Archive for the ‘The Constitution’ Category
Rebecca Otto has been threatening to file a lawsuit against a bill signed into law by Gov. Dayton. Apparently, Ms. Otto isn’t too bright in terms of the law and Minnesota’s Constitution. Article V of Minnesota’s Constitution talks about the executive branch of state government. Specifically, it says “The executive department consists of a governor, lieutenant governor, secretary of state, auditor, and attorney general, who shall be chosen by the electors of the state. The governor and lieutenant governor shall be chosen jointly by a single vote applying to both offices in a manner prescribed by law.”
Nowhere in Article V, Section 1 does it outline the duties of the State Auditor. That’s properly left up to the legislature and governor to determine through state statutes. If the court sides with Ms. Otto, it will be clear proof that the DFL has turned them into a super-legislative body.
Rep. Sarah Anderson, the chair of the House State Government Finance Committee, issued a statement, saying “Just one day after the nonpartisan Office of the Legislative Auditor’s report was released on county audits which definitively stated that it is within the legislature’s power to define the duties and authority of the Office of the State Auditor, State Auditor Rebecca Otto has decided to waste taxpayer dollars to file a frivolous lawsuit against the State of Minnesota and a select group of counties,” said Rep. Anderson. “The legislature acted in a bipartisan manner last session to expand the options counties have for their audits to save local governments and taxpayers money, as well as expedite the audit process. This lawsuit has no merit, and I am disappointed it will come at the expense of hardworking Minnesota taxpayers.”
This is important:
On February 3, 2016, the nonpartisan Office of the Legislative Auditor released their report on county audits done by the OSA. Here are several key highlights from that report:
The Minnesota State Legislature has always defined the duties and authority of the State Auditor
Jim Nobles is a serious man. When he says that the legislature “has always defined the duties of the State Auditor”, it’s because he’s thoroughly researched the Constitution and state statutes. From a legal standpoint, Nobles’ research is probably air tight. Then there’s this:
- 34 percent of counties stated they were not satisfied with the cost of OSA audits
- The 2015 law change allows for price competition while still giving the OSA significant authority to continue to ensure that all audits meet certain standards and to hold counties accountable in how they spend public dollars
- 32 percent of counties said that audits done by OSA were not timely, and many expressed frustrations that the reports came too late to be useful in saving taxpayer dollars for their annual budget process
That’s poison from a political standpoint. It just isn’t surprising.
Technorati: Rebecca Otto, Constitutional Office, Executive Branch, Minnesota Constitution, Mark Dayton, DFL, Sarah Anderson, House State Government Finance Committee, MNGOP, Jim Nobles, Office of Legislative Auditor, Audits, Counties
Apparently, Gov. Dayton thinks that legislatures can pass laws that override the U.S. Constitution. This AP article says that Gov. Dayton “is urging legislators to ban gun sales to people on terrorism watch lists.” Notice that there’s been a subtle shift from Hillary’s speech about the nexus between terrorism and the national no-fly list.
The article continues, saying that Gov. Dayton “concluded he doesn’t have the authority to restrict those sales on his own.” He’s right. He doesn’t have that authority. Instead, he wants “the Legislature to pass such a law”, adding that “people who aren’t allowed to board airplanes shouldn’t be able to purchase guns.”
That law would never be enforced because the judiciary would halt enforcement in a New York minute. One of the people on the no-fly list was the late Massachusetts Sen. Ted Kennedy. In a speech on the Senate floor, Sen. Dan Cotton, (R-AR), said that Sen. Kennedy “was on the list and couldn’t get off for weeks, having his flights disrupted time after time.”
If Minnesota passed a law that prevented people on the no-fly list from buying guns, they’d pass legislation that violates a person’s civil rights. That’s unacceptable because it’s unconstitutional.
Gov. Dayton swore an oath to uphold the Constitution. Stripping a person of their constitutional rights without due process is a direct violation of that oath.
Back in August, Donald Trump criticized Erick Erickson for banning him from the RedState Gathering for Trump’s disgusting misogynistic statements about Megyn Kelly. It’s December and Erickson is suddenly he’s Trump’s biggest fan.
Erickson’s ‘proof’ that Trump is brilliant is that “Trump demanded we bar any Muslims from entering this country and bar any American citizen who is Muslim from re-entering the United States.” Erickson then said that we should set “aside the merits of what amounts to at least, in part, an unconstitutional position.”
