Friday, December 23, 2011

SOPA and PIPA- A dangerous overreach of federal power with far reaching consequences to freedom.

 What would you say if I told you that there was a bill winding its way through Congress with extensive support from members on both sides of the partisan political divide, with unamimous backing by hugely powerful Hollywood and Recording Industry Association lobbies that could address the serious problem of piracy on a global scale? (You know, where some Chinese scofflaws steal and mass produce for sale American music or movies with no compensation to the creators, or, perhaps closer to home, so called “bit torrent” sites which allow people to share and download songs and movies free of charge). What's wrong with that you'd probably say, right? (I mean, it goes without saying that piracy is a serious problem hurting American creators of “intellectual property,” as its called, particularly in the case of rogue international websites, which these bills purport to address).

But what would you say if I told you that the laws under consideration to do that, the so called “Stop Online Piracy Act” and “Protect IP Act's” (SOPA and PIPA respectively), that are currently winding their way through Congress allow private corporations and private interests, through the mere filing of a complaint with the federal government, to effectively censor or “seize” control of independently-created and run websites so as to make them appear as if they “didn't exist” by taking control of or diverting your ip address? (And for the technically challenged that stands for “internet protocol” address, the universal locator on the world wide web which tells your computer where to navigate to to get the required information you have posted, click here for more info on the technical aspects covered in prior posts). You'd probably do a double take and want to know a little more it; I mean, surely, this is all much ado about nothing! This is after all America, the land of the free and home of the brave, right?
Moreover, what if I told you the gov and/or these private organizations could do so without probable cause, a court order, or any advance notice? Sounds crazy, or Orwellian, or both, right? Well believe it or not, that is exactly what we're faced with from these two well-meaning but ill thought out pieces of legislation Well that's what this author initially thought. Unfortunately, you would be wrong as I was.

The problem with SOPA and PIPA is not that they fail to address real issues that need some address, they clearly do, (as piracy is a huge problem, especially involving offshore companies out of the United States jurisdiction to avoid enforcement of our piracy laws already on the books). The problem is the potential “chilling” and loss of First Amendment and Associational freedoms lost in the process.

In essence, these well meaning but overarching pieces of federal legislation use a jackhammer to kill a mosquito, and are seriously flawed as a matter of law as they place the burden for “proving” one's website is, in fact, lawful, (and after one's independent website is shut down and free speech rights stifled).

Such concerns have brought together a myriad of organizations to advocate in the public interest to defeat these laws; indeed, no doubt many of you have seen or heard something regarding them from such diverse websites and organizations as Google, Craigslist, the American Civil Liberties Union and the American Center for Law and Justice, (no relation to this organization), all of whom oppose SOPA and PIPA too. And while there are far more detailed explanations of these pieces of legislation other places, such as HERE, and HERE, (many in more detail and with expertise I no longer have the luxury of devoting to such matters, as a simple google of the topic will reveal), it does not take a degree in rocket science to know what is the right thing to do. In such matters, we take pride in informing our readers what we do know and help sound the alarm.

Accordingly, today we join with many other organizations-- some of which we have nothing in common politically except this desire for a less drastic and invasive response to the problem of piracy that adheres to the spirit of our laws and Constitution-- in calling for Congress to scuttle this well meaning but overreaching legislation in favor of much less invasive alternatives, (such as the bill proffered by Congressional watchdog and Congressmen Darryl Issa, click here for details).

And though we admittedly lack the time (or budget) for an exhaustive examination of the language of these controversial pieces of legislation as is my wont and I used to do in the early days of this fledging enterprise, (just click on previous, older, posts), it is enough to know that we have looked into the expressed concerns sufficiently to see if they are mere hype about scofflaws and college students intent on saving a little money by downloading a few pirated songs and have found more than ample evidence to indicate that they are not.

Indeed, in the ACLP's humble opinion, SOPA and PIPA represent and real and present danger to First Amendment freedoms and constitutional rights of association of all citizens.

