Free Markets, Free People

Legal Affairs

1 ... 3 4 5 6 7 ... 19


Obama’s criticism of SCOTUS hardly “scholarly”

There are times when even I’m a bit surprised at what manages to work its way out of our President’s mouth.  After all, included in what little we do know about the guy is the claim that he was a “Constitutional lawyer”.  He even taught that in Chicago to law students, or so we’re told.

Yet yesterday, in a press conference with the leaders of Mexico and Canada he was asked about the pending Supreme Court decision on ObamaCare and said:

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress.”

I can’t imagine a more supremely arrogant and yet profoundly ignorant statement than that.  Of course, at least in my day, most school children would have understood the ignorance of that statement.

I’ll illustrate it for you if necessary by adding a bit to his words:

“I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected congress that allows whites to lynch blacks.”

Obviously he’d be clamoring for the SCOTUS to overturn a law like that.  And he wouldn’t hesitate to condemn the “strong majority of democratically-elected” officials that passed such a law n the first place (and lets pretend this was signed before he assumed office – you know, Bush did it).  Strong majorities (in the case of ObamaCare it was 219 to 212) passing anything are irrelevant if what they pass is in conflict with the Constitution – period.

In the hypothetical most of us would immediately identify the fact that a) murder and lynching are not within the power of any majority to sanctify and certainly not a power granted in the Constitution and b) it is the job of the Supreme Court to strike down laws that are unconstitutional regardless of how strong the majority voting for it.

I can’t imagine a supposed, or at least self-described, Constitutional scholar making such an ignorant statement to begin with … but there it is.  He then followed it up with this:

“I just remind conservative commentators that for years we have heard the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example and I am pretty confident that this Court will recognize that and not take that step.”

Smartest guy in the room?  I’m sorry, but that just doubles down on ignorance.

As we’ve discussed (most recently on the podcast) it isn’t the job of the Supreme Court to do the job of Congress.   Instead, its job is  to determine whether or not what Congress has done is compliant with the limits the Constitution places on it.  That’s it.  There is nothing which requires the Supreme Court to “fix” laws that Congress has passed.  

Justice Kennedy alluded to this when he said that the removal of the individual mandate would completely change the law in a way that was clearly not what Congress intended.  Thus the “conservative” thing for the court to do would be to strike down the entire law and tell Congress to go back to work.  Of course the Democrats and Obama know that if the entire law is struck down, the likelihood of it being “fixed”, given the Republican House, are remote.  Thus we hear the usual nonsense about “judicial activism” and the other garbage Obama tossed out above making the rounds on the left.

Then there’s the remark about “an unelected group of people”.  My goodness Constitutional scholar, they’re “unelected” and appointed for life for a reason.  And that reason is to remove politics, as much as possible, from their deliberations and allow them to focus entirely on the law and Constitution.  Obviously, it seems, politics haven’t been kept out of the Supreme Court, but for the President to take a juvenile shot like that at the Court while it is in deliberations is fairly outrageous.

Bottom line: If those Obama quotes now illustrate “Constitutional scholarship” in this day and age, this Republic is in very deep trouble.

~McQ

Twitter: @McQandO


Trayvon Martin, George Zimmerman and the digital lynch mob

I have to admit watching this “discussion” over the who, what, when, where and how of the shooting of Trayvon Martin by George Zimmerman with disgust.  I refrained from commenting on it when it first hit the news because I have learned enough over the years to recognize stories where one needs to let it develop a bit for all the facts to come out.

Of course that didn’t at all stop the usual suspects from pouncing on what seemed a perfect story with which they could push their favorite racial themes (Jesse Jackson’s “Blacks are under attack” for instance) and for others to involve themselves in something that they really have no business involving themselves in.

It has laid bare the polarization within this country and how extreme it has become.

The story, if you’ve taken time to research it, is nothing like the cut and dried “whitey killed a black man because he was black” meme the race baiters are pushing.   In fact, if you’ve bothered to research the story, it appears that race had little if anything to do with this tragedy.  It is not a racial issue, even if it has been portrayed as such by the Al Sharptons, Jesse Jacksons and Louis Farrakhans of this world. 

George Zimmerman, if anything, appears to have been an overzealous neighborhood watch person with a history of calling in suspicious activities he saw in his neighborhood.  Treyvan Martin, who lived 250 miles away from that neighborhood, was apparently acting suspiciously (rummaging through garbage cans, etc.) when Zimmerman spotted him.  I doubt that Zimmerman cared one whit what Martin’s skin color was at the time.   Apparently somewhere during that time, a confrontation took place, a fight ensued and Zimmerman killed Martin with a shot to the chest.