First, let’s not set aside the Constitution to judge the merits of Trump’s political genius. Next, let’s see Erickson’s ‘logic’:
Donald Trump not only got himself to the right of all the other candidates, but also got every single one of them save for Sen. Ted Cruz, (R-TX), to align themselves with Barack Obama.
That’s chilling thinking, if it can be called that. Last night, when Carly Fiorina said that Americans wouldn’t “set aside the Constitution” just because Mr. Trump says so, Erickson apparently thinks that that’s aligning with President Obama. Here’s a little hint for Erickson. That’s putting yourself in a position of strength.
Further, Trump looks like a third-world dictator, not a presidential candidate. If this is a negotiation and I’m one of the negotiators, I’d start by telling Mr. Trump that his view of the Constitution is disgusting and that it’s time he stopped ignoring the foundation that the United States was built on. Then I’d tell him that his anti-constitutional policy is a nonstarter. Next, I’d tell Mr. Trump that his bombastic rant sounds suspiciously similar to President Obama’s disgust with the Constitution.
Once I’d demolished Trump’s conservative credibility, then I’d tell him that protecting the United States while obeying the Constitution is possible.
Idiots like Erickson are Trump enablers. Their message essentially is ‘Who cares if Trump ignores the Constitution like Obama? Who cares that his ideas don’t work?’ If ignoring the law and pushing policies that don’t work are all that’s required to make the GOP base happy, then they should be thrilled with President Obama.
Donald Trump’s love of eminent domain abuse isn’t sitting well with constitutional conservatives. Recently, Carly Fiorina explained why Mr. Trump’s love of eminent domain abuse runs contrary to limited government conservatism when she said “I think Donald Trump, among others, has engaged in crony capitalism in its most raw and abusive form. When commercial interests get together with government to take away private property for their own commercial interests, that’s a big problem. And I think I join so many conservatives in saying that eminent domain has been abused. And it has been abused by the collusion between governments eager for revenue and businesses eager for competitive advantage. So I find the Kelo case—if ever there was a case for judicial engagement instead of judicial restraint, it’s this set of issues.”
There’s nothing pro-limited government about developers who don’t respect private property rights buying off city officials in their effort to steal land from a private property owner. That’s the definition of crony capitalism:
Crony capitalism is a term describing an economy in which success in business depends on close relationships between business people and government officials. It may be exhibited by favoritism in the distribution of legal permits, government grants, special tax breaks, or other forms of state interventionism. Crony capitalism is believed to arise when business cronyism and related self-serving behavior by businesses or businesspeople spills over into politics and government, or when self-serving friendships and family ties between businessmen and the government influence the economy and society to the extent that it corrupts public-serving economic and political ideals.
Donald Trump isn’t a constitutionalist. He definitely isn’t a limited government conservative. Finally, it’s apparent that he thinks that he should get anything he wants even if that something is owned by someone else.
That’s the definition of evil. If we want an evil president, we can just keep the corrupt SOB that’s currently in the White House or elect a corrupt career politician that’s running as a Democrat. The day that the Republicans nominate another corrupt politician is the day I leave the GOP.
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
It’s a good thing for President Obama that Charles C.W. Cooke doesn’t have a megaphone as big as the president’s. If he did, Mr. Cooke would’ve already have given the constitutional law professor the beating in mock court that he deserves. This post totally obliterates President Obama’s gun control arguments.
Cooke quotes President Obama from the president’s press conference as saying “We know other countries in response to one mass shooting have been able to craft laws that almost eliminate mass shootings. Friends of ours, allies of ours, Great Britain, Australia, countries like ours. So we know there are ways to prevent it.” Shortly thereafter, Cooke demolishes that statement, saying that “Contrary to the president’s implications, Britain and Australia are not “countries like ours” when it comes to the right to keep and bear arms; they are completely, utterly, extraordinarily different. When the British government banned handguns in 1997, there were fewer than half a million in circulation.”
The question President Obama doesn’t want to get confronted with is how he figures nations that confiscate guns are like ours. The good news for President Obama is that the Praetorian Guard media will do its utmost to protect him from pesky questions like that. The bad news is that people in the heartland know the difference between nations that outright confiscate guns and the United States. That’s because the difference is quite dramatic.
This exchange is dramatic:
Frankly, Mr. Cooke let Mark Halperin paint himself into a corner. Once that’d happened, the debate was over.
Saying that Donald Trump isn’t a constitutional conservative is understatement. Calling Trump a despicable man who’s only interested in himself is totally justifiable, especially in light of this video:
DONALD TRUMP: In life, you have a thing called condemnation and cities have a right to condemn for the good of the city, whether it’s New York, whether it’s Los Angeles, whether it’s any other place. Atlantic City is one of those places and it’s got the right to condemn.
