Judiciary’ Category
Last fall, a dispute arose about judicial elections. Specifically, the dispute arose over whether judicial district conventions had the authority to endorse candidates for appellate court judgeships. This post won’t deal with that matter, mostly because a hearing was held in February, 2013 at the State of Minnesota Office of Administrative Hearings on the matter. Additionally, this post won’t defend anyone’s actions.
Rather, I’ll focus this post on settling disputes between Republican Party activists. This past Saturday, a resolution was approved at the CD-8 convention. Here’s the text of that resolution:
Minnesota 8th Congressional District Republican Party of Minnesota
Annual convention, Saturday, March 16, 2013
GOP insider Harry Niska filed a legal action against GOP Judicial Chair Bonn Clayton over differences of opinion in the interpretation of the MNGOP Constitution and;
This legal action was heard February 7 & 8, 2013 and;
Complainant Niska was represented in court by recent MNGOP employee David Asp before a three-judge panel convened by the Minnesota Office of Administrative Hearings and;
Whereas differences of opinion within the party are best resolved first within the party and;
There is reasonable evidence that MNGOP, Chair, Pat Shortridge, at minimum approved of this extraordinary legal action;
Now, therefore be it resolved that we strongly condemn the GOP activist complainant, appropriate MNGOP leadership and the Executive Committee for enabling the legal action against Judicial District Chair Bonn Clayton instead of resolving the matter within the State Central Committee.
According to the text document, the document was “prepared and paid for by Terry Stone on his own behalf and not done by any candidate or candidate committee.” When I contacted Mr. Stone, he stated something emphatically to me. Here’s what he said:
This resolution isn’t about who is right or who is wrong; it’s about the dignity of being a Republican activist and the correct way to resolve intramural disputes. This complaint was filed November 7, 2012. Any alleged harm was already resolved by the election. There was no timeliness and the issues should and could have been resolved by the Central Committee at its next meeting.— Terry Stone
Before anyone thinks this is a split within the RPM that can’t be repaired, they’d best think again. I know both Mr. Stone and Mr. Niska. They obviously have different points of view but their commitment to defeating DFL legislators and congresscritters is indisputable.
It’s apparent to me that Mr. Stone simply thinks this issue should’ve gotten resolved at a State Central Committee meeting, not at the Office of Administrative Hearings.
In my humble opinion, I think that’s the right way to resolve disputes between committed party activists. If, after that attempt is made, things still aren’t resolved, a hearing at the Office of Administrative Hearings is still available as an option.
Democratic lawmakers are urging President Obama to force Republicans to take him to court over the controversial issue of raising the debt ceiling.
They believe the Supreme Court ultimately will have to resolve the battle over spending now raging between Republicans and the president.
But how the courts will rule is shrouded in uncertainty because little case law exists to serve as meaningful precedent, legal scholars say.
Democrats in Congress argue Obama should not feel constrained by the 1917 debt-limit law, which the federal government is projected to hit in late February, because it conflicts with other laws.
“The president, I think, has the authority under the Constitution and under the various statutes that are passed, if nothing is done, he must do something about paying the bills,” said Sen. Tom Udall (D-N.M.). “That issue may well go to the courts in our system.
It’s disgusting that a US senator would say something this deceitful. Ed excoriates Sen. Udall’s argument in a New York minute:
Supporters of this newfound presidential power over statute have been pointing to the 14th Amendment, specifically its fourth clause: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.” However, that passage doesn’t give the executive branch authority to do anything, and in fact requires that the debt “be authorized by law.”
Who does the authorizing? The more directly relevant Constitutional reference comes in Article I, Section 8, which specifically assigns Congress the authority to borrow: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; To borrow money on the credit of the United States[.]“ The debt limit itself is Congressional authorization for the executive branch (through the Treasury) to borrow what is needed.
If President Obama attempted to raise the debt limit through executive fiat, he’d be challenged in the courts before the announcement would be an hour old, most likely in the DC Circuit. One thing that might happen is that the court could grant a TRO prohibiting President Obama from enforcing this. The other option is that they’d rule against President Obama’s anti-constitutional action.
