Free Markets, Free People

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UAVs, extrajudicial and targeted killings

If you haven’t wondered about the morality of this or its legality, I’d be surprised.

It’s easy to overlook, after all it’s the “good guys” doing it, right?

While I usually ignore most of what the UN says, I think there’s some substance here:

The US policy of using aerial drones to carry out targeted killings presents a major challenge to the system of international law that has endured since the second world war, a United Nations investigator has said.

Christof Heyns, the UN special rapporteur on extrajudicial killings, summary or arbitrary executions, told a conference in Geneva that President Obama’s attacks in Pakistan, Yemen and elsewhere, carried out by the CIA, would encourage other states to flout long-established human rights standards.

In his strongest critique so far of drone strikes, Heyns suggested some may even constitute "war crimes". His comments come amid rising international unease over the surge in killings by remotely piloted unmanned aerial vehicles (UAVs).

A lot of times I apply the “what if some other country was doing this to the US” standard to things we do.  Take Fast and Furious.  What if Mexico had run that operation on us?  We’d be “furious”.  We’d condemn them roundly.  We’d be seeking redress.  We’d be initiating some sort of action.

Now given, in certain of the cases with UAV’s, governments of countries effected are cooperating and, in some cases, even giving permission.  But that isn’t always the case as we well know.  In fact, many times this country just executes an extra-judicial and/or targeted killing without the knowledge or consent of the government of the state in which it takes place.

As you might expect, there’s a lot of death of innocents that is euphemistically waved away as “collateral damage”.

Certainly the use of UAVs as a military asset that can both gather intel and be used to attack legitimate enemies makes sense.  But we’re into a very gray moral area with “extra-judicial” and targeted killings in other countries. 

The irony, of course, is the administration that arrogantly condemned its predecessor for secret jails and military tribunals and insisted that the judicial system be used in the war on terror instead now acts as judge, jury and executioner in these UAV killings. 

I just wondered what we’d think if Pakistan began flying UAVs into the US and knocking off politicians who supported UAV strikes in Pakistan, calling them “war criminals” and all?

Think we’d find that outrageous, a violation of our sovereignty and international law and be whining to the UN about what was being done by that country (not to mention beating the war drums here at home)?

Yeah, me too.

Would we have a legal or moral leg to stand on?

~McQ

Twitter: @McQandO

With the options available, why did Obama choose to invoke executive privilege?

That, at least to me, is the pregnant question.  He had a number of other options but  4 months from a critical election, chose the most controversial and potentially damaging one.

Why?

Let’s begin with a quote from  a former White House counsel from a Powerline post:

Even with his fawning press, [President Obama] will pay a price for this one. He knows this, meaning that the documents now to be withheld must be dynamite. They have to show either that Holder knew what was going on with Fast and Furious and approved it, or that he directly committed perjury in his Congressional testimony, or both. I just can’t see any other explanation for such a risky move.

Wasn’t the Washington Post just covering big time the 40th anniversary of Watergate? I wonder how much coverage this one will get.

That’s the result of the move – speculation that the documents being withheld point to perjury by Holder or the President, or both.

So let’s break this down a bit.  If it was all about Holder, why would the president risk this sort of a controversial move this close to an election.  It’s not like he’s never thrown anyone under the bus.  In fact James Carville is on record advising Obama to dump Holder.

Obama had the option, then, of letting Holder face contempt charges (not much happens as we’ve seen in the past, to those who are served with contempt of Congress charges) and drag out the document release until after the election.

With the election season gearing up, it is likely that while the controversy would have been an issue, it wouldn’t have been a major issue.   Now it certainly is.

He could have asked Holder to resign.  He could have then used the opportunity to appear as a statesman, a leader and bi-partisan all in one fell swoop.  Depending on how he handled that it could actually have been a positive for him heading into an election.  In the meantime, an acting AG could continue to delay on providing documents.

But he did neither of those things.  For some unknown reason (at least to this point) he chose to do the least likely and most politically damaging thing – invoke executive privilege.  As the lawyer quoted has said, those documents must be “dynamite” to have the president make this move.

And, unsaid by the lawyer is the speculation that the documents show the involvement of the White House to a degree that is damaging – apparently more damaging than the speculation and attention this move by the President has brought.