DANA BERLINER: In the 1990s, Donald Trump was behind an outrageous case of eminent domain abuse. Vera Coking was an elderly widow who lived in her home alongside Atlantic City’s Boardwalk. She bought that home and Donald Trump wanted Vera’s home so he could build parking for his casino across the street.
TRUMP: Everyone coming into Atlantic City sees that property and it’s not fair to Atlantic City and the people. They’re staring at this terrible house instead of staring at beautiful fountains and beautiful other things that would be good.
JOHN STOSSEL: You’re bullying these people out…
TRUMP: Excuse me. That’s wrong. For you to use the word bully is very unfair. This is a government case. This is not a Donald Trump…
STOSSEL: Yes, it’s Donald Trump. It’s you and your cronies in government working together.
TRUMP: For you to call these people cronies is very unfair. You’re calling good public servants cronies.
BERLINER: An unaccountable state agency tried to condemn Vera Coking’s property and transfer it to Donald Trump. He convinced the government officials to use their eminent domain power to take Vera’s home. This was public power but it was used for private gain.
Eventually, a case like this made its way to the Supreme Court. We know it as Kelo v. New London. The Rehnquist Court sided with the developers. An entire neighborhood was demolished, supposedly to build a shopping mall. After the ruling, though, the development never happened. An entire neighborhood was destroyed for nothing. Here’s more to the Trump-Stossel fight:
STOSSEL: Basic to freedom is that if you own something, it’s yours. The government doesn’t just come and take it away…
TRUMP: Do you want to live in a city where you can’t build schools? Do you want to live in a city where you can’t build roads or highways or have access to hospitals? Condemnation is a necessary evil.
STOSSEL: But you’re not talking about a hospital. You’re talking about a building that a rich guy finds ugly.
This is proof that Trump is no more a constitutional conservative than Hillary Clinton.
What’s disgusting is the fact that otherwise level-headed Republicans are actually buying Trump’s schtick. They’re saying that he’s a fighter. They’re partially right. Trump can always be counted on to fight for the things that interest Trump. Trump’s hardline statements against illegal immigration are part of a charade that’s soon to be exposed. Trump is, putting it charitably, a temporary border hawk. That’ll become apparent when the opposition research on Trump shows how his properties were built with illegal immigrants.
Donald Trump is no more a conservative than Hillary is. In fact, Trump has contributed to her campaigns in the past. He’s also contributed to the Clinton Foundation.
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.
The last 2 nights, Megyn Kelly has featured Amherst University’s decision to expel a student after a woman accused him of rape. Here’s the video of Monday night’s segment:
There’s no excuse for what Amherst University did. First, the fact that a woman waited 2 years before ‘reporting’ a rape should’ve been a hint to Amherst that this case should be viewed with a healthy bit of skepticism. Second, after the alleged rape was reported, the female student’s texts were recovered from a third party. They showed that the female student did more than consent to having sex. The texts showed she initiated sexual contact. In fact, it went further than that. After having sex with the man she accused of raping her, she texted another male student and asked him to “entertain” her.
It’s disturbing is that Amherst didn’t reverse the male student’s ejection from Amherst after the texts were discovered. What’s more disturbing is that the accused student wasn’t allowed representation. Further, it was against US Department of Education rules to let that female student to be cross-examined by the male student’s attorney because it might be a traumatic experience for the accuser.
This unnamed male student has hired legal counsel. They’re likely to file a lawsuit against Amherst and the Department of Education for violating the student’s due process rights. If ever there was a slam dunk case, this is it. Amherst didn’t show any interest in the accused student’s constitutional rights. The accused student was stripped of his ability to defend himself. When exculpatory evidence was discovered and presented to Amherst, it was treated as if it didn’t exist.
This is the video of last night’s segment on the Amherst story:
That the US Department of Education put together these guidelines that leave students essentially defenseless against accusers is disgusting. Brit Hume is right. It’s an article of faith that there’s a culture of rape on college campuses. The studies that purport to show this epidemic have been thoroughly discredited. Another thing that’s disgusting is that the US Department of Education would implement a plan that ignores students’ constitutional rights. The DOE didn’t water down the accused students’ constitutional rights. The US DOE just threw these students’ constitutional rights out entirely.
Technorati: Amherst University, US Department of Education, Culture of Rape, Dear Colleague Letter, Due Process Rights, Rights of the Accused, Cross-Examination, Exculpatory Evidence, Brit Hume, Megyn Kelly
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.