Archive for the ‘Judiciary’ Category
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.
When Marilyn Mosby made her first public appearance on the Freddie Gray case, she made a huge mistake, saying that she’d “seek justice for Freddie Gray.” That’s a major mistake because ‘Lady Justice’ wears a blindfold. There’s a reason for that. That’s because justice is determined by wherever the facts take investigators.
Ms. Mosby started with the belief that 6 Baltimore police officers were guilty of causing Freddie Gray’s death. Now that the autopsy’s been finished, Ms. Mosby wants to keep the autopsy’s results private:
Baltimore State’s Attorney Marilyn Mosby plans to seek a protective order that would block the release of Freddie Gray’s autopsy report and other “sensitive” documents as she prosecutes the six police officers involved in his arrest.
Mosby told The Baltimore Sun that prosecutors “have a duty to ensure a fair and impartial process for all parties involved” and “will not be baited into litigating this case through the media.”
But an attorney for one of the officers said the effort shows that “there is something in that autopsy report that they are trying to hide.” “Mrs. Mosby is the one who did an announcement discussing what she said the evidence was in a nationally televised speech,” said Ivan Bates, who represents Sgt. Alicia White. “Now that it is time to turn over the evidence, to ask for a protective order is beyond disingenuous.
“It’s as if she wants to do everything to make sure our clients do not get a fair trial.”
There’s no questioning whether Ms. Mosby is fighting dirty. She’s made public statements in front of the cameras virtually on a daily basis. It’s astonishing that Ms. Mosby is insisting that the information produced by a public employee shouldn’t be made available to people who are defending the accused. That’s almost Orwellian thinking.
While she’s shot her mouth off, she’s insisting that the defense shut up. That isn’t the pathway to a fair trial. Though I’m not a trial attorney, I can’t imagine what justification a judge might cite in upholding Ms. Mosby’s gag order. In the end, it’s hard to believe that the judge will reject the gag order and order Ms. Mosby to make the autopsy report available to the defense. It wouldn’t surprise me if the judge ruled that the defense had the right to conduct its own independent autopsy.
Finally, it wouldn’t surprise me if Ms. Mosby lost this high profile case. It couldn’t happen to a more deserving person.
Judge Andrew Hanen refused to lift his temporary hold on President Obama’s executive action, saying that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation.” Here are the arguments both sides are making:
The coalition of states leading the challenge filed its lawsuit to overturn Obama’s executive actions, which would prevent as many as 5 million people who are in the U.S. illegally from being deported. The states, led by Texas, argue that the action is unconstitutional and would force them to invest more in law enforcement, health care and education. The injunction is intended to stall Obama’s actions while the lawsuit progresses through the courts.
Justice Department attorneys argue that keeping the temporary hold harms “the interests of the public and of third parties who will be deprived of significant law enforcement and humanitarian benefits of prompt implementation” of the president’s immigration action.
First, it isn’t likely that the Obama administration will win this fight. If I were putting out odds, I’d say the administration’s odds of winning was less than 15%. That’s enough to stop the DOJ’s request dead in its tracks. Second, Judge Hanen’s statement that the DOJ hasn’t “shown any credible reason for why this Directive necessitates immediate implementation” is a rather chilly statement. (Ed Morrissey’s post explains why the relationship between Judge Hanen and the DOJ is frosty.)
Hanen issued his initial injunction believing that neither of those orders had taken effect. About a month later, the Justice Department confirmed that more than 108,000 people had already received three-year reprieves from deportation and work permits, but DOJ attorneys insisted the moves were made under 2012 guidelines that weren’t blocked by the injunction. The DOJ apologized for any confusion, but Hanen seemed unconvinced during a hearing last month and threatened to sanction the attorneys.
He wrote Tuesday that while the federal government had been “misleading” on the subject, he would not immediately apply sanctions against the government, saying to do so would not be “in the interests of justice or in the best interest of this country” because the issue was of national importance and the outcome will affect millions of people.
“The parties’ arguments should be decided on their relative merits according to the law, not clouded by outside allegations that may or may not bear on the ultimate issues in this lawsuit,” Hanen wrote.