David Kopel at Volokh Conspiracy gives you a great history of the controversy.  As for the documents Kopel notes:

According to Attorney General Holder, the DOJ has 140,000 documents related to Fast & Furious. Fewer than 8,000 have been provided to Congress pursuant to subpoenas. The contempt vote has been narrowed to 1,300 documents. In refusing to comply with the House subpoenas, the DOJ has refused to create a privilege log–which would identify withheld documents, and the legal reason for their being withheld.

Matthew Boyle at the DC caller points out that Holder has retracted two previous statements he made to Congress where he gave them inaccurate information in an attempt to blame previous AGs or administrations.  It seems that’s a standard operating procedure with all parts of this administration.  So Holder is left holding the bag all by himself on this one, or so it seemed, at least, to the point that executive privilege was invoked.

That brings us to these 4 point by Todd Gaziano at the Heritage Foundation about the use of executive privilege:

First, the Supreme Court in United States v. Nixon (1974) held that executive privilege cannot be invoked at all if the purpose is to shield wrongdoing. The courts held that Nixon’s purported invocation of executive privilege was illegitimate, in part, for that reason. There is reason to suspect that this might be the case in the Fast and Furious cover-up and stonewalling effort. Congress needs to get to the bottom of that question to prevent an illegal invocation of executive privilege and further abuses of power. That will require an index of the withheld documents and an explanation of why each of them is covered by executive privilege—and more.

Second, even the “deliberative process” species of executive privilege, which is reasonably broad, does not shield the ultimate decisions from congressional inquiry. Congress is entitled to at least some documents and other information that indicate who the ultimate decision maker was for this disastrous program and why these decisions were made. That information is among the most important documents that are being withheld.

Third, the Supreme Court in the Nixon case also held that even a proper invocation must yield to other branches’ need for information in some cases. So even a proper invocation of executive privilege regarding particular documents is not final.

And lastly, the President is required when invoking executive privilege to try to accommodate the other branches’ legitimate information needs in some other way. For example, it does not harm executive power for the President to selectively waive executive privilege in most instances, even if it hurts him politically by exposing a terrible policy failure or wrongdoing among his staff. The history of executive–congressional relations is filled with accommodations and waivers of privilege. In contrast to voluntary waivers of privilege, Watergate demonstrates that wrongful invocations of privilege can seriously damage the office of the presidency when Congress and the courts impose new constraints on the President’s discretion or power (some rightful and some not).

The key point, of course, is executive privilege cannot be used to “shield wrongdoing”.  While it is speculative, it appears highly likely – given the other options available – that executive privilege is being used for precisely that reason in this case.

Additionally, given the choices available to the President, it is not at all out of bounds to speculate that the most transparent administration in history is trying desperately to hide something even more terrible than the political fallout from this choice.

The White House cites internal discussions and ongoing investigations are the reason for its denial and claims the investigations would be jeopardized with the release of the documents.  But, as Gaziano points out, accommodations can be made in that regard.  The total number of documents requested is 1,300.  The White House is simply refusing to cooperate or accommodate.

Why?

We’re still left with that question.  

And the answer, given the  actions to date, lead to some logical speculation – what is contained in those documents is much more damaging politically than the damage done by the decision.  Additionally, Obama can’t afford to let Holder go because if he does there’s the potential that Holder will then spill the beans.

Oh, and finally, this move has suddenly brought Fast and Furious to page one and the top of the newscast like nothing else could.  The majority of the country, which was mostly ignorant of this scandal are now in the loop.

As the cited former White House counsel said, “the documents now to be withheld must be dynamite.”  In fact, they must be so explosive that the White House is desperate enough to try to weather this self-inflicted political storm in lieu of exposing them.

That says a lot.

~McQ

Twitter: @McQandO

Hints about how the Supreme Court will rule on ObamaCare?

File this under speculation, because that’s essentially what it is (but you have to do a little of it every now and then, and besides, it’s a sport when talking about pending SCOTUS decisions), but still speculation with some possibility of being accurate.

It seems, according to  Avik Roy, that June 25th is most likely the day we will learn the fate of ObamaCare from the Supreme Court.

“Setting aside the ACA cases,” he notes, “the Court essentially has twelve other decisions to hand down.” In addition, “in recent Terms, the Court has handed down opinions on Wednesdays or Thursdays of both of the last two weeks of the Term, in addition to the regularly scheduled Mondays. And the Court has already announced that it will issue one or more opinions next Thursday, June 21.” Worth also noting, he writes, “the Court almost never issues more than four or five opinions on the same day.”

