Free Markets, Free People

Legal Affairs


NY soda ban: You can always find someone to defend the indefensible

In the case of Michael Bloomberg’s overreach in banning a specific size of soda drink, the defender is some fellow named Lawrence Gostin.  The headline of the article he’s written is “Banning large sodas is legal and smart”.

Really?  Legal and smart?  His defense of the indefensible has him channeling Paul Krugman, or at least emulating him.

As I’ve said before, it’s always wise to check the premise on which someone like this operates.  In this case, the premise is, as you might expect, flawed and the reasoning thin.   It all comes down to a word – “imminent” – and the author’s obvious belief that it is the job of government to save us from ourselves.   You have to dig through the article a bit, but here’s where Gostin’s claim of legality comes from:

Admittedly, the soda ban would have been better coming from the city’s elected legislature, the City Council. But the Board of Health has authority to act in cases where there is an imminent threat to health. Doesn’t the epidemic of obesity count as an imminent threat, with its devastating impact on health, quality of life and mortality? In any event, the Board of Health has authority over the food supply and chronic disease, which is exactly what it has used in this case.

Members of the Board of Health, moreover, are experts in public health, entitled to a degree of deference. The fact that the proposal originated in the mayor’s office does not diminish the board’s authority and duty to protect the public’s health. Many health proposals arise from the executive branch, notably the Affordable Care Act.

Uh, no, obesity doesn’t qualify as an “imminent” threat such that a Board of Health can arbitrarily declare something “banned”.  Why not king size candy bars?  Why not New York cheese cake?  Why not a whole plethora of sugar soaked products?  Well, if you’re paying attention, I’m sure you’ve realized that if this had flown, such bans were likely not far behind.

But back to Gostin.   Here’s his real argument:

First, the ever-expanding portions (think "supersized") are one of the major causes of obesity. When portion sizes are smaller, individuals eat less but feel full. This works, even if a person can take an additional portion. (Most won’t because they are satiated, and it at least makes them think about what they are consuming.) Second, sugar is high in calories, promotes fat storage in the body and is addictive, so people want more. The so-called "war on sugar" is not a culture war, it is a public health imperative backed by science.

So, there is good reason to believe New York’s portion control would work. But why does the city have to prove that it works beyond any doubt? Those who cry "nanny state" in response to almost any modern public health measure (think food, alcohol, firearms, distracted driving) demand a standard of proof that lawmakers don’t have to meet in any other field.

Because we don’t, in his opinion, “demand a standard of proof” from lawmakers in any other field, we shouldn’t, apparently, demand that standard in this field.  After all it is a “public health imperative” which is “backed by science”.  Where have we heard that before (*cough* global warming *cough*)?

So we shouldn’t ask lawmakers to prove that a) obesity is an imminent threat and b) banning large sodas will defeat that threat?  Because that’s certainly the premise.

In fact, we should do precisely the opposite of what Gostin says.  We should demand “a standard of proof” from out lawmakers that requires they prove whatever bill they’re contemplating is in fact necessary.  Want to ban “assault weapons”.  Prove to me that such a ban will “curb gun violence”.  Stats seem to indicate it will have no effect.  The lapse of the previous ban showed no appreciable increase in gun violence and we’ve seen an overall decrease in violence as a whole.

In this case, the ban Gostin tries to defend and contrary to his headline claims, was neither legal or smart.  It was arbitrary and poorly thought out (if it was thought out at all – seems more like it was a capricious act grounded in an inflated belief in the power Mayor Bloomberg thought he had).  And according to a NY state judge, it wasn’t legal either.

Of course Gostin tries a transparently obvious bit of nonsense by blaming the failure on “Big Food” and a compliant judge buying into their arguments.  It is the usual fall back position for someone who has nothing.  And his trump card is to compare the food industry to, you guessed it, the tobacco industry.  “Big” anything to do with business or industry is a liberal boogyman invoked when arguments are weak.  And Gostin’s is about as weak as they come.  His attempt to fob this off on the “usual suspects” is, frankly, laughable.

I note this particular “defense” by Gostin simply to point out that there are people out there, people others consider to be rational and intelligent (and, apparently, who can get things published on CNN) that can rationalize curbing you freedoms and liberties through the use of force (law and enforcement) because they actually believe they know what is best for you and have the right to act on that on your behalf.

What we need to do, quickly, is find a way to dissuade the nannies of the world from that belief.  They need to understand that freedom means they’re free to act on what they believe in circumstances like this but they’re not free to decide that others must do it too, because they’ve decided that’s the “smart” thing to do.  Freedom means the right to fail, get fat, do stupid things (that don’t violate the rights of others), etc.  We’re issued one mother in our lives.  And it’s not the state.