The clear language of the Constitution gives the power of the purse to Congress. That means the executive branch is prohibited from taking this extraconstitutional action. Further, any ConLaw professor will quickly note that laws that conflict with the US Constitution are unconstitutional, meaning that they’re a moot point.
It isn’t likely that President Obama will take this action because it would clearly expose him as running an imperial presidency. That isn’t the type of thing he’d want as part of his legacy.
People for the American Way, one of DC’s most liberal special interest groups, is trying to kick Michele Bachmann off the House Intelligence Committee with trumped up charges. Here’s what they’re saying:
In an Oct. 3 paid message in The Nation magazine, People for the American Way said “these fringe conspiracy theories and McCarthyite fear tactics have no place in Congress and especially have no place on the House Intelligence Committee.”
Michele Bachmann, Louie Gohmert, Lynn Westmoreland, Tom Feeney and Trent Franks asked the IGs of several cabinet departments to investigate whether the Muslim Brotherhood was gaining undue influence on US foreign policy. That’s what PFAW characterizes as “fringe conspiracy theories and McCarthyite fear tactics.”
PFAW is nothing more than another fringe lefty organization. They’ve got a patriotic-sounding name and a radical leftist agenda. PFAW’s board of directors reads like a who’s who of committed leftists. Alec Baldwin, Mary Frances Berry, Julian Bond and founder Norman Lear are the highest profile board members. This key paragraph from PFAW’s statement on John Roberts’ confirmation as Chief Justice of the Supreme Court speaks volumes:
We are disappointed with those Democrats and moderate Republicans who chose to support Judge Roberts, despite his long record of working to undermine rights and legal protections, his evasive answers to the Senate, and the Bush administration’s continued refusal to release key documents that would have illuminated his record and approach to the Constitution.
That’s BS. John Roberts was a judge on the DC Circuit Court of Appeals for 2 years before his confirmation as Chief Justice of the U.S. Supreme Court. It’s impossible to accumulate a “long record of working to undermine rights.”
Now PFAW is criticizing Michele Bachmann, arguing that she’s using McCarthyite fear tactics.
“Rep. Bachmann’s reckless behavior is an abuse of her sensitive position on the committee, a threat to our national security, and an discredit her office and to our great nation ….I think the time has come for her to be removed from Congress once and for all.”
Graves’ statement sounds awfully similar to PFAW’s statement. That’s proof he isn’t the new Democrat he’s said he is.
When he left office in January, 2009, lots of Republicans were rightfully upset with President Bush. Still, it’s important that Republicans learn from President Bush’s re-election campaign of 2004.
Just to give a little historical perspective, I started blogging after the election in November, 2004. In September, 2004, President Bush became the first sitting president to visit St. Cloud. I joined with 15,000 of my closest friends that day at Dick Putz Field.
President Bush’s speech had people jazzed. Mostly, it got them jazzed because it was a substantive speech. That morning, President Bush talked about how his tax cuts pulled us out of a post-9/11 recession. He explained that staying on the offensive against the terrorists meant that we fought them in their sanctuaries rather than fighting them here in the United States. He talked about the importance of appointing strict constructionist judges.
He didn’t get into the weeds on policies but it gave activists a reason to fight for him and volunteer for a massive GOTV operation.
The point is that Mitt Romney, I think, would win if he gave the people substance in each stump speech. This isn’t just about resumes. If we know anything about this election, it’s that we know people are thirsting for ideas and solutions.
That’s why Mitt’s polling shot up when he picked Paul Ryan. Ryan immediately launched into substantive critiques of President Obama’s agenda. He made the case for reforming Medicare in easy-to-understand terms. GOP enthusiasm reached its apex.
Mitt Romney needs to hit the same themes day after day, opportunity after opportunity, whether that’s on Cavuto or Hannity or The View or out on the stump. Forcing the media to cover his agenda would work wonders for Mitt.