I’m not a lawyer but I can’t imagine it’s a good thing for a judge to say that “the federal government had been ‘misleading'” the judge. I’ve got to think that the appellate court won’t be impressed with the DOJ’s actions.
I’d be very surprised if the Supreme Court doesn’t a) hear this case and b) rule against the administration.
Judge Doty’s 16 page ruling in the NFLPA’s lawsuit on Adrian Peterson’s behalf against the NFL contains some bombshell statements. This part of Judge Doty’s ruling is particularly stinging:
Moreover, Henderson’s conclusion that the New Policy is consistent with the previous Policy is contradicted by the Commissioner’s own statements in which he acknowledged that the New Policy included “changes” to the Policy. See, e.g., id. Ex. 65, at 1 (“I made a mistake. I’m not satisfied with the process we went through, I’m not satisfied with the conclusions. And that’s why we came out last month and said: we’re going to make changes to our policies. We made changes to our discipline.”); see also id. Ex. 35, at 99:21-100:15.
At the heart of the NFL’s defense was that the Commissioner had great latitude in determining Adrian Peterson’s punishment.
Judge Doty’s ruling didn’t just criticize Commissioner Goodell. It criticized Henderson, too:
The NFLPA next argues that Henderson exceeded his authority by adjudicating the hypothetical question of whether Peterson’s discipline could be sustained under the previous Policy. The NFL responds that the NFLPA submitted that issue to Henderson. The record belies the NFL’s argument. The NFLPA submitted to Henderson “the pure legal issue” of whether the New Policy could be applied retroactively. NFLPA Ex. 122, 21:22-22:24; see also id. Ex. 20, at 4. Nothing in the record supports a finding that the NFLPA asked Henderson to determine whether the discipline imposed was consistent with the previous Policy.
In other words, Harold Henderson tried justifying his decision by saying that the NFLPA asked him to. That isn’t the only time where Judge Doty criticized the NFL’s arbitrator:
Henderson was an NFL executive for nearly two decades and apparently continues on in a part-time capacity, earning $2.5 million in compensation from the NFL since 2009.
This footnote was found at the bottom of Page 8 of Judge Doty’s ruling. This information, by itself, isn’t damning. The fact that Henderson’s ruling sounded like the NFL’s press release, coupled with his less-than-impartial ruling, however, all but state explicitly that Henderson was Commissioner’s self-appointed hatchet man against Adrian Peterson.
ProFootballTalk stated that the NFL hasn’t had a good year in the courts. That’s what happens when a tyrant thinks he has the authority to make the rules up as he goes. That’s what third world dictators get away with. High profile CEOs of major corporations don’t get away with that very often.
This NYTimes op-ed is long on accusations but short on constitutional logic. Here’s an example of that:
Judge Hanen said the costs were the result of the federal government’s “failure to secure the borders,” and he noted the millions of dollars that states spend to educate “each illegal alien child,” even though, as he knows, the Constitution already requires states to provide that education. He danced around the fundamental point, as the Supreme Court reiterated as recently as 2012, that setting immigration policy is the prerogative of the federal government, not the states.
Notice that the NYTimes tip-toed around the fact that Congress writes immigration laws and that a president only signs immigration bills he or she agrees with into law. The NYTimes didn’t take time to define what each branch’s role is in writing and implementing new laws.
That’s the procedure for all laws, not just immigration laws. Presumably, a constitutional law scholar like President Obama knows the drill.
This is typical liberal BS:
However the appellate courts come down on the case, Mr. Obama is finding himself once again dealing with a familiar sort of Republican intransigence. With his humane and realistic immigration policy, he is trying to tackle a huge and long-running national problem: what to do with more than 11 million undocumented people who are living, working and raising families here, when the government cannot possibly apprehend or deport all of them.
This is more proof that President Obama isn’t interested in negotiating with people who don’t reflexively agree with him. Notice that the NYTimes doesn’t criticize President Obama for being intransigent. That criticism is reserved exclusively for Republicans.