~McQ


State court says no to Bloomberg’s large soda ban

As it should:

A state judge on Monday stopped Mayor Michael Bloomberg‘s administration frombanning the sale of large sugary drinks at New York City restaurants and other venues, a major defeat for a mayor who has made public-health initiatives a cornerstone of his tenure.

The city is “enjoined and permanently restrained from implementing or enforcing the new regulations,” wrote New York Supreme Court Judge Milton Tingling, blocking the rules one day before they would have taken effect. The city’s chief counsel, Michael Cardozo, pledged to “appeal the ruling as soon as possible.”

In halting the drink rules, Judge Tingling noted that the incoming sugary drink regime was “fraught with arbitrary and capricious consequences” that would be difficult to enforce with consistency “even within a particular city block, much less the city as a whole.”

“The loopholes in this rule effectively defeat the stated purpose of the rule,” the judge wrote. (Read the full text of the ruling.)

Under a first-of-its-kind prohibition approved by the city Board of Health last year, establishments from restaurants to mobile food carts would have been prohibited from selling sugary drinks larger than 16 oz. After a three-month grace period, the city would have started fining violators $200 per sale.

So the nanny gets told “no”.

Does anyone really believe this will stop him?

~McQ


The law? Something for thee, not me

Or so says the executive branch in many, many cases.

In this particular case, the National Labor Relations Board, NLRB, has simply decided to ignore a ruling of a US Court of Appeals:

Only a few hours after the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that the National Labor Relations Board does not have a legal quorum to act, the board’s chairman, Mark Pearce, issued a press release announcing the board’s intent to ignore it.

The timing and content of Pearce’s statement show a board so fixated on serving the interests of organized labor it no longer knows its place nor weighs the consequences of its actions on the public interest. Although Pearce may believe that the president has the authority to make recess appointments over a three-day break in ongoing Senate sessions — or over lunch, for that matter — it is not the place of the NLRB chairman to disagree with a circuit court on a constitutional question that goes to the heart of the political appointment process and one in which he has a partisan interest.

The answer to that is to ignore the NLRB and anything it says, does or declares.

If they can play that game, so can we.

~McQ


Dear CO and WA – good luck with those marijuana legalization laws

The imperial “federal” government knows better than you what is good for “the people”:

“This is a symbolic victory for (legalization) advocates, but it will be short-lived,” Kevin Sabet, a former adviser to the Obama administration’s drug czar, told reporters.

“They are facing an uphill battle with implementing this, in the face of … presidential opposition and in the face of federal enforcement opposition,” Sabet said.

Because everyone knows we are a country in which state’s rights exist and the people get to decide.   And we certainly know prohibition worked extraordinarly well in the 1920s.

Let freedom ring.

Forward.

~McQ


Benghazi bottom line

Two things we now know the President didn’t do.  First from CBS:

CBS News has learned that during the Sept. 11 attack on the U.S. Mission in Benghazi, the Obama Administration did not convene its top interagency counterterrorism resource: the Counterterrorism Security Group, (CSG).

“The CSG is the one group that’s supposed to know what resources every agency has. They know of multiple options and have the ability to coordinate counterterrorism assets across all the agencies,” a high-ranking government official told CBS News. “They were not allowed to do their job. They were not called upon.”

The second from a former SEAL officer who knows the protocol necessary to launch a rescue from outside Libya:

No administration wants to stumble into a war because a jet jockey in hot pursuit (or a mixed-up SEAL squad in a rubber boat) strays into hostile territory. Because of this, only the president can give the order for our military to cross a nation’s border without that nation’s permission. For the Osama bin Laden mission, President Obama granted CBA for our forces to enter Pakistani airspace.

On the other side of the CBA coin: in order to prevent a military rescue in Benghazi, all the POTUS has to do is not grant cross-border authority. If he does not, the entire rescue mission (already in progress) must stop in its tracks.

So, bottom line – He didn’t convene the CSG which would have been the lead agency to coordinate an attempted rescue from outside the country and he apparently never gave the CBA (which only he can issue) necessary to do so.

Or, in other words, he lied about doing everything necessary to save and protect the lives of those in combat in Libya.

Finally, the cover-up and attempting to deflect the blame:

Leon Panetta is falling on his sword for President Obama with his absurd-on-its-face, “the U.S. military doesn’t do risky things”-defense of his shameful no-rescue policy. Panetta is utterly destroying his reputation. General Dempsey joins Panetta on the same sword with his tacit agreement by silence. But why? How far does loyalty extend when it comes to covering up gross dereliction of duty by the president?