Hence, if the court issues four or five opinions each on Monday, June 18 and Thursday, June 21, that would leave between two and four opinions for the last scheduled day for reading opinions: Monday, June 25.

And how will the ruling go?  Well, Ruth Bader Ginsberg has said previously that there are some “sharp divides” among the justices.

But, again according too Roy, Ginsberg may have also hinted she’s on the “dissenting” side, meaning that she’s on the minority side of the decision.  The basis for that claim?

In her ACS remarks, Ginsburg suggested that she might be on the dissenting side of the case. “I have spoken on more than one occasion about the utility of dissenting opinions, noting in particular that they can reach audiences outside the court and can propel legislative or executive change,” said Ginsburg, in the context of a 2007 pay discrimination case.

Or that may signal nothing at all (she may simply have been speaking academically about “dissenting opinions”).  The key, if we accept the premise that she’s on the dissenting side of this particular ruling is what that means.

Roy mentions that the divide may not be associated with killing the mandate – there may be more than 5-4 agreement on that subject (he suggests it is almost a given that Kennedy will join the conservatives on the court to kill the mandate).   The divide may be with what to do with the law if the mandate is killed:

The key question is: how much of the rest of the law should be struck down along with it?

Ginsburg wittily put it this way: “If the individual mandate, requiring the purchase of insurance or the payment of a penalty, if that is unconstitutional, must the entire act fall? Or, may the mandate be chopped, like a head of broccoli, from the rest of the act?”

My understanding—again, from third-hand sources—is that this question of severability is the subject of intense debate among the justices, even now. It’s entirely unclear whether the Court will strike down the mandate and two related provisions—what I’ve called the “strike three” scenario; or take down the entirety of Title I, where the law’s restructuring of the private insurance market resides; or overturn the whole law. Indeed, it is probable that the Court has not yet decided how it will rule on this question.

As far as I’m concerned, I’d like to see the entire law struck down.  However, I’m now wondering whether or not that will play out. 

Roy also mentions Antonin Scalia’s recent book and asserts that it hints that Scalia is on the side of dumping the mandate and the law in its entirety.  He wonders if Scalia, given his writing about the scale of the Commerce Clauses expansion and Scalia’s unhappiness with that, has chosen ObamaCare as the case he’s chosen for judicial pushback. 

So, again, based on this speculation, one might surmise that the court has found the individual mandate to be unconstitutional, but is struggling with how much or how little of the law to strike down.

Of course, the individual mandate is the heart and soul of the bill.   It is the payment mechanism that undergirds the entire ponzi scheme program.   No mandate, no money, no expanded risk pool, not much of anything if it goes.

So perhaps even if the court leaves much of ObamaCare standing, it will end up being a Pyrrhic victory for its supporters as the law will then be unsustainable as it exists (minus the mandate).

I guess we’ll see on or around the 25th.

~McQ

Twitter: @McQandO

Civil asset forfeiture: Government piracy

A good friend sends along this George Will column:

Russ Caswell, 68, is bewildered: “What country are we in?” He and his wife Pat are ensnared in a Kafkaesque nightmare unfolding in Orwellian language.

This town’s police department is conniving with the federal government to circumvent Massachusetts law – which is less permissive than federal law – in order to seize his livelihood and retirement asset. In the lawsuit titled United States of America v. 434 Main Street, Tewksbury, Massachusetts the government is suing an inanimate object, the motel Caswell’s father built in 1955. The U.S. Department of Justice intends to seize it, sell it for perhaps $1.5 million and give up to 80 percent of that to the Tewksbury Police Department, whose budget is just $5.5 million.

The Caswells have not been charged with, let alone convicted of, a crime. They are being persecuted by two governments eager to profit from what is antiseptically called the “equitable sharing” of the fruits of civil forfeiture, a process of government enrichment that often is indistinguishable from robbery.

Since 1994, about 30 motel customers have been arrested on drug dealing charges. Even if those police figures are accurate – the police have a substantial monetary incentive to exaggerate – these 30 episodes involved less than five one-hundredths of 1 percent of the 125,000 rooms Caswell has rented over those more than 6,700 days.

So we now have the local government and the federal government complicit in using this abysmal rights-violating drug law to take the property of the Caswells without giving them legal recourse to fight the charges.

How.

By charging the property with a crime.