Mitt should include the EPA’s shutting down coal-fired power plants while preventing new natural gas opportunities in Ohio and other Rust Belt states. He should highlight this administration’s foreign policy failures, then use that as a launching pad for telling people how he’d be a better ally to Israel and how he’d go after terrorists in Iran, Yemen and Benghazi. He should talk about the need for repealing the Affordable Care Act. Finally, he should talk about being the president that will usher in the next great domestic energy boom in our nation’s history.
Billy Joel wrote a song that’s an odd fit for this. Here’s that song:
Here’s the specific part that Romney needs to excel at:
Tell her about it Tell her everything you feel Give her every reason To accept that you’re for real
The lesson Mitt needs to learn is that he’s got to give independents a reason to vote for him. The activists are fine with voting against President Obama. To win independents, though, he’ll need to give them something substantive to win them over.
Telling independents specifically what he’ll do to lower gas prices, create jobs and make them safe from terrorists must be Job One for Mitt Romney every day he’s campaigning. There’s no alternative.
Chuck Samuelson, the executive director of the ACLU-MN, is predicting lots of lawsuits being brought in federal court if Minnesotans approve the Photo ID constitutional amendment:
Chuck Samuelson, executive director of the American Civil Liberties Union of Minnesota, said he thinks there could still be a federal lawsuit challenging the constitutionality of Minnesota’s voter ID amendment once an election is held under the new requirements and once a voter gets turned away.
Mr. Samuelson’s explanation of the SCOTUS ruling in the Crawford v. Marion County Election Board is tortured:
“Their argument in the Indiana case was quite simple: ‘If you want to sue, bring us somebody who’s damaged, who’s been injured by this. They can sue. But if you haven’t been injured by this bill, you can’t sue,’” Samuelson said. “That’s the federal position in the Crawford case. So, that’s going to require the election to be held and somebody to be disenfranchised.”
Actually, that isn’t the standard set, though it’s close. Retired Justice John Paul Stevens, in his majority opinion, said that states have a compelling reason for Photo ID because they have the right to protect election integrity.
In the original testimony in District Court, Judge Barker ruled that the Democratic Party of Indiana hadn’t proven that anyone would be unable to get a state-issued photo ID.
That means the burden for the ACLU-MN to overturn Crawford v. Marion County Election Board is to prove that a person isn’t able to get a photo ID. That means proving the DMV was unwilling to supply photographic identification.
The litigant would have to show that they tried obtaining photographic identification and had their application rejected. That isn’t likely to happen.
If Mr. Samuelson wants to file a lawsuit, that’s his right. It’s just that he should prepare to lose. That’s because it’s almost impossible to not get a photo ID.
It’s time to dispel the myth that photo ID disenfranchises legal voters. A lawsuit in federal court will settle this.
Chip Cravaack is fighting the EPA. Based on the information in this statement, it’s likely that he’ll win:
On August 21, 2012, the D.C. Circuit for the U.S. Court of Appeals struck down a sixth overreaching EPA rule, writing that “…Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control.”
Here’s why that information is important:
Today, the Cravaack for Congress Campaign issued a statement regarding the continued assault on Minnesota mining jobs by the Environmental Protection Agency (EPA), in which the Agency proposes a rejection of the Minnesota State Implementation Plan put forward by the Minnesota Pollution Control Agency (MPCA) for upgrading taconite facilities.
The rule, which imposes an unrealistic timeline for compliance, would threaten Minnesota’s mining industry and the over 40,000 residents who depend on the mining industry for their livelihood.
“The silence from the DFL and Mr. Nolan on this issue has been deafening, and without surprise. On August 13, two days before the EPA’s rule was announced, Twin Cities–based Friends of the Boundary Waters Wilderness publically opposed the state plan and mining jobs in Minnesota,” said Michael Bars, Cravaack’s Press Secretary.
This isn’t about whether mining should be regulated. It’s about whether the MPCA’s regulations should be applied, especially considering the fact that this doesn’t affect anyone outside of Minnesota.
The DC Circuit Court of Appeals, the next most powerful court behind the Supreme Court, has issued its ruling.
