Thursday, January 22, 2015

Null Set

If Mike Huckabee really wants to be president, he needs to learn the basics of how our government works.

“If the courts make a decision, I hear governors and even some aspirants to the presidency say well, that’s settled, and it’s the law of the land,” he said. “No, it isn’t the law of the land. Constitutionally, the courts cannot make a law. They can interpret one. And then the legislature has to create enabling legislation, and the executive has to sign it, and has to enforce it.”

According to Huckabee, the legislative branch would need to draw up legislation to legalize same sex marriage.

“This idea that a judge makes a ruling on Friday afternoon, and Saturday morning same sex marriage licenses are being given out, that’s utter nonsense, because there’s not been any agreement with the other two branches of government,” he said.

He’s right in that the courts cannot make a law.  They can, however, rule on whether or not a law is constitutional, and if it is not, they can invalidate it.  The law may still be on the books — I am pretty sure that there are states in the South that still have Jim Crow laws enshrined — but the court ruling makes them null and void.  That’s why we have courts like the Supreme Court, whose main job is to interpret the Constitution.

If the Supreme Court rules that various state laws and constitutional amendments that ban same-sex marriage violate the United States Constitution, the laws become unenforceable.  The states do not have to repeal them, but the folks who issue marriage licenses don’t have to obey it.

Funny, I didn’t hear Mr. Huckabee complaining about “judicial supremacy” when the Hobby Lobby or Citizens United ruling came down.

Friday, January 9, 2015

The Base Player

Sen. Marco Rubio (R-FL) is a graduate of the University of Miami School of Law, Class of 1996.  Someone should look into who taught him Constitutional law because they need to fire that professor.

On the matter of same-sex marriage in Florida, Mr. Rubio noted,

“I do not believe that there is a U.S. constitutional right to same-sex marriage,” Rubio told the media. “Now, as I’ve said before, states have a right to change their laws. I don’t believe it’s unconstitutional. I just don’t believe there’s a constitutional right to it.”

Okay, I’m not a lawyer and I didn’t go to law school like he did, but even I know history and that way back in 1967 — four years before Mr. Rubio was born — the United States Supreme Court held in Loving v. Virginia that the right to marriage — in that case between two people of different races — was a fundamental right.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

So, Mr. Rubio has it wrong on the concept of the constitutionality of marriage as a right and is apparently unaware of the precedent.  (I do hope that he’s not harboring the belief that people of different races shouldn’t marry.)  He also seems to lack the basic understanding that there is a difference between the laws that get passed or referenda that get tacked on to the state constitution and the rights we have as citizens.  Under our present form of government, we have a judiciary branch — co-equal with the legislative and executive — whose primary purpose is to decide whether or not the actions of the other branches are following the rules.  The courts exist to prevent the legislatures or the people from violating the law or taking away the fundamental rights of the people.

Mr. Rubio also seems to forget that the courts have overturned laws passed by Congress that I’m sure he’s glad they did: Citizens United, for one.  In his nascent plans to run for president, he’s probably thrilled that corporations have had their fundamental rights to pour money into a campaign, and I’m sure he’s going to take advantage of it.

What’s happening is that Marco Rubio is trying to outflank his fellow Floridian and mentor Jeb Bush in cornering the market on right-wing nutsery, and bashing marriage equality and the LGBT population is his way of doing that.  As I’ve noted before, he has yet to come up with a reason to oppose marriage equality that isn’t based on bigotry, discrimination, and intolerance.  But that’s what sells to the Republican primary voters, and no one ever lost an election by pandering to the basest base.

Wednesday, January 7, 2015

Tuesday, January 6, 2015

Thursday, December 18, 2014

Monday, December 15, 2014

Legal v. Moral

Justice Antonin Scalia told a Swiss radio interviewer that the Constitution doesn’t explicitly prohibit torture.

The 78-year-old justice says he doesn’t “think it’s so clear at all,” especially if interrogators were trying to find a ticking nuclear bomb.

Scalia says nothing in the Constitution appears to prohibit harsh treatment of suspected terrorists.

The Constitution doesn’t explicitly prohibit the mass murder of school children with assault rifles, either, yet I’m pretty sure that the people who wrote it were not in favor of it.  The Eighth Amendment does rule out “cruel and unusual punishment,” but to Justice Scalia, “rectal feeding” must be neither.  Okay….

Even if you accept his reasoning, just because something is legal doesn’t make it right.

Wednesday, December 10, 2014

On One Condition

I’m all in favor of the proposal put forward by Anthony D. Romero of the ACLU to grant a presidential pardon to George W. Bush, Dick Cheney, and the rest of the gang that authorized and facilitated torturing people.  Make it a full and free pardon, too, and make sure that they take it without coercion or threat.  They don’t even have to confess to the crimes or admit guilt; by accepting the pardon, they’re doing that anyway.