The government says the rooms were used to “facilitate” a crime. It does not say the Caswells knew or even that they were supposed to know what was going on in all their rooms all the time. Civil forfeiture law treats citizens worse than criminals, requiring them to prove their innocence – to prove they did everything possible to prevent those rare crimes from occurring in a few of those rooms. What counts as possible remains vague. The Caswells voluntarily installed security cameras, they photocopy customers’ identifications and record their license plates, and turn the information over to the police, who have never asked the Caswells to do more.

The Caswells are represented by the Institute for Justice, a libertarian public-interest law firm. IJ explains that civil forfeiture is a proceeding in which property is said to have acted wrongly. This was useful long ago against pirates, who might be out of reach but whose ill-gotten gains could be seized. The Caswells, however, are not pirates.

No the pirates are among those in government and law enforcement who are attempting this travesty.

Constitutional?  You tell me:

They are violating the Eighth Amendment, which has been construed to forbid “excessive fines” that deprive individuals of their livelihoods. And the federal “equitable sharing” program violates the 10th Amendment by vitiating state law, thereby enabling Congress to compel the states to adopt Congress’ policies where states possess a reserved power and primary authority – in the definition and enforcement of the criminal law.

“Equitable sharing” – the consensual splitting of ill-gotten loot by the looters – reeks of the moral hazard that exists in situations in which incentives are for perverse behavior. To see where this leads, read IJ’s scalding report “Policing for Profit: The Abuse of Civil Asset Forfeiture” (http://ow.ly/aYME1), a sickening litany of law enforcement agencies padding their budgets and financing boondoggles by, for example, smelling, or imagining to smell, or pretending to smell, marijuana in cars they covet.

This happens more often than you might think, has been going on for decades, is immoral, unconstitutional and just flat wrong.  I really don’t care what you think about the drug war.  Civil asset forfeiture as it is done today is unacceptable  regardless – or should be.  I really don’t give a rip about whether or not it is “legal”.  Many a dictator has made murder legal but it didn’t change the morality of the act, did it?

This must stop.

Now.

[HT: Jake]

~McQ

Twitter: @McQandO

Civil asset forfeiture: a legal scam

As I’ve mentioned before, this is one that burns me up about as much as anything that government/law enforcement does.  Again, I want to make it clear – this nonsense exists because of the drug war.

First an explanation:

Civil asset forfeiture is based on the premise that a piece of property — a car, a pile of cash, a house — can be guilty of a crime. Laws vary from state to state, but generally, law enforcement officials can seize property if they can show any connection between the property and illegal activity. It is then up to the owner of the property to prove in court that he owns it or earned it legitimately. It doesn’t require a property owner to actually be convicted of a crime. In fact, most people who lose property to civil asset forfeiture are never charged.

The laws were created to go after the ill-gotten gains of big-time dealers, but critics say they’ve since become a way for police departments to generate revenue — often by targeting lower-level offenders.

In fact, in the case I’m about to relate, law enforcement has put together as much a “sure thing” as can be imagined.  Read this and be disgusted:

When the Brown County, Wis., Drug Task Force arrested her son Joel last February, Beverly Greer started piecing together his bail.

She used part of her disability payment and her tax return. Joel Greer’s wife also chipped in, as did his brother and two sisters. On Feb. 29, a judge set Greer’s bail at $7,500, and his mother called the Brown County jail to see where and how she could get him out. "The police specifically told us to bring cash," Greer says. "Not a cashier’s check or a credit card. They said cash."

So Greer and her family visited a series of ATMs, and on March 1, she brought the money to the jail, thinking she’d be taking Joel Greer home. But she left without her money, or her son.

Instead jail officials called in the same Drug Task Force that arrested Greer. A drug-sniffing dog inspected the Greers’ cash, and about a half-hour later, Beverly Greer said, a police officer told her the dog had alerted to the presence of narcotics on the bills — and that the police department would be confiscating the bail money.

"I told them the money had just come from the bank," Beverly Greer says. "We had just taken it out. If the money had drugs on it, then they should go seize all the money at the bank, too. I just don’t understand how they could do that."

The Greers had been subjected to civil asset forfeiture, a policy that lets police confiscate money and property even if they can only loosely connect them to drug activity. The cash, or revenue from the property seized, often goes back to the coffers of the police department that confiscated it. It’s a policy critics say is often abused, but experts told The HuffPost that the way the law is applied to bail money in Brown County is exceptionally unfair.