A witness has come forward saying he saw Martin on top of Zimmerman punching him in the face. Martin, aged 17 and 6 foot 3, was not the innocent “child” the media has tried to portray.   He was a probably bigger than Zimmerman and was on a 10 day suspension from school.  Obviously that doesn’t justify killing him but it sheds a little different light on the situation.

I can’t get inside the heads of either of these people but is it reasonable to assume, given the situation, that Zimmerman might have feared for his life?   Possibly.  I don’t know – and neither does anyone else.

Does that justify the shooting.  Again, I don’t know.

But of course all the race pimps do. Just ask them.  And so they’ve essentially initiated a vendetta against George Zimmerman, who, by the way, isn’t white even though that assumption was immediately made by many given his name.  Zimmerman’s mother is Peruvian and of Indian stock. 

An example of the thoughtless incitement that is going on can be found with none other than Spike Lee who, uninformed jerk that he is, published Zimmerman’s address on Twitter.    Numerous threats to Zimmerman have been published on Twitter as well.  The New Black Panthers have put a $10,000 bounty on Zimmerman’s head.  Louis Farrakhan tweeted that the “law of retribution may soon be applied”, a not-so-veiled threat against Zimmerman.

The irony, of course, is this is a typical lynch mob mentality being stirred up here.  These are calls for violence outside the law. 

No one is claiming that George Zimmerman isn’t at fault here.  He may very well be. We don’t know yet.   That’s for a court of his peers to decide.  Certainly not a marginally informed and inflamed mob.  If something happens to Zimmerman before his day in court, you can most likely look to the digital lynch mob for the source.  I’ve always considered the racist white lynch mobs of the past to be one of the most horrific and disgusting manifestations of the racism of the past.  I find what is happening now no less horrific or disgusting.

There’s also another reason this is on the national radar.  And it has nothing to do with race.  I’ll let my favorite leftist hack columnist at the New York Times lay it out for you:

Florida’s now-infamous Stand Your Ground law, which lets you shoot someone you consider threatening without facing arrest, let alone prosecution, sounds crazy — and it is. And it’s tempting to dismiss this law as the work of ignorant yahoos. But similar laws have been pushed across the nation, not by ignorant yahoos but by big corporations.

If you are inclined to want to see guns controlled or banned and citizens required to flee any sort of confrontation vs. defending themselves, Paul Krugman is right there with you and has the goods on this now “infamous” law.

Except, as usual, it is a mish-mash of half-truths and innuendo cobbled together to make you think that corporate America is actually the villain in all of this.

We talked about this case on the podcast last night.  What is going on right now is all too predictable.  And it again points out how polarized this country is.  And it isn’t getting less polarized.

Final thought.  As I recall, President Obama was supposed to be the “post-racial” President, or that was his claim.  Yet he has inserted himself in two local incidents that I know of (the Skip Gates incident being the first) and inflamed the incidents with his remarks.  That, my friends, is not leadership. 

But then, he’s not a leader, and those of us who have actually been in leadership positions in our lives have known that from the beginning.   Instead he has difficulty denying his liberal roots and not succumbing to their siren call.

He’s an agitator.  And, as usual, he’s stepped in on something he should have stayed out of and made it far worse.  Inserting himself has given impetus, cover and justification for the Frarrakhans, Lees, Jacksons, Sharptons and the New Black Panthers to do what they’re doing.  Instead of calming the waters and talking about trusting the legal system and letting it do its work, he’s done exactly the opposite.

Congrats, Mr. Prez.  If anything happens to Zimmerman, you’re on the hook too as far as I’m concerned.

~McQ

Twitter: @McQandO


5th Circuit rules guns aren’t “property-like”

The war against private property proceeds apace with the 5th US Circuit Court of Appeals deciding that while you have a right to keep and bear arms, that right doesn’t extent to you keeping or bearing a particular arm.  Check out how the AP professionally and reports this in an unbiased manner:

A federal judge correctly dismissed a lawsuit against the city of New Orleans by a man who claimed that local law-enforcement authorities violated his constitutional right to bear arms, a divided panel from the 5th U.S. Circuit Court of Appeals ruled Wednesday. With the backing of the American Civil Liberties Union of Louisiana, Errol Houston Jr. sued after the Orleans Parish district attorney’s office refused to return a registered gun that police seized when he was arrested in 2008 on drug and firearms charges that were later dropped.