What concerns us most about this legislation is that, as alluded to above, corporations and/or the justice department on their behalf can, in stark contrast to usual constitutional principles requiring probable cause or at least some judicial preview first, to be able to singlehandedly shutter almost any or all of a bloggers or organization's website without regard to whether the blogger or organization is actually aware of the copyright infringing/piracy activities and without regard to whether that particular portion of the website is the offending part. In essence it's a “guilty before proven innocent” approach in which, although you might be entitled to request a hearing and/or appeal such draconian action afterwards, in the interim you are completely shut out of reaching your customers and/or audience.

Now I don't have to tell you that we are no fan of the current Administration's policies, especially when it comes to self-aggrandizing maximizations of power in itself. Indeed, whether on the issue of invading Libya without proper Congressional oversight and permission, the Fast and Furious scandal, the attempt to muzzle talk radio with the “fairness” doctrine, or the corrupt crony capitalism of the Pres and company evident in the Boeing or Solyndra affairs, we have time and time again pointed out the Obama Administration's penchant for maximizing its own power and authority at the expense of the American people; (in that regard we should point out that in some ways this sounds an awful lot, in another context, like the Administration's M.O. in attempting to deny Freedom of Information Requests and “pretend” like they don't exist.

And unlike some to the political right of us in the Tea Party, we don't start with the assumption that this blatant attempt to consolidate even more power in the Executive branch necessarily has anything to do with the fact that we are standing before what will undoubtedly be one of the most blatant political campaigns of political smear and disinformation from an Obama political attack machine against the GOP and their presidential challenger like none ever seen in the history of man, (although it certainly would make Obama's reelection effort easier if they could simply use SOPA and PIPA to click an “off” switch and shut down conservative critics at strategic points in the campaign, wouldn't it?)

To us, it is enough that the prospect and potential effects upon the small time non profit or independent web journalist like yours truly or the countless number of others who blog in the public interest would be devastating; Indeed, in that light these lawless “laws” run the very real and present danger of having an extraordinarily chilling effect on open communication and free speech which have become a hallmark of the cause of freedom against tyranny through the internet world wide. (Or, as unnamed influences in my life would say, “if it aint broke, why fix it?” lol).

Indeed, using SOPA and/or PIPA to “cure” the problem of piracy is a bit like fixing the problem of a mosquito with a sledgehammer; sure, you might temporarily solve the problem-- at least until a thousand more come through the hole you've just opened in your wall-- but the cure is clearly more deadly, and constitutionally dangerous, than the disease. jp  

Monday, November 14, 2011

Breaking! Supreme Court decides (formally) to review constitutionality of Obamacare law!

   The Supreme Court today decided to review the controversial crown jewel of the Obama Administration's domestic agenda, the controversial "Patient Protection and Affordable Care Act of 2010," (aka Obamacare).  In deciding to review the various decisions (and conflicts) that have been been handed down in various Courts of Appeal that have been perculating up the federal appellate system, (as we have been reporting here for quite some time), the high court also stated it intends to review the "severability" issue, (whether other portions of the law can survive if the "individual mandate" forcing individuals to buy insurance is struck down as an unconstitutional expansion of the so-called "commerce clause").  In making its decision to accept review of the divisive law, the High Court set oral arguments for March, (with a decision expected by June).  That gives the justices only a few short months to chew on, and craft, what will undoubtedly be a complex and potentially groundbreaking decision that some court observers are labeling the most important decision of the High Court in a century, and possibly in our lifetimes in its ability to change the fundamental structure of federalism and accordingly our very Republican form of governance.

   Indeed, a decision upholding the sprawling law could fundamentally alter the relationship between the states and federal government and result in absolutely no conceivable limit to the feds meddling in state affairs, (as several courts reviewing the law have already noted, see previous analysis of the ACLP HERE).   The ramifications are endless, (and this aside from the ruling likely coming smack dab in the middle of the President's campaign for re-election).