Great question.  Don’t expect an answer anytime soon.

~McQ


Someone’s in trouble

The Los Angeles Times was there when the LASO came to pick up the "Innocence of Muslims" filmmaker for a "voluntary interview".

arrest

As the Times put it:

Just after midnight Saturday morning, authorities descended on the Cerritos home of the man believed to be the filmmaker behind the anti-Muslim movie that has sparked protests and rioting in the Muslim world.

Sheriff’s officials could not be reached by The Times, but department spokesman Steve Whitmore told KNBC News that deputies assisting the federal probation department took Nakoula to the sheriff’s substation in Cerritos for interviewing.

Apparently, they’re concerned about a possible probation violation, because he wasn’t supposed to access the Internet. But now his horrible movie is on YouTube, so he may in trouble. Hence, brown-shirted men showed up at midnight to "escort" him to a "voluntary interview".

There’s no free speech issue at all to be concerned with here. Move along citizen.

Instapundit has a round-up of reaction.

~
Dale Franks
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There is no voter fraud, except when there is voter fraud

Like in the MN Senate race that put Al Franken in office and provided Senate Democrats with their 60th vote.

Byron York provides the short version of the story and what was found subsequently:

In the ’08 campaign, Republican Sen. Norm Coleman was running for re-election against Democrat Al Franken. It was impossibly close; on the morning after the election, after 2.9 million people had voted, Coleman led Franken by 725 votes.

Franken and his Democratic allies dispatched an army of lawyers to challenge the results. After the first canvass, Coleman’s lead was down to 206 votes. That was followed by months of wrangling and litigation. In the end, Franken was declared the winner by 312 votes. He was sworn into office in July 2009, eight months after the election.

During the controversy a conservative group called Minnesota Majority began to look into claims of voter fraud. Comparing criminal records with voting rolls, the group identified 1,099 felons — all ineligible to vote — who had voted in the Franken-Coleman race.

And what has happened since?

And so far, Fund and von Spakovsky report, 177 people have been convicted — not just accused, but convicted — of voting fraudulently in the Senate race. Another 66 are awaiting trial. "The numbers aren’t greater," the authors say, "because the standard for convicting someone of voter fraud in Minnesota is that they must have been both ineligible, and ‘knowingly’ voted unlawfully." The accused can get off by claiming not to have known they did anything wrong.

Still, that’s a total of 243 people either convicted of voter fraud or awaiting trial in an election that was decided by 312 votes.

And, of course, the probability is these felons absolutely knew they were breaking the law and fraudulently voted anyway.

Obviously making a connection between them and Democrats is likely impossible, but it does point to something that the left consistently denies – the existence of voter fraud.

It exists.  Denying it exists, as the left does, only damages their credibility. 

Many times it is the system itself which enables fraud to be carried out.  Incompetence and inefficiency within government agencies charged with supervising voting are as much the problem as the frauds.  For instance:

The Houston-based True the Vote said it has identified 160 counties across 19 states with more registered voters on their rolls than eligible live voters. This chart highlights the 19 states and how they voted in the 2008 election.

Keeping the voter roles current and ensuring all registered voters are eligible would seem to be a primary mission of any state’s voter bureaucracy, wouldn’t it?

Yet what did we recently see – the Obama DoJ go after the state of Florida for doing its job and purging it’s voter roles of the dead and ineligible.  You’d think that they’d encourage such an action because it helps guarantee the integrity of the voting system.

But instead, it tried to stop it.

There is all sorts of fraud.  That like York points out.  That like this case in Miami:

It’s a shady world, as the case of 56-year-old Deisy Cabrera in Hialeah shows.

Cabrera was charged Wednesday with a state felony for allegedly forging an elderly woman’s signature on an absentee ballot, and with two counts of violating a Miami-Dade County ordinance banning the possession of more than two filled-out absentee ballots.

Much of the fraud takes place within the early voting venues.  As the above case illustrates, preying on nursing home residents is only one of many ways fraudulent ballots are cast.

However the Democrats contend that voter ID laws are a means of stopping a problem that doesn’t exist.  They claim there is very little if any fraud to be found in same day voting.  Of course that’s hard to substantiate when voter roles are larger than the pool of eligible voters in many areas and no on is asked to prove who they are. 

The other complaint is that voter ID laws “disenfranchise” minorities and the poor.  Yet Georgia’s experience directly contradicts that claim with minority and overall voter turnout increasing in the elections following the implementation of a voter ID law.