The only condition I’d impose is that they leave the country.    They can take their wives and families; they can even keep their pension.  Just get out and go somewhere far, far away and never come back.  (How about Uruguay; I hear they’re taking prisoners from Gitmo.)

Let the banishment fit the crime.

Monday, December 1, 2014

Silent Killers

Via the Guardian:

Republican lawmakers in Ohio are rushing through the most extreme secrecy bill yet attempted by a death penalty state, which would withhold information on every aspect of the execution process from the public, media and even the courts.

Legislators are trying to force through the bill, HB 663, in time for the state’s next scheduled execution, on 11 February. Were the bill on the books by then, nothing about the planned judicial killing of convicted child murderer Ronald Phillips – from the source of the drugs used to kill him and the distribution companies that transport the chemicals, to the identities of the medical experts involved in the death chamber – would be open to public scrutiny of any sort.

Unlike other death penalty states that have shrouded procedures in secrecy, the Ohio bill seeks to bar even the courts from access to essential information. Attorneys representing death-row inmates, for instance, would no longer be able to request disclosure under court protection of the identity and qualifications of medical experts who advised the state on their techniques.

“This bill is trying to do an end run around the courts. When things aren’t going well, the state is making its actions secret because they don’t want people to see them screwing up,” said Mike Brickner, senior policy director of the American Civil Liberties Union (ACLU) in Ohio.

The way they’re going about this, you would think that they’re somehow ashamed of what they’re doing; as if they know that killing someone is wrong even if the convict is the worst criminal in their jails.

If they were so sure that what they were doing was right, they’d open the records, let everyone know exactly how they’re doing it, and perhaps even put it on TV.  That would reveal capital punishment in its truest sense: state-sanctioned revenge, and it might be a deterrent, not just some way of getting rid of the excess prison population.

HT to FC.

Tuesday, November 25, 2014

No True Bill

Via TPM:

Friday, November 14, 2014

Monday, November 10, 2014

Full and Fair Consideration

In a rational world, there should be no reason that Loretta Lynch shouldn’t be confirmed right away as the next Attorney General.  After all, she’s been through Senate confirmation twice before, and as Steve Benen points out, she was approved unanimously.

Ah, but the trick is I said “in a rational world,” and that excludes the whacky world of the GOP and Sen. Ted Cruz.

The junior senator from Texas opined that her confirmation should wait until after the new Senate is sworn in in January because it would be totally wrong to confirm any cabinet position during the lame duck session.

President Obama’s Attorney General nominee deserves fair and full consideration of the United States Senate, which is precisely why she should not be confirmed in the lame duck session of Congress by senators who just lost their seats and are no longer accountable to the voters.

But that rule only applies to Democratic presidents.  In November 2006, after the Republicans lost a lot of seats in the midterms, President Bush fired Defense Secretary Donald Rumsfeld and appointed Robert Gates to replace him.  He was confirmed 95-2 in December 2006; long before the new Senate was seated.  As far as the Constitution is concerned, the new Senate doesn’t get to work until January 2015.  It’s not like the current one went out of business on November 5.  (Well, at least technically it didn’t; it’s had the lights out for the last four years as far as getting anything done is concerned.)

I suspect that Mr. Cruz’s objection is merely a delaying tactic until the new Senate is seated, but for the life of me I can’t fathom any other reason that a black woman appointed by a black Democratic president would face any trouble being confirmed by a GOP majority-led Senate, can you?

Tuesday, October 28, 2014

That Suit Is Out Of Style

Remember the lawsuit the Republicans were going to file against President Obama for not implementing a part of Obamacare that they wanted to repeal in the first place?  Whatever happened with that?

Well, there seem to be three answers for why Boehner’s lawsuit is trapped in limbo. The first is that they never actually intended to follow through with the suit and that this was all a pre-election stunt intended to motivate the GOP base and mollify impeachment-crazy conservatives. That’s difficult to demonstrate conclusively, but it’s a satisfactory explanation for the utter lack of progress on the suit four months after its heavily hyped debut.

The second is that Republicans were actually going to file the suit, but started having second thoughts as the legal rationale fell apart and political embarrassments piled up. Key Republicans broke with Boehner by arguing that asking the courts to intervene in a separation-of-powers conflict was not the best solution, and that Congress’ best answer to executive overreach was to actually pass legislation. When the House Rules Committee held its hearing on the merits of the suit, it was discovered that one of the experts Republicans called to testify in favor of suing had previously argued unequivocally that Congress lacks standing to sue the White House.