Rick Nolan is losing the mining vote bigtime because he’s too tied with militant environmentalist organizations like Friends of the Boundary Waters Wilderness.
Nolan isn’t pro-mining because the militant environmentalists won’t let him be pro-mining.
Earlier this afternoon, the Minnesota Supreme Court ruled that Secretary of State Mark Ritchie doesn’t have the authority to change the title of the proposed constitutional amendments. They also ruled against “liberal-leaning groups” who sought to keep the proposed Photo ID ballot question off the ballot:
ST. PAUL, Minn. – The Minnesota Supreme Court has thrown out ballot title changes submitted by Secretary of State Mark Ritchie for two constitutional amendments voters will address this fall.
The high court on Monday rejected the titles written by Ritchie for the photo ID amendment and another amendment that would ban gay marriage in the state.
Republicans had argued that Ritchie overstepped his authority and was trying to influence voters to reject both amendments.
In a separate decision, justices also shot down a lawsuit from liberal-leaning groups who argued that lawmakers had failed to give voters the full scope of the changes that would result from the photo ID amendment.
These are stinging defeats to Secretary Ritchie, Common Cause, the ACLU-MN and the League of Women Voters-MN. The Minnesota Supreme Court ruled that the remedy sought by the ACLU-MN and the LWV-MN wasn’t warranted:
The court majority wrote that the photo ID ballot question “is not so unreasonable and misleading” that it should be taken off the ballot. The justices said striking the question from the ballot would have been “unprecedented relief” and that the voters will be “the sole judge of the wisdom of such matters.”
The Supreme Court’s ruling diplomatically says that the ACLU-MN, the LWV-MN and Common Cause tried to use the courts because they couldn’t win at the ballot box. The Supreme Court essentially said that the legislature has the authority to pass ballot questions and that citizens have the right to vote yes or no on the proposed constitutional amendments.
Ritchie changed the title for the marriage ban from “Recognition of Marriage Solely Between One Man and One Woman” to “Limiting the Status of Marriage to Opposite Sex Couples.”
He rewrote the photo ID title from “Photo Identification Required for Voting” to “Changes to In-Person & Absentee Voting & Voter Registration; Provisional Ballots.”
Citing its own precedent, the court found that when the Legislature includes its own title for ballot questions, then it goes beyond the authority of the secretary of state to replace it. The majority opinion said the secretary of state has “no constitutional authority over the form and manner of proposed constitutional amendments,” and directly ordered Ritchie to restore the original wording as set by the Legislature.
Secretary Ritchie intended to influence the outcome of a constitutional amendment based on his political preferences. That’s unacceptable because he’s a constitutional officer, not an elected politician.
That’s why Secretary Ritchie should be impeached.
Secretary Ritchie’s disdain for upholding the Constitution is showing. His attempt to confuse voters is a political act that the Constitution doesn’t allow and that Minnesota voters can’t tolerate. He’s a political hack who’s attempting to give himself extraconstitutional responsibilities.
With SCOTUS apparently heading towards striking down at least part of the PPACA, Democrats have already been testing trial balloon defenses. One of their arguments will be that the Roberts Court is an activist court, the type of thing conservatives railed against for years.
I won’t say that you should ignore the Left’s arguments. I’m recommending that you smash their arguments and ridicule them for making intellectually flimsy arguments.
The Left’s intellectual laziness started with their getting their way in the Wickard v. Filburn ruling. Wickard v. Filburn is constitutionally tortured:
A farmer, Roscoe Filburn, was growing wheat for on-farm consumption. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.
The Supreme Court interpreted the United States Constitution’s Commerce Clause under Article 1 Section 8, which permits the United States Congress “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”. The Court decided that Filburn’s wheat growing activities reduced the amount of wheat he would buy for chicken feed on the open market, and because wheat was traded nationally, Filburn’s production of more wheat than he was allotted was affecting interstate commerce. Thus, Filburn’s production could be regulated by the federal government.