   For example, don't like broccoli?  Too bad, because using the virtually unlimited rationale used to uphold Obamacare by the appeals courts which have ruled in favor of it so far, the federal government could claim that not purchasing the healthy leafy vegetable could, in aggregate, effect the "interstate commerce" of the national "broccoli market," thus making its purchase (and consumption) by U.S. consumers vital to the economic health of the produce market of the nation and thus subject to federal regulations to force its consumption (or at least purchase) by American consumers under the interstate commerce clause of the Constitution.  Sound far fetched?  Why should it, when public dietary and health regulations in places like New York City are already regulating the extent to which restaurants can use things like salt and "transfats" in their menu, (in your best interest of course).   Indeed, extensive studies have shown the effect of obesity on the health of the nation's citizens (and obesity-related disease), costing the nation's health system billions of dollars accordingly.  And in true Obama-care justifying fashion, if this can be shown to effect the interstate health care market "in the aggregate," (which undoubtedly studies will be produced showing it does), why does it seem far fetched that the federal government could continue its power grab over private conduct under the guise of the effect on the "national health market" in the same way as is used to justify the Obamacare law itself?  Then one must ask, what next?

    Like your safe and comfortable SUV?  Well, your gas-guzzling Escalades and church vans could harm the national "pollution market" in a "cap and trade" pollution regime the Administration has already voiced its support of-- and would have passed were it not for a razor thin margin in the U.S. Senate and pressure from moderate democrats facing tough re-election prospects at home and rising anti-obama fervor in the more conservative South and Midwest which has been clobbered with job losses and home foreclosures-- thus effecting "interstate air quality" and potentially justifying legislation banning the purchase of such vehicles.  Again, sound far fetched?  Not really, at least philosophically.  I mean, if the federal government can force people to take action vis a vis buying something so personal as health insurance, (and regulate the entire health industry in the process), the list of seemingly "acceptable" products and activities (or "non-activities") they can regulate under the commerce clause is truly endless, (never mind that the same is in stark contradiction to the axiom of "limited and enumerated powers" that our federal constitution was based upon at our Republic's founding).  In short, though it may sound corny when stated out of context or mocked by the progressive political left that makes up the heart of our media and academic centers of power, our very liberty and form of government could be at stake.

  We will have more to write re: this in coming days, (and see our coverage of breaking news flashes on Twitter).  In the meantime it seems all but certain that we (and soon the nation's highest court), will be discussing (and grappling with) this law for quite some time to come.  jp

Sunday, November 13, 2011

GOP 'foreign-policy' primary debate in S.C. yields no clear-cut winner, policy differences

The Republican Presidential primary debate last night at Wofford College in South Carolina yielded less bombast than some debates have between the candidates and no clear winner, although clear policy differences did emerge.

The debate, intended to revolve around foreign policy issues, for the most part did so, allowing a rare glimpse of the views of candidates such as frontrunner Herman Cain, whose ranking in the polls had shot up to rival frontrunner Mitt Romney's but has since slumped on news of sexual harassment claims against him in the '90s when he led the American Restaurant Association in Washington, D.C. (see new poll here).

Other than some initial confusion over response times in which the moderator attempted to cut off an answer by presumed frontrunner Mitt Romney, (ultimately resulting in an apology to Romney who had insisted, and got to, finish his answer), and a somewhat confusing half-live half- internet broadcast format, the debate was a productive one that provided many clues as to how the various candidates might conduct the foreign-policy of the nation were they to be elected President. A recap of some of the key questions asked, and how the candidates responded to them, is as follows:

On the critical issue of keeping a “military option” on the table in order to prevent Iran from gaining nuclear weapons, (see recent report of the IAEA on this issue here), most all of the Republican candidates, with the exception of Huntsmen and Ron Paul, agreed that the U.S. needed to do “whatever was necessary” up to and including a military strike to take out Iran's nuclear capabilities.

Cain's position was nuanced and seemed to want it both ways, stating he favored a missile defense shield and would “strategically use” America's fleet of Aegis Destroyers to sit off the coast of Iran and counteract any nuclear Ballistic Missiles they might launch, (while falling short of any pledge to launch a military strike directly on Iranian nuclear facilities).

Former speaker of the House Newt Gingrich stated flatly it was “unacceptable” to allow Iran to join the nuclear club with its open support of terrorism worldwide and that if American support for “maximum subversive activity” within Iran didn't bring down the radical, totalitarian regime then America must as a last resort retain the option of using military force to end the regime's nuclear ambitions.