As for the legal rationale for Boehner’s proposed action, the suit was considered a wild long shot even before the House voted to authorize it, and since then it’s only faced more and more setbacks. The most recent was turned up by Constitutional Accountability Center attorneys Simon Lazarus and Elisabeth Stein, who found a Congressional Research Service report from September that, in their view, leaves zero doubt that Boehner’s suit has no legal merit:

Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report’s bottom line is clear: not merely are the legal underpinnings of the Republicans’ planned lawsuit weak; the report turns up no legal basis – no “there” there – at all.

Translation: Never mind.

Monday, October 27, 2014

Law School

Via Steve Benen’s weekly feature “This Week In God” comes the news that Alabama has a proposed state constitutional amendment what would ban “the application of foreign laws” that might violate the state or federal constitution.

Although they don’t specify what “foreign laws” are the focus, we all know they’re talking about Sharia law.

This isn’t just about prohibiting “the application of foreign laws”; this is about anti-Muslim paranoia. In recent years, the threat of “creeping Sharia law” has been common in right-wing circles – it was even an element of Newt Gingrich’s 2012 presidential platform – and now Alabama voters are being asked to change their state Constitution to enshrine that paranoia into law.

There’s a little problem with this amendment aside from the fact that it’s couched in religious bigotry.  By not going full-tilt anti-Muslim in the text and winking at it by saying “foreign laws,” they open themselves up to some unintended consequences.

Remember Judge Roy Moore?  He’s the Alabama Supreme Court chief justice that got himself some shameless self promotion by insisting on having the Ten Commandments posted in his courtroom.  After that ended badly for him, he planted a stone marker the size of a washing machine on the courthouse lawn with the commandments carved into them.  He was standing up for the law that he claims should be the basis for all the laws in America.  However, legend has it that the Ten Commandments were written down by a Jewish guy who was born and raised in Egypt and spent the rest of his life in the Middle East.  Never made it to the United States and missed participating in the drafting of the United States Constitution by a few thousand years.  So they would fall under the definition of “foreign laws.”

Not only that, the basis of American laws and our legal system including trial by jury and the presumption of innocence come from the English legal tradition.  We’re not talking about the language they are written in (even though they do throw around a lot of Latin); we’re talking about the country of England: home of the Magna Carta, also a foundation of our laws, and the people we fought two wars with to keep them out of America.  Sounds pretty foreign to me.

So if the people of Alabama are bound and determined to excise “foreign law” from their legal system in an effort to keep out Sharia, they’ve got their work cut out for them.

Tuesday, October 7, 2014

Now What, Florida?

Florida Attorney General Pam Bondi has been fighting the rulings on marriage equality in the state and waiting for the Supreme Court to do something.  They did.  Okay, Ms. Bondi, over to you.

The decision arrived at an awkward moment for Florida Attorney General Pam Bondi, whose office has filed appeals in several suits challenging the state’s ban.

Immediately after the Supreme Court issued its orders, Bondi faced renewed pressure from gay marriage advocates to drop those appeals. She was already scheduled to appear on a televised debate with her opponent in the November election, who quickly added his voice to the chorus of critics.

“My office, this just came out less than three hours ago, will be reviewing that, see what happens next, there are a lot of other cases in the pipeline,” Bondi said during the debate aired on Bay News 9. “What I’ve always said is that the court must decide this — we need finality from the judiciary.”

Translation: Hamana hamana hamana.

You wanted finality?  You pretty much got it.

The one wrinkle that could come is that the 11th Circuit Court in Atlanta, which is hearing the case of a couple in Tallahassee, could rule next year.

Filed in March, the Brenner case is the furthest along of any of the legal challenges filed in federal court in Florida, and is the first of its kind to reach the 11th Circuit, which also has jurisdiction over Alabama and Georgia.

The plaintiffs are a gay couple who married in Canada in 2009 before moving to Tallahassee, where their marriage license was about as useful as snow shoes.

Gay marriage advocates expect the 11th Circuit to decide the Brenner case in early 2015. Assuming it is appealed, they are optimistic it will travel the same path laid Monday by the Supreme Court, an expedited journey that could bring gay marriage to Florida a year from now. If this happens, bans in Alabama and Georgia would likely topple as well.

Still, there is no guarantee that the 11th Circuit, known for being conservative, would strike down Florida’s ban. If it upholds the law, becoming the first federal appeals court in the country to do so, it could provide the Supreme Court an opportunity to step in to resolve conflicting rulings.

Given yesterday’s punt, it is unlikely that the Supreme Court will even take the case, and if they do, rule in favor of the defendant.  They will be drowned out by wedding bells.

Tuesday, September 9, 2014

Good Question

Read this piece by Digby at Salon about the utter depravity of Justice Antonin Scalia and his views on the death penalty, including his approval of killing innocent people because the justice system failed, and then ask yourself why we allowed this alleged human being to hold a position of power in our society.