That opened the floodgates for SCOTUS to rapidly and incorrectly expand the federal government’s authority beyond its constitutional boundaries.
The Commerce Clause was codified into the Constitution to give the federal government the authority to prevent interstate trade wars. PERIOD. It wasn’t intended to give Congress a quasi-constitutional rationalization for doing whatever it wanted.
The Commerce Clause is now used by progressives in both parties to justify rationalize major expansions of federal authority. The Founding Fathers envisioned a federal government with enumerated responsibilities and the authority to do what only the federal government needed to do.
That’s why they put the Ninth and Tenth amendments in the Bill of Rights.
What the Left is disparaging as judicial activism is nothing more than the SCOTUS using the Constitution as the basis for their ruling. That isn’t what past courts have done but it’s the right way for determining whether legislation is constitutional.
That said, if that’s what’s happening, it’d mark a major shift in how cases are ruled on. Some might rightly argue that it’s a revolutionary shift in how the courts rule on things.
During Chief Justice John Roberts’ confirmation hearings, Sen. Dick Durbin asked him what assurances Durbin could get that a Chief Justice Roberts would “side with the little guy” in his rulings. Roberts’ reply certainly left them apoplectic.
Roberts replied that the senators could rest assured that “every time that the Constitution is on the little guy’s side,” he’d rule for the little guy.
Democrats didn’t like that reply but it’s a reply that the vast majority of Americans would wholeheartedly agree with.
While it’d be foolish to argue that basing opinions on precedents isn’t worthwhile, it isn’t foolish to argue that badly thought through precedents are worthless.
Nobody questions the fact that Rudy Giuliani is pro-choice. Still, he’s argued that Roe v. Wade isn’t SCOTUS’s best work from a constitutional. Rudy’s argued that the US Constitution doesn’t give the federal government the authority to rule on what he sees as a states’ rights issue.
To be fair, Democrats are struggling to cope with what’s possibly a brave new world for them. They’ve relied on SCOTUS to give them their biggest political victories.
Hypothetically speaking, telling Democrats that they’ll have to earn their legislative victories through the legislative branch in cooperation with the executive branch is a shock to the Democrats’ nervous system.
Hopefully, SCOTUS’ ruling on the PPACA will usher in a new era of relying on the Constitution for their rulings rather than the justices substituting their policy beliefs for the elected branches of government’s policies.
The first thing I thought about this FT article is that it must’ve been written by this administration. Here’s what tipped me off that this was a spin job, not serious journalism:
When John Roberts was being confirmed as chief justice of the Supreme Court in 2005, he famously said that the nine judges on the highest US court should be like baseball umpires, whose job it is “to call balls and strikes and not [to] pitch or bat”.
But almost seven years later, Mr Roberts has presided over a bench that has issued an increasing number of 5-4 decisions, a trend that has fuelled Americans’ suspicions that the court is becoming ever-more political and that has exacerbated the decline in its public standing.
Those perceptions could be heightened this week, when the Supreme Court issues its much-anticipated ruling on whether President Barack Obama’s 2010 healthcare reforms were constitutional.
The American people hate the PPACA. That’s why they want it repealed. The numbers haven’t moved more than a point or two since the bill’s signing.
If SCOTUS rules that the entire bill is unconstitutional, the first thing you’ll hear from families and businesses alike will be a huge sigh of relief. The next sound you’ll hear will be loud applause because one of the most ill-advised pieces of legislation in history will be dispatched into oblivion.
The only people doing the handwringing thing will come be the professional worriers of the political class. The other 60% of people willl rejoice that the bill is dead.
This sounds like BS from the political class, too:
At the heart of the healthcare case is how the justices view the commerce clause, one of the most widely debated parts of the constitution, and one that has only grown more contentious as the public has become more concerned about the scope of federal government.
At the heart of this case is whether the federal government is able to tell people that choosing to not get involved in commerce is an act of commerce. It isn’t.
Also at the heart of this case is whether there is a limit on the Commerce Clause. If there isn’t, then Katie bar the door. The floodgates will open. Bad legislation will be justified by citing the Commerce Clause.