Indeed it was.  Why?  Because the county demanded cash, and, as Snopes tells us, about 80% of the cash in the US has traces of drugs on them (specifically cocaine):

In one 1985 study done by the U.S. Drug Enforcement Administration on the money machines in a U.S. Federal Reserve district bank, random samples of $50 and $100 bills revealed that a third to a half of all currency tested bore traces of cocaine.  Moreover, the machines themselves were often found to test positive, meaning that subsequent batches of cash fed through them would also pick up cocaine residue.  Expert evidence given before a federal appeals court in 1995 showed that three out of four bills randomly examined in the Los Angeles area bore traces of the drug.  In a 1997 study conducted at Argonne National laboratory, nearly four out of five bills in Chicago suburbs were found to bear discernible traces of cocaine.  In another study, more than 135 bills from seven U.S. cities were tested and all but four were contaminated with traces of cocaine.  These bills had been collected from restaurants, stores and banks in cities from Milwaukee to Dallas.

A single bill used to snort cocaine or otherwise mingled with the drug can contaminate an entire cash drawer.  When counting and sorting machines (which fan the bills, and thus the cocaine) are factored in, it’s no wonder that so much of the currency now in circulation wouldn’t pass any purity tests.

Of course, you can bet Brown County law enforcement is completely aware of this little factoid, thus the cash requirement for bail and, for them, the profitable inevitable outcome.

That’s why I call it what it truly is – a scam to cheat people out of their money perpetrated by the very people whose job it is to protect you from scam artists.  You have law enforcement knowingly setting up a situation in which they’re sure they’ll be able to take bail money under this civil asset forfeiture travesty because it will test positive for drugs.

In this case, it didn’t turn out so well for the thieves at the sheriff’s office:

It took four months for Beverly Greer to get her family’s money back, and then only after attorney Andy Williams agreed to take their case. "The family produced the ATM receipts proving that had recently withdrawn the money," Williams says. "Beverly Greer had documentation for her disability check and her tax return. Even then, the police tried to keep their money."

In this case there’s a fairly simple way to stop this sort of blatant thievery.  More options for payment (cashier’s check) other than cash.

However, it is civil asset forfeiture that needs to go the way of the Dodo bird:

In 2010, the Institute for Justice (IJ), a libertarian law firm, rated the forfeiture laws in all 50 states, assigning higher grades to states with fairer policies. The firm gave Wisconsin a "C." When there’s less than $2,000 at stake, law enforcement agencies in the state get to keep 70 percent of what they take. If more than $2,000 is taken, departments can keep half.

But in all states, police agencies can contact the Drug Enforcement Administration (DEA), making the case federal, and under federal law, local police departments can keep up to 80 percent of forfeiture proceeds, with the rest going to the Department of Justice. The institute reports that between 2000 and 2008, police agencies in Wisconsin took in $50 million from this "equitable sharing" program with the federal government.

When provided such an incentive, what is the usual reaction?  As demonstrated by this particular case where they took bail money, it has nothing to do with the pursuit of “big-time dealers” does it?  Instead, they’re just after low hanging fruit, which in this case also happened to be low-income people who had to scrape and borrow just to raise the bail.

That’s “law enforcement”?

That’s scamming the public for profit.  And it is an inexcusable breach of trust between law enforcement and the public. 

If anyone should be in jail, it is those who’ve perpetrated this travesty and those who use it to cheat the public.

~McQ

Twitter: @McQandO

Randy Barnett on Drug Prohibition

For a libertarian blog, this is a subject that we rarely opine about. Probably because its a rather dead horse that just doesn’t need any more beating. Even so, we do all too often have occasion to discuss the ill effects of the War on (Some) Drugs, such as the asset seizure case Bruce highlighted.

In that vein, Randy Barnett offers up his latest law review on the subject “The Harmful Side Effects of Drug Prohibition” and this abstract:

Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Advocating drug prohibition makes some people feel good because they think they are “doing something” about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for example, may gain financially from drug prohibition. But as with using drugs, using drug laws can have moral and practical side effects so destructive that they argue against ever using legal institutions in this manner.

This article will not attempt to identify and “weigh” the costs of drug use against the costs of drug laws. Instead, it will focus exclusively on identifying the harmful side effects of drug law enforcement and showing why these effects are unavoidable. So one-sided a treatment is justified for two reasons. First, a cost-benefit or cost-cost analysis may simply be impossible. Second, discussions by persons who support illegalizing drugs usually emphasize only the harmful effects of drug use while largely ignoring the serious costs of such policies. By exclusively relating the other side of the story, this article is intended to inject some balance into the normal debate.