Emphasis mine.  “Correctly”?  No opinion injected there, huh?

At least one judge didn’t share that opinion on the panel.  But back to the majority point:

U.S. District Judge Jay Zainey dismissed the claims in December 2010, saying Houston failed to allege sufficient facts to show how authorities violated his right to bear arms by retaining his pistol.

In its majority opinion, a three-judge panel from the 5th Circuit said some regulation of firearms falls outside the reach of the Second Amendment, just as obscenity and defamation aren’t protected as free speech by the First Amendment.

"The right protected by the Second Amendment is not a property-like right to a specific firearm, but rather a right to keep and bear arms for self-defense," Judge Rhesa Hawkins Barksdale wrote.

Emphasis mine. Well how the hell do you do that if you don’t enjoy a right to property, i.e. the right to the freakin’ gun necessary to exercise the right?

Imagine the police setting up a roadblock and confiscating all weapons while telling you that you’re still entitled to your 2nd amendment rights, just not the right to this particular gun for whatever reason they choose to invoke?

Seems to me the 5th Circuit would endorse that.

The dissenting judge wrote:

In her dissenting opinion, however, Judge Jennifer Walker Elrod said she disagrees with the majority’s conclusion that the Second Amendment doesn’t protect an individual’s right to a specific firearm unless the government has prevented that person from acquiring others.

Elrod argued the majority impermissibly treated the Second Amendment as a "second-class right" by carving out an exception.

"It is particularly unfortunate for our circuit to endorse the atextual, ahistorical rule that the Second Amendment does not protect particular firearms," she wrote.

More importantly, this is government deciding it can violate the property rights of a gun owner whenever it wishes too with no penalty for doing so. This isn’t a 2nd amendment case.  It’s a property rights case.

Remember my “hypothetical” about the traffic stop above.  It’s not too far off the mark:

Houston sued the city, District Attorney Leon Cannizzaro and former Police Superintendent Warren Riley in July 2009, nearly a year after Cannizzaro’s predecessor dropped the charges against him stemming from a traffic stop.

Houston claimed Cannizzaro’s office had a policy of retaining firearms following arrests regardless of whether charges are filed. During an interview in 2009, Cannizzaro said his office decides on a "case by case basis" whether to return confiscated guns.

"There is no policy that we will not return weapons," he said.

Screw your policy or lack there of.  The point is, Mr, Cannizzaro, you have no right to keep it.  Keeping it is theft and a violation of the owner’s property rights, plain and simple.

For once, I’m with the ACLU  … appeal this.  This is a gross miscarriage of justice.

~McQ

Twitter: @McQandO


Concession prices too high at theaters? Then don’t buy them

But suing to make the theaters reduce the price?  Really?

Joshua Thompson loves the movies.

But he hates the prices theaters charge for concessions like pop and candy.

This week, the 20-something security technician from Livonia decided to do something about it: He filed a class action in Wayne County Circuit Court against his local AMC theater in hopes of forcing theaters statewide to dial down snack prices.

"He got tired of being taken advantage of," said Thompson’s lawyer, Kerry Morgan of Wyandotte. "It’s hard to justify prices that are three- and four-times higher than anywhere else."

I usually don’t go to movies. Believe it or not, since I’ve gotten older, I’ve begun to get motion sickness in a theater if there is a lot of action on the screen.  It’s weird but that happens to me (also happens with first person shooter games). 

But, when I did go, I never went to the concession stand.  I agree with Thompson, prices are too high and I’m not willing to pay them.  However, I’m also not willing to use the force of government to “force” prices down, for heaven sake.

The way consumers make this point is to quit buying the stuff.  Yeah, it takes will.  It takes perseverance.  It takes a collective action over time.  But what it should never take is bringing government in to it.

The suit accused AMC theaters of violating the Michigan Consumer Protection Act by charging grossly excessive prices for snacks.

The suit seeks refunds for customers who were overcharged, a civil penalty against the theater chain and any other relief Judge Kathleen Macdonald might grant.

So who gets to decide what is a fair price?  A judge?  Or the consumer?   How does the consumer decide what a “fair price” is?  By not paying what he or she considers to be an unfair price.  That’s how.  Not by going to the state and attempting to use its power to force a lower price.