Bottom line: the integrity of the voting system is paramount to instilling confidence in the citizenry that their voices are being truly heard.   If ever there seemed to an issue that should be truly bi-partisan, this would be it.  Yet there are very clear battle-lines drawn with one side claiming fraud doesn’t exist (and they’re factually incorrect about that) and the other saying it does and something should be done about it.

Guess which side I come down on?

~McQ

Twitter: @McQandO


Obama campaign moves to restrict military voting in Ohio

Breitbart’s Mike Flynn reports:

President Barack Obama, along with many Democrats, likes to say that, while they may disagree with the GOP on many issues related to national security, they absolutely share their admiration and dedication to members of our armed forces. Obama, in particular, enjoys being seen visiting troops and having photos taken with members of our military. So, why is his campaign and the Democrat party suing to restrict their ability to vote in the upcoming election?

On July 17th, the Obama for America Campaign, the Democratic National Committee, and the Ohio Democratic Party filed suit in OH to strike down part of that state’s law governing voting by members of the military. Their suit said that part of the law is "arbitrary" with "no discernible rational basis."

Currently, Ohio allows the public to vote early in-person up until the Friday before the election. Members of the military are given three extra days to do so. While the Democrats may see this as "arbitrary" and having "no discernible rational basis," I think it is entirely reasonable given the demands on servicemen and women’s time and their obligations to their sworn duty.

Flynn cites the National Defense Committee which reports:

[f]or each of the last three years, the Department of Defense’s Federal Voting Assistance Program has reported to the President and the Congress that the number one reason for military voter disenfranchisement is inadequate time to successfully vote.

So here is a law actually trying to provide a little extra time to address the problem cited (btw, the members of the military would most likely have to show their military picture ID to be granted the opportunity to vote during that “extra time”).  Why the resistance from the Obama campaign and Democrats?   Why the intent to disenfranchise military voters?

If the polls are to be believed concerning how the military is likely to vote, it wouldn’t favor Obama or the Democrats.  And, of course, Ohio is a swing state.  So they want no extra time allowed for the military to vote (and don’t expect the DoJ to jump in here and take the side of the military either).

Mystery solved.

But hey, the military is still useful as props during photo ops and when they help burnish the C-i-C’s rep by killing bad guys like Osama.  Voting?  Yeah, not so much.

~McQ

Twitter: @McQandO


DEA sting gone wrong violated Texas truck owner’s rights

Need a story to get you all fired up this morning?  Looking for something to make you see red?

The DEA provides it (from the Houston Chronicle via NRO):

The phone rang before sunrise. It woke Craig Patty, owner of a tiny North Texas trucking company, to vexing news about Truck 793 — a big red semi supposedly getting repairs in Houston.

“Your driver was shot in your truck,” said the caller, a business colleague. “Your truck was loaded with marijuana. He was shot eight times while sitting in the cab. Do you know anything about your driver hauling marijuana?”

“What did you say?” Patty recalled asking. “Could you please repeat that?”

The truck, it turned out, had been everywhere but in the repair shop.

Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.

The concept of private property?  Completely ignored.  Permission?  We don’t need no stinkin’ permission.  We’re the federal government.  We’re the DEA.

But eight months later, Patty still can’t get recompense from the U.S. government’s decision to use his truck and employee without his permission.

His company, which hauls sand as part of hydraulic fracturing operations for oil and gas companies, was pushed to the brink of failure after the attack because the truck was knocked out of commission, he said.

Patty had only one other truck in operation.

In documents shared with the Houston Chronicle, he is demanding that the DEA pay $133,532 in repairs and lost wages over the bullet-sprayed truck, and $1.3 million more for the damage to himself and his family, who fear retaliation by a drug cartel over the bungled narcotics sting.

Out of control?  That’s a vast understatement.  This is like Fast and Furious Jr.  Who thought this up? Who approved it?  Why didn’t they seek the permission and cooperation of the owner of the business and property?  Where in the world do they get off commandeering private property and endangering the life and livelihood of a citizen without seeking his okay to use his property?

The operation was a fiasco:

At least 17 hours before that early morning phone call, Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.

In the confusion of the attack in northwest Harris County, compounded by officers in the operation not all knowing each other, a Houston policeman shot and wounded a Harris County sheriff’s deputy.

17 hours before the owner of the truck was notified and that notification didn’t come from either the police or the DEA.  The only thing the DEA didn’t commandeer for this operation was a clown car.  Said Patty:

"I was not part of this," he said. "I had absolutely no knowledge of any of it until after it happened."