Citizens United Amendment Advances

A pleasant little surprise via TPM:

A Democratic-led constitutional amendment to overturn Citizens United and subsequent rulings loosening restrictions on money in politics moved forward in the Senate on Monday evening.

The procedural vote was 79 in favor, 18 against.

The vote means the Senate can begin debate on the measure. But it is highly unlikely to ultimately pass the chamber as it faces fierce Republican opposition. It would need to clear another 60-vote threshold in order to end debate and come to a final vote. And that final vote would require the support of two-thirds of senators to succeed.

The measure, proposed by Sen. Tom Udall (D-NM), would restore the legal right of Congress to establish campaign spending limits. Approved by committee on a party line basis in July, it is one of several pre-election votes Senate Democrats are planning in an attempt to highlight the contrast between the two parties before Americans head to the polls.

It has zero chances of passing, but at least they’re going to talk about it, and it will get the Republicans to tell us exactly why they believe that corporations are people, my friend.

They will claim that it re-writes the First Amendment, which is bullshit.  The amendment gives Congress the power to regulate campaign finance.  It does not itself regulate campaign finance.  And it has a clause that specifically states the amendment does not change the First Amendment.  But the big money backers of the GOP will pull out all the stops, so this amendment will have the lifespan of a spider on a hot griddle.

Friday, September 5, 2014

Slammed Into Reverse

Back in July two federal courts handed down rulings on the federal subsidies in Obamacare.  A court in Richmond ruled that they were permissible, as anyone with a reading comprehension skill beyond Grade Six could tell you.  This happened two hours after a two of three judges on a D.C. court pulled a ruling out of their ass and said that subsidies were not permissible.

Not surprisingly, the second ruling sent the righties such as Ted Cruz into paroxysms of delight, gleefully predicting the death of Obamacare.  But yesterday the D.C. court abruptly reversed itself and withdrew the ruling — basically saying “Never mind!” — and the full court will now hear the case.

This is very good news because it is very likely that the full court will rule that subsides for Obamacare are legal since they are mostly Democratic appointees and well versed in the law.  That means that it’s unlikely that the U.S. Supreme Court will hear the case since they rarely take cases where federal courts are in agreement on an issue.  As far as they’re concerned, it’s settled law.

Thursday, August 28, 2014

Monday, August 18, 2014

Breaking Down and Escalating

The situation in Ferguson has deteriorated since last night.  There are reports of “coordinated attacks,” police are threatening news reporters, and the governor has called in the National Guard.

Missouri’s governor ordered the National Guard onto the streets of Ferguson early Monday after another night of violence following the shooting of an unarmed black teen by police. “Tonight, a day of hope, prayers, and peaceful protests was marred by the violent criminal acts of an organized and growing number of individuals, many from outside the community and state, whose actions are putting the residents and businesses of Ferguson at risk,” Gov. Jay Nixon said in a statement. “Given these deliberate, coordinated and intensifying violent attacks on lives and property in Ferguson, I am directing the highly capable men and women of the Missouri National Guard to assist … in restoring peace and order to this community.”

Meanwhile, the autopsy requested by the family of the man killed that started this situation has been released.  According to the report, he was shot six times, all shots hitting him in the front of his body.

One of the bullets entered the top of Mr. Brown’s skull, suggesting his head was bent forward when it struck him and caused a fatal injury, according to Dr. Michael M. Baden, the former chief medical examiner for the City of New York, who flew to Missouri on Sunday at the family’s request to conduct the separate autopsy. It was likely the last of bullets to hit him, he said.

Mr. Brown, 18, was also shot four times in the right arm, he said, adding that all the bullets were fired into his front.

The bullets did not appear to have been shot from very close range because no gunpowder was present on his body. However, that determination could change if it turns out that there is gunshot residue on Mr. Brown’s clothing, to which Dr. Baden did not have access.

I’m no crime scene expert, and watching reruns of Castle and CSI doesn’t make me one, but it the fatal shot struck him on the top of his head and he was over six feet tall, that suggests that he was neither running away from the police officer or even standing up.

A couple of days it seemed as if the situation was calming down.  Replacing the local police in heavy armor and artillery with the state police who walked among the citizens and talked to them as people seemed to be working.  Then the local police felt the need to release a video from a crime scene that was unrelated to the shooting but showed Mr. Brown as a criminal suspect in a robbery.  That inflamed the issue all over again because it made it look as if the officer that shot him was responding to the robbery when in fact he was not.

We are now back to where we were before cooler heads prevailed.  The National Guard is not a police force, they are a branch of the military.  How exactly will they restore “peace and order” in the community?