No one forces anyone to go to a movie, pay what they’re asking or eat their snacks.  Everyone of those is an individual decision and choice. Just as we decide not to buy other products we can’t afford or think are priced too high, it is up to us to make the same sort of decision at a theater concession stand.   If enough refuse to buy, it will eventually come to the attention of the theater chains.  That’s how pricing is set by markets (you know, all that talk about pricing signals and such?).  And the state has no business being involved in that system whatsoever, either legislatively or judicially (and the law suit probably won’t go anywhere, I understand that, but I’m addressing the mindset).

~McQ

Twitter: @McQandO


Why protectionism equals crony capitalism

The invaluable Warren Meyer at Coyote blog (one of my all time favs) has a great article up on protectionism and why its something we should be avoiding.

President Obama used a lot of his state of the union address again teeing up what sounded to me like a new round of protectionism.  Protectionism is the worst form of crony capitalism, generally benefiting a handful of producers and their employee to the detriment of 300 million US consumers and any number of companies that use the protected product as an input.

The example he uses?  Sugar.  What industry does it protect and subsidize in the end?  The producers of high fructose corn syrup (HFCS).   And what does the government tell us about HFCS?

It’s bad for us.  Sugar would be preferable.

So why do we continue to use it in place of sugar?  Protectionism.  Look at the chart he includes:

 

sugar-500x400

The chart says it all.  With the tariff added, look at the average US cost of sugar vs. the world’s average cost.

As Meyer points out though, that’s not how this gets spun:

Food activists on the Left often point to the use of High Fructose Corn Syrup (HFCS) as one of those failures of capitalism, where rapacious capitalists make money serving an inferior product.  But HFCS resulted from a scramble by food and beverage companies to find some reasonable alternative to sugar as the government has driven up sugar prices through a crazy tariff system that benefits just a tiny handful of Americans, and costs everyone else money.

Yup, the usual, convenient and usually wrong whipping boy – “market failure”.

When a tariff is involved, you’ve just moved out of the realm of real capitalism and into the realm of crony capitalism.  This has nothing to do with markets failing.  This has to do with the usual – government intrusion using their monopoly power of force which then distorts a market and causes users of the product whose price they chose to artificially inflate with a tariff to seek lower cost alternatives.

Remember, the same government that is claiming HFCS isn’t good for you is the one that’s also made it impossible to use a product that it claims is better for you (in relative terms of course):

Meyer:

For the last 10 years or so, HFCS-42 has actually traded at a price higher than the world market price for sugar, but lower than the US price for sugar.   There is a lot complexity to prices, but this seems to imply that HFCS would not be nearly as attractive a substitute for sugar if US sugar tariffs did not exist (not to mention subsidies of corn which support HFCS).  This can also be seen in the fact that HFCS has not been used nearly so often as a sugar substitute in markets outside of the US, even by the same manufacturers (like Coke) that pioneered its use in the US.

Or, if markets had been left alone, all indications are we’d be using lower cost sugar right now.

Meanwhile the government protects and subsidizes an industry that makes a product it says is worse for you .

Make sense?

~McQ

Twitter: @McQandO


More Law vs. Constitutional Rights

Interesting case.  And I lean toward the side which says doing what is ordered amounts to self-incrimination which the 5th Amendment is designed to prevent.

American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files, a federal judge in Colorado ruled today in what could become a precedent-setting case.

Judge Robert Blackburn ordered a Peyton, Colo., woman to decrypt the hard drive of a Toshiba laptop computer no later than February 21–or face the consequences including contempt of court.

I’m not sure, in her case, what they’re looking for, not that it matters particularly.  We again have technology in the focus and its use being ruled on by the court.  The question is, does such an order violate the defendants right to refuse self-incrimination by unlocking data which has the possibility of incriminating her.

Today’s ruling from Blackburn sided with the U.S. Department of Justice, which argued, as CNET reported last summer, that Americans’ Fifth Amendment right to remain silent doesn’t apply to their encryption passphrases. Federal prosecutors, who did not immediately respond to a request for comment this afternoon, claimed in a brief that:

Public interests will be harmed absent requiring defendants to make available unencrypted contents in circumstances like these. Failing to compel Ms. Fricosu amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers to obtain such evidence through judicially authorized search warrants, and thus make their prosecution impossible.

I certainly understand the import of that claim.  And it is a valid point.  But is it something which over rides the protection of the 5th Amendment?  In my opinion, this is not at all as clear as the 4th Amendment case below.  I’m not sure, however, one explains away the fact that decryption may indeed incriminate the person required to do the decrypting. 