The harmful side-effects of drug laws have long been noted by a number of commentators, although among the general public the facts are not as well known as they should be. More importantly, even people who agree about the facts fail to grasp that it is the nature of the means — coercion — chosen to pursue the suppression of voluntary consumptive activity that makes these effects unavoidable. This vital and overlooked connection is the main subject of this article.

It’s a pretty interesting read. You can download the entire article by visiting Randy’s post linked above.

Legalized theft: civil forfeiture

From my earliest days of blogging I’ve been talking about this (i.e. civil forfeiture) and still, nothing has been done to stop it.  It is legalized theft, plain and simple.  And it still makes me as angry as can be:

"If somebody told me this happened to them, I absolutely would not believe this could happen in America."

That was the reaction of a New Jersey man who found out just how risky it can be to carry cash through Tennessee.

In this latest case, a Monterey police officer took $22,000 off the driver — even though he had committed no crime.

"You live in the United States, you think you have rights — and apparently you don’t," said George Reby.

I want you to read carefully the arrogance implicit in the “law” that these sorts of forfeitures represent.  A more convoluted and outrageous example of the tyranny of the law I can’t imagine (although I’m sure there are many):

Reby was driving down Interstate 40, heading west through Putnam County, when he was stopped for speeding.

A Monterey police officer wanted to know if he was carrying any large amounts of cash.

"I said, ‘Around $20,000,’" he recalled. "Then, at the point, he said, ‘Do you mind if I search your vehicle?’ I said, ‘No, I don’t mind.’ I certainly didn’t feel I was doing anything wrong. It was my money."

That’s when Officer Larry Bates confiscated the cash based on his suspicion that it was drug money.

"Why didn’t you arrest him?" we asked Bates.

"Because he hadn’t committed a criminal law," the officer answered.

Uh, then why did you take his freakin’ money?

Bates said the amount of money and the way it was packed gave him reason to be suspicious.

"The safest place to put your money if it’s legitimate is in a bank account," he explained. "He stated he had two. I would put it in a bank account. It draws interest and it’s safer."

"But it’s not illegal to carry cash," we noted.

"No, it’s not illegal to carry cash," Bates said. "Again, it’s what the cash is being used for to facilitate or what it is being utilized for."

NewsChannel 5 Investigates noted, "But you had no proof that money was being used for drug trafficking, correct? No proof?"

"And he couldn’t prove it was legitimate," Bates insisted.

WHAT?! 

He shouldn’t have to prove anything.  Not his freakin’ job!  That’s the law’s job.  And as is obvious, they’ve got zip in that regard.  But that aside, they also have his money.

Read the rest if you have the stomach for it.  It actually gets worse.

This has been going on for years and years.  It is a legal travesty driven by the “war on drugs”, it is taking without due process and it should have been stopped years ago.

Yet here we are.

~McQ

Twitter: @McQandO

“Farewell sex” to be legal as Arab Spring continues to flower in Egypt

I’ll just put this up here with minimal comment and let you folks provide the narrative:

Egyptian husbands will soon be legally allowed to have sex with their dead wives – for up to six hours after their death.

The controversial new law is part of a raft of measures being introduced by the Islamist-dominated parliament.

It will also see the minimum age of marriage lowered to 14 and the ridding of women’s rights of getting education and employment.

Yup, much better than before.  A veritable leap into the 21st century, no?  Definitely a secular and liberal triumph, right?

Oh … and out of curiosity, what if he waits till 7 hours after death, what happens?

~McQ

Twitter: @McQandO

Another bad day at the Supreme Court for the Obama administration

When the oral arguments were being made for ObamaCare, I made the observation that Solicitor General Donald Verrilli sounded like a man trying to defend arguments he really didn’t believe in.  Add to that the fact that they were weak arguments and you have a man facing the Supreme Court who sounded like he was in over his head.

Verrilli had another such day yesterday, as John Hinderaker  at Powerline notes.  This time the court was hearing arguments about the Arizona immigration law.  Hinderaker reviewed the transcript of Verilli’s arguments and concluded, “the problem was not with Verrilli but rather with the quality of the arguments that he was required to make by his client, the Obama administration.”

Example:

JUSTICE KENNEDY: So you’re saying the government has a legitimate interest in not enforcing its laws?