Notice that the NYTimes didn’t criticize President Obama for all the times President Obama deployed a my-way-or-the-highway mindset, starting with his meeting with Republicans about his stimulus bill. That’s when Republicans offered a number of improvements to the bill, only to be told by President Obama that “We won.” That’s intransigence personified.
Now Judge Hanen has reminded President Obama that presidents aren’t emperors. President Obama’s reaction to that reminder is to lash out, albeit in a calm tone of voice, that Judge Hanen’s ruling is standing in his way.
The Founding Fathers built the Constitution the way that they did to guarantee that both political branches needed to negotiate with each other. That’s the last thing President Obama wants. President Obama gave an entire series of speeches built around the refrain that “We can’t wait.” Thankfully, the judiciary didn’t let this president do everything he and his Democratic Party allies wanted to do.
Finally, this administration isn’t supposedly lawless. The Supreme Court has ruled unanimously against President Obama 13 straight times on issues of executive overreach. That’s proven lawlessness. That isn’t imagined lawlessness.
Sharyl Attkisson’s latest post highlights a disturbing pattern of behavior within the federal government:
After the appeal, the F.B.I. told me that its original claim (that it had no information about me) was a mistake and the agency promised to reprocess it. More time passed, and the F.B.I. sent me a few pages of cryptic material that didn’t include most of what I know exists (let alone the material of which I may not be aware).
I again told the F.B.I. that I was certain more information existed, including, for example, material from the F.B.I. background check conducted on me before I was granted a White House pass as a CBS News correspondent. Eventually, the F.B.I. notified me by letter that there was a lot of material it could send me, but I would have to agree, in advance, to pay for the costs of producing it and specify my preference between having it delivered via paper or on a CD. I answered yes, I would pay, and that I wanted the material on DVD.
I didn’t hear back from them.
Ms. Attkisson isn’t optimistic this will be resolved quickly:
It’s one of countless examples in the past decade of federal agencies thumbing their noses at Freedom of Information requests, whether filed by member of the public or news media. After all, there are no repercussions for their unlawful behavior. The information requests often fall into a bottomless pit and remain unanswered for months, even years, past their legal deadline. If and when they are answered, the responses are often incomplete, containing so many unsupported redactions and withholdings as to make them pointless.
Here’s a radical thought. Let’s have Congress write legislation that imposes a harsh penalty on the head of the noncompliant, secretive agency. Unresponsive agency management personnel should pay with their employment.
An agency’s failure to produce the information within 45 days should count as a first warning against that agency’s CEO. If the FOIA request isn’t filled in its entirety within 60 days, the agency chief should be notified that failure to comply will trigger an independent investigation into that agency by a special prosecutor. If the agency hasn’t turned over all documents requested by the citizen within 75 days, the special prosecutor will impanel a federal grand jury with the right to prosecute that agency’s chief for withholding that information.
The only charge available for that grand jury is obstruction, which would be a felony.
It’s time to tell the federal government that being unresponsive is unacceptable. The only way that’ll happen is if agency chiefs pay a price for their inaction.
This article shows that progressives’ definition of justice isn’t predicated on verifiable facts. It’s proof that Democrats’ definition of justice is mostly about perceptions and allegations.
The trouble is that the United States, for far longer than it has been a “nation of laws”, has been a nation of injustice. And in the absence of basic justice such laws can amount to little more than codified tyranny. When a white cop, Darren Wilson, shoots an unarmed black teenager, Michael Brown, dead and then is not indicted, the contradiction is glaring. For a world where it is not only legal for people to shoot you dead while you walk down the street, but where they can do so in the name of the law, is one in which some feel they have nothing to lose.
It’s offensive that this liberal idiot would attempt to portray Brown as “walk[ing] down the street.” Forensic evidence shows that Brown a) robbed a convenience store, b) beat up the store manager and c) attacked Officer Wilson in Wilson’s patrol car.
Saying that that’s the equivalent of walking down the street is insulting in its dishonesty.