For instance:

[A] Vermont federal judge concluded that Sebastien Boucher, who a border guard claims had child porn on his Alienware laptop, did not have a Fifth Amendment right to keep the files encrypted. Boucher eventually complied and was convicted.

On the other hand:

In March 2010, a federal judge in Michigan ruled that Thomas Kirschner, facing charges of receiving child pornography, would not have to give up his password. That’s "protecting his invocation of his Fifth Amendment privilege against compelled self-incrimination," the court ruled (PDF).

The government argues:

Prosecutors tend to view PGP passphrases as akin to someone possessing a key to a safe filled with incriminating documents. That person can, in general, be legally compelled to hand over the key. Other examples include the U.S. Supreme Court saying that defendants can be forced to provide fingerprints, blood samples, or voice recordings.

The defense argues:

On the other hand are civil libertarians citing other Supreme Court cases that conclude Americans can’t be forced to give "compelled testimonial communications" and extending the legal shield of the Fifth Amendment to encryption passphrases. Courts already have ruled that that such protection extends to the contents of a defendant’s minds, the argument goes, so why shouldn’t a passphrase be shielded as well?

There you have it.

Opinions?

~McQ

Twitter: @McQandO


What part of the 4th Amendment does law enforcement not understand?

I don’t know about you, but this seems such a clear thing to me.  If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first.  See 4th Amendment:

The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

[…]

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Specifically:

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).

The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous. 

When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”

Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”

Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.

Ok, get a freaking warrant first. 

What this decision does is uphold a Constitutional right that has been under assault for quite some times.   The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring.  The watchword for LEOs should be “when in doubt, get a warrant”.  And live by the document you’ve sworn to uphold and defend.

~McQ

Twitter: @McQandO


SOPA/PIPA dead … for now

But most attempts to limit freedom tend to be like zombies – even dead they tend to end up walking among us again at some future time.  But until then, good news:

House and Senate leaders abandoned plans to move on SOPA and PIPA on Friday — the surest sign yet that a wave of online protests have killed the controversial anti-piracy legislation for now and maybe forever.

SOPA sponsor Lamar Smith, the Republican chairman of the House Judiciary Committee, said his committee won’t take up the bill as planned next month — and that he’d have to “wait until there is wider agreement on a solution” before moving forward.

Apparently even within the halls of Congress, where given some of the decisions that are routinely made would make one question the amount of oxygen in the air, they appear to have figured this one out.  Oh, and it is an election year. [head slap]

But don’t get too excited … they’ll be back in some form or fashion.  Instead of doing the hard work necessary to create law that will protect intellectual property rights while not being overly broad and draconian, these zombies will simply change clothes, get new names and be back in another session.

Cynical?

Just watch.

~McQ

Twitter: @McQandO


The Health Care Czar speaks – “free” contraception for all!

Yes, Czar Kathleen (Sebelius, Czar Secretary of Health Care HHS and the final arbiter of all things ObamaCare) has declared that your insurer will now, without compensation or charge, do the following:

The Obama administration said Friday that health insurance plans must cover contraceptives for women without charge, and it rejected a broad exemption sought by the Roman Catholic Church for insurance provided to employees of Catholic hospitals, colleges and charities.

You may take a knee in thanks. Said Czar Kathleen:

“This rule will provide women with greater access to contraception by requiring coverage and by prohibiting cost-sharing,” Ms. Sebelius said.

Because, you know, the devices and services are delivered by magic fairies and don’t cost anyone anything.

No wonder Obama chose Disneyland as the venue for his speech yesterday.

The religious question aside, where in the world does this bunch get off deciding I have to pay for someone else’s contraception?

Because that’s what is going to happen … the bill, just like taxes to corporations, is going to find its way into my premium in some form or fashion (TANSTAAFL). 

The order is an administration interpretation of this:

The 2010 health care law says insurers must cover “preventive health services” and cannot charge for them.

“Preventive health services”.  Wow … how broadly can that be interpreted.  Well, broadly enough to include contraception as a “preventive health service” I suppose.

Which means, I assume, that the sky is the limit.  Creative interpretation is only limited by … not much, huh?

We have a czar.  She has an agenda.  She is the final, unaccountable “decider”.

What could possibly go wrong with that?

~McQ

Twitter: @McQandO

1 ... 3 4 5 6 7 ... 19
michael kors outlet michael kors handbags outlet michael kors factory outlet