GENERAL VERRILLI: No. We have a legitimate interest in enforcing the law, of course, but it needs to be — but these — this Court has said over and over again, has recognized that the — the balance of interest that has to be achieved in enforcing the — the immigration laws is exceedingly delicate and complex, and it involves consideration of foreign relations, it involves humanitarian concerns, and it also involves public order and public –

Hinderaker calls the response “incoherent”.  Scalia follows up:

JUSTICE SCALIA: So we have to — we have to enforce our laws in a manner that will please Mexico. Is that what you’re saying?

GENERAL VERRILLI: No, Your Honor, but what — no, Your Honor, I’m not saying that –

JUSTICE SCALIA: Sounded like what you were saying.

That’s pretty pointed.  That also indicates that the argument isn’t resonating with the court.  Hinderaker summarizes the argument that Verrilli is being forced to defend:

Of course, what is going on here is that the Obama administration doesn’t want to enforce the immigration laws that Congress has enacted. The essence of its position in the Arizona case is that the federal government has the right to decide not to enforce the law, and if it so decides, then no state has the power, under the Constitution, to do anything that would tend to enforce those federal laws. So if the Obama administration decides that it will gain political advantage by ignoring federal laws against illegal immigration, states like Arizona just have to take the consequences without complaining.

That understanding is what is driving questions like those from Scalia and Kennedy.  It is indeed an indefensible position, especially in a nation that claims to be a nation of laws, not men.

How indefensible?  Even Justice Sotomayor isn’t buying:

JUSTICE SOTOMAYOR: Can I get to a different question? I think even I or someone else cut you off when you said there were three reasons why — 2(B). Putting aside your argument that this — that a systematic cooperation is wrong — you can see it’s not selling very well — why don’t you try to come up with something else? Because I, frankly — as the chief has said to you, it’s not that it’s forcing you to change your enforcement priorities. You don’t have to take the person into custody. So what’s left of your argument?

Of course this sets up the inevitable “shock” on the left.  I’m sure they thought that, as in the case of ObamaCare, their arguments were Constitutionally ironclad.

While Verrilli may not be the smoothest SG we’ve ever had, he’s been consistently thrust before the court with abysmal arguments in which he is forced to defend laws or actions which are at best questionably constitutional.  At best.

When even a Obama appointed justice isn’t buying the administration’s argument, well, it must be a pretty lousy argument.  And, of course, claiming the right not to enforce the law and then claiming Constitutional cover to force states to have to live with the results of the federal government’s decision not to enforce the laws of the land is a pretty lousy argument.

But that’s what he’s stuck with.

Obviously none of this means the court will end up finding for Arizona.  But, as Lyle Denniston at SCOTUS blog points out, indications seem to point to some interest in the court in doing so:

In an oral argument that ran 20 minutes beyond the scheduled hour, the Justices focused tightly on the actual operation of the four specific provisions of the law at issue, and most of the Court seemed prepared to accept that Arizona police would act in measured ways as they arrest and detain individuals they think might be in the U.S. illegally.  And most of the Justices seemed somewhat skeptical that the federal government would have to change its own immigration priorities just because states were becoming more active.

At the end of the argument in Arizona v. United States (11-182), though, the question remained how a final opinion might be written to enlarge states’ power to deal with some 12 million foreign nationals without basing that authority upon the Scalia view that states have a free hand under the Constitution to craft their own immigration policies.   The other Justices who spoke up obviously did not want to turn states entirely loose in this field.  So perhaps not all of the four clauses would survive — especially vulnerable may be sections that created new state crimes as a way to enforce federal immigration restrictions.

As should be clear, there seems to be an interest in accommodating portions of the Arizona law that the court feels are “reasonable”.  That is contrary to what the left assured us would be the courts position on Arizona’s “draconian” immigration law.

In fact, should the court find for Arizona in some of the key provisions, I’m sure we’ll hear the left’s usual defense – judicial activism. 

The irony, of course, is that the Obama economy has been the best means of reversing the tide of illegal immigration.  According to reports we now have net illegal emigration taking place.

That seems like the perfect point to settle this.  The federal government, under the Constitution, has a legal obligation to enforce the laws passed by Congress.  It hasn’t been doing that.  And that’s the real point here.   It will be interesting to see how the court handles that particular point.  Meanwhile, it appears that key portions of the AZ bill may survive.

~McQ

Twitter: @McQandO

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