It is through this chasm, between the official claim to an impartial legal system and the reality of endemic racial injustice, that Wilson made his escape, with the flames of Ferguson in hot pursuit. For Wilson was not exonerated. The grand jury decided there was not even “probable cause” to put him on trial. As the website FiveThirtyEight points out, this is very rare. The Bureau of Justice reveals that in 2010 US attorneys prosecuted 162,000 federal cases, and grand juries declined to return an indictment in just 11.
What isn’t said is that these types of cases rarely get to a grand jury. In most instances, the officer would’ve been cleared because Michael Brown attacked Officer Wilson. Forensic evidence showed Brown’s fingerprints and DNA on Officer Wilson’s gun. The only time that could’ve happened was when Brown attempted to attack Officer Wilson in Officer Wilson’s patrol car.
It’s time for progressives to stop throwing accusations around so recklessly.
This post about Richard Davenport’s termination of Coach Todd Hoffner highlights the timeline of Mankato State University, Mankato’s investigation that ultimately led to Coach Hoffner’s termination. This post will highlight the OLA’s report of what happened that triggered the investigation:
On August 10, 2012, Coach Hoffner asked a MSU, Mankato information technology staff person to examine his cell phone because it was not working properly. The staff person found a video recording of naked children on the phone and brought it to the attention of MSU, Mankato officials, who turned the cell phone over to the Mankato police. Coach Hoffner was arrested at his home on August 21, 2012. The following day, the Blue Earth County Attorney filed charges against Todd Hoffner alleging that the images of the children were pornographic and criminal.
After reviewing the images, other evidence, and considering the applicable laws, on November 30, 2012, a Blue Earth County District Court Judge dismissed the criminal charges for lack of “probable cause.” In her order, the judge noted that the children in the video were Todd Hoffner’s children, who asked their father to record a “performance” after they emerged from a bath. The judge went on to say
that the context of the video showed that the “children’s performance was not intended to be erotic or pornographic in nature.” She also noted that the children acted silly, playful, and age appropriate.
Despite the fact that charges were dismissed by a Blue Earth County district court judge, President Davenport proceeded with his investigation.
It’s worth highlighting that the judge ruled that “the children acted silly, playful and age appropriate.”
Here’s another situation that might put President Davenport into a delicate situation:
President Davenport also told us that he responded to the allegations against Coach Hoffner with the Pennsylvania State University (Penn State) football sex scandal in mind. In that case, a former Penn State assistant football coach, Jerry Sandusky, was accused of sexually abusing children for more than a decade. In addition, university officials were accused of failing to respond adequately when concerns about the coach were brought to their attention.
The Penn State situation was dramatically different from what happened in Mankato. Here’s one of the report’s footnotes:
In June 2012, former Pennsylvania State University (Penn State) assistant football coach Jerry Sandusky was found guilty of 45 counts of child sexual abuse and, in October 2012, he was sentenced to at least 30 years in prison. The National Collegiate Athletic Association (NCAA) imposed severe sanctions against the Penn State football program, including: a $60 million fine to create an endowment to prevent child sexual abuse and help child abuse victims; barring Penn State’s football program from post-season play for four years; and vacating the team’s wins from 1998-2011. In addition, former Penn State officials, President Graham Spanier, Senior VP for Finance and Business Gary Schultz, and Athletic Director Tim Curley were indicted for endangering the welfare of children, conspiracy, obstruction of justice, and perjury. They are awaiting trial.
In the Penn State case, senior members of the administration, including Penn State’s president were accused of lying to investigators and for trying to hide Jerry Sandusky’s actions. Further, they “were indicted “for endangering the welfare of children…”
The underlying allegations included this:
Victims also commonly reported that Sandusky would place his hand on their thighs or inside the waistband of their underpants. Two recounted oral sex with Sandusky, sometimes culminating in his ejaculation.
That’s totally different than the situation at Mankato. First, President Davenport didn’t attempt to cover anything up. Second, he wasn’t accused of lying to investigators. Those things alone differentiate this situation from the Penn State scandal.
I understand that administrators nationwide worried about being accused of covering up a pervert’s lengthy history of child sex abuse. That’s appropriate and justified. What isn’t appropriate or justified is conflating everything into another Penn State.