If it’s ruled that there isn’t a limit on the Commerce Clause, the TEA Party uprising of 2010 will seem mild compared with what will happen. Years ago, George Will wrote “When the American people want something badly enough and scream loudly enough long enough, sooner or later, the leaders will follow.” Amen to that, Brother Will.
As with Bush v Gore and Citizens United, the healthcare ruling could have a substantial impact on the direction of a US election. To strike down the law would give Republicans a legal victory to tout as they persist in criticising the Obama administration’s “overreach”.
But it could also infuriate and energise the liberal Democratic base that has become increasingly disillusioned with President Barack Obama during the last three and a half years, and which might not otherwise vote in large numbers again this year.
Support for overturning the PPACA hovers in the mid-50′s percentage-wise. That’s all Republicans and a majority of independents. If Wisconsin taught us anything, and it did, it’s that pro-growth conservatives do well when the Democrats’ base is energized.
I remember hearing Juan Williams talking on Special Report when the first protests started in Wisconsin. He talked about the enthusiasm gap had finally disappeared. He talked about how this should worry Scott Walker.
Juan Williams was right. The enthusiasm gap had disappeared. With that gap gone, though, a new gap was created. That new gap might be called the disgusting behavior gap. When Katherine Windels allegedly sent Sen. Scott Fitzgerald a death threat, people recoiled with disgust.
The bottom line is that independents recoil with disgust when progressives show their true nature.
Conservatives have nothing to fear if SCOTUS overturns the PPACA. Rather, they’ll have plenty to cheer about if it’s overturned.
Yesterday, Gov. Dayton gave up the fight to unionize child care small businesses:
ST. PAUL, MN (AP) – Minnesota Gov. Mark Dayton says he won’t fight a court ruling that blocked a unionization vote he called for home-based child care workers.
Dayton said Tuesday that he disagrees with the April decision but opted not to appeal it. A Ramsey County judge said the Democratic governor had overstepped his bounds by calling the election via an executive order rather than going through the Legislature.
The development further stalls a collective bargaining push by unions trying to organize child care providers. The election was supposed to take place in December, but a judge first halted balloting and later quashed the Dayton order altogether.
President Lisa Thompson of AFSCME Child Care Providers Together says Dayton “respects our democratic right to decide for ourselves whether or not we want a union.”
First things first. Enough with the euphemisms. The people that AFSCME and the SEIU wanted to force unionization onto aren’t “home-based child care workers.” They’re small businesses delivering child care services.
Next, AFSCME CCPT President Thompson is lying through her teeth when she says that Gov. Dayton “respects our democratic right to decide for ourselves whether or not we want a union.” Gov. Dayton doesn’t respect people’s rights to unionize. That’s why he attempted to only let 4,300 of the 11,000 licensed child care small businesses vote. He tried rigging the vote.
Gov. Dayton’s admission was essentially moot since child care small businesses filed a federal lawsuit challenging the unions’ ability to tell small businesses who will be their lobbyists:
The federal lawsuit will contend the union effort authorized by Governor Dayton’s executive order on November 15, 2011 violates the providers’ first amendment right of free political expression and association. The National Right to Work Foundation, a nonprofit legal aid association based in Washington, DC, has offered free legal assistance to child care providers who are battling what they view as compulsory unionization.
“The allegation is going to be that it’s unconstitutional, that the First Amendment guarantees everyone the right to choose with whom they associate to petition government and that the government can’t choose who’s going to represent providers for lobbying the state,” said Bill Messenger, an attorney with the National Right to Work Foundation who’s working on the case.
This case is essentially finished. Here’s the text of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In short, small businesses can’t be forced to hire Company A or Union B or anyone without their consent. If ABC Child Care wants to lobby the legislature on their own, that’s their right. Congress can’t infringe upon that right. Gov. Dayton can’t either. The unions can’t tell these small businesses that they have to associate with the unions, either.
The First Amendment says that individuals or a collection of individuals can petition their government and seek resolution of their complaints in the way they determine best meets their needs.