For its part, the DEA has not admitted that it was using Chapa as a spy because its official policy is not to comment on whether someone was an informant.

Lisa Johnson, a spokeswoman for the DEA Houston Division, confirmed that Patty’s demand had been received and noted that it would be investigated by the agency. But the Chronicle established Chapa was an informant based on interviews with multiple law-enforcement officials who spoke on the condition they not be named, and later by courtroom comments of prosecutors.

So now the DEA will drag its feet, pretend like it is investigating this, refuse to admit anything, and, as is fairly standard and routine behavior for government agencies violating the rights of the citizens these days, obfuscate, evade and attempt to block every move to shine a light on this operation.

This is outrageous.  And, if the facts presented by the Chronicle are true, whoever put this together and executed it deserves to be put on trial and put in jail.  That’s right, jail.  We want someone held accountable for this travesty for a change.

As for Patty, pay the man, DEA.  You screwed up big time, you were wrong to commandeer his property and put his life in danger.  You had no right to do any of that and you owe him the chance to get his life and that of his family back in order.

~McQ

Twitter: @McQandO


ObamaCare: The fallout

I’ve read all the pundits and listened to all the talking head elite tell us how incredibly nuanced and subtle the Chief Justice was by approving the law as a tax.  In fact one described him as “"a chess master, a statesman, a Burkean minimalist, a battle-loser but war-winner, a Daniel Webster for our times."

I say “BS”.  He sold out.  He ended up being more worried about the perception of the court and his legacy than upholding the Constitution of the United States.  And I’m not the only one who feels that way.  The Wall Street Journal also throws a punch or two at Roberts:

His ruling, with its multiple contradictions and inconsistencies, reads if it were written by someone affronted by the government’s core constitutional claims but who wanted to uphold the law anyway to avoid political blowback and thus found a pretext for doing so in the taxing power.

If this understanding is correct, then Chief Justice Roberts behaved like a politician, which is more corrosive to the rule of law and the Court’s legitimacy than any abuse it would have taken from a ruling that President Obama disliked. The irony is that the Chief Justice’s cheering section is praising his political skills, not his reasoning. Judges are not supposed to invent political compromises.

"It is not our job," the Chief Justice writes, "to protect the people from the consequences of their political choices." But the Court’s most important role is to protect liberty when the political branches exceed the Constitution’s bounds, not to bless their excesses in the interests of political or personal expediency or both. On one of the most consequential cases he will ever hear, Chief Justice Roberts failed this most basic responsibility.

Precisely.  And Roberts caved.  From the lecture the court got from Obama during a State of the Union address till now, he became a cautious old lady more concerned with his reputation in perpetuity than serving the people and the Constitution he swore to uphold. 

That, as the WSJ says, is “more corrosive to the rule of law and the Court’s legitimacy” than anything he could have done.  He didn’t have the spine to take the heat from a controversial but proper decision so he took the easy way out.  He threw away his integrity for popularity and peace.   A judicial Chamberlin if you will.

Jacob Sullum at Reason gives you the rest of the bad news:

The Journal notes that the tax power endorsed by Roberts is no less sweeping and dangerous to liberty than the Commerce Clause argument he rejected. "From now on," it says, "Congress can simply regulate interstate commerce by imposing ‘taxes’ whenever someone does or does not do something contrary to its desires." Worse, as I pointed out last week, the tax trick allows Congress to dispense with claims about interstate commerce altogether. As long as a mandate is disguised as a tax (and as long as it does not violate explicit limits on federal power such as those listed in the Bill of Rights), "because we said so" is reason enough.

Mandates “disguised as a tax” give Congress almost limitless power to control your life.  That is the power Roberts handed our elected officials. 

Oh, but the apologists say, that will never happen.  They’d never abuse that power.  Yeah, a little lesson in history.   When the Constitutional amendment for the income tax was being debated some wanted to put a 2% limit on it. “Don’t do that,” the others said, “it will encourage Congress to immediately go that high.”

And here we are.

The Congress no longer need wrestle with intrusion in your life via the Commerce clause.  Justice Roberts just gave them an infinitely easier route that doesn’t require a Constitutional check.  He effectively removed the Court from its role in protecting you from increasing government intrusion.

And clever politicians will find a way to use that power he handed them when necessary.  Don’t you ever doubt that.

As for Roberts.  I have little or no use for a man who sits on the bench of the Supreme Court and puts politics in front of the Constitution he’s sworn to uphold.

~McQ

Twitter: @McQandO