Governor Rick Perry, struggling to re-gain the momentum he possessed upon his initial entrance into the race before a series of poor debate performances and gaffes belying a seemingly week position on illegal immigration and other issues of importance to primary GOP voters, stated that unilateral U.S. financial/ regulatory action could “collapse the Iranian federal reserve today” sufficient to bring about the regime's demise if the “American people would stand and demand”/hold President Obama's feet to the fire” on the issue (get exact quote).

Asked about whether waterboarding of terror suspects constituted “torture,” candidate Herman Cain at first agreed, but then, choosing his words carefully, seemed to backpedal into the more mainstream view among Republicans that the so called “enhanced interrogation techniques” of the Bush Administration, which some have credited partly with the capture/killing of Osama Bin Laden in Pakistan, is something he supported and would re-institute if elected President.

As far as the others, candidates Romney, Perry, Gingrich and Bachman all supported enhanced interrogation to yield crucial military intelligence in the war on terror, while candidates John Huntsman and Ron Paul remained opposed, (with the Texas Congressmen and veteran bombthrower Paul stating unequivocally that “waterboarding is torture” and expressly citing U.S. and “international law” in defense of his stance on the issue). In line with his long held beliefs Paul also emphasized the need for Congressional approval of any military action and stated “I am afraid that this kind of talk sounds a lot like the war propaganda we heard leading up to the Iraq war,” (Mr. Paul previously stated at the Michigan debate on 11/9/2011 that his favored approach to the radical Iranian regime would be “how about extending friendship instead of all this talk of war?”

When it came to the question of whether it was o.k. to kill American citizens overseas without a trial who are suspected of engaging in terrorist acts against the United States, (such as Khaleid Sheikh Mohammed), the candidates again broke ranks with Perry, Bachman, Romney and Gingrich in favor and Paul and Huntsman opposed.

Former speaker Gingrich again provided perhaps the strongest rationale in support of the bold idea that those who had engaged in terrorism against their own government had “removed themselves” from constitutional protection and received all the process due them. (Of course, whether the debate properly should revolve around the “enemy combatant” status of such individuals, where they are located at the time of such attacks, or around their status as American citizens is a matter of hot dispute legally, and one which we feel the format of one minute answers in a debate context hardly does justice to, nevertheless we remain committed to reporting the news as it unfolds and as we see it).
On the issue of the early pullout of American troops from Afghanistan and Iraq by the end of 2012 that President Obama has already announced, Romney was pointed in his criticism, stating that to do so irresponsibly “telegraphed our intentions to the enemy” and moreover resulted in “withdrawing in the middle of the 2012 fighting season,” thus endangering the mission and hard-fought American gains, with which Perry, Bachman and Gingrich agreed, while Huntsman and Paul expressed agreement with the President's decision to withdraw from the theater immediately.

On the issue of trade and China, Perry, Bachman, Romney and Gingrich all supported sanctions and/or some form of “get tough” treatment to deal with China's currency manipulation and intellectual and corporate theft of American industry, with Paul and Huntsman opposing such approaches to the problem and Huntsmen in particular stating to do so would start a damaging and unproductive “trade war” on an issue we couldn't-- in his view-- win in the international trade court.

On the issue of foreign aid, all of the candidates with the exception of Huntsman seemed to agree with Perry who outlined the view that the U.S. government should annually start at an assumption of zero support dollars for foreign nations, including for “ally” in the war on terror Pakistan [and staunch Mid-East ally Israel] with the amount of any aid to individual nations being justified and determined each year on a case by case basis, with which Gingrich agreed.  When asked if this included Israel and Pakistan, which intellegence has indicated may have been behind the attacks on U.S. [embassy] facilities in _____________ and __________ that some have said have amounts to an act of war against the U.S., Perry was cajoled into agreeing.

  Gingrich followed by agreeing with Perry's position of "zeroing out" and then justifying annually every dollar of foreign aid to countries like Pakistan on a country by country basis, pointing out that Pakistan  was run by its military and Pakistani secret services who somehow failed to arrest Bin Laden in spite of  living in a compound within walking distance from Pakistan's “West Point” in Abbottobad, Pakistan.  As a result Gingrich emphasized that under the present circumstances he didn't feel Pakistan's recent conduct warranted further "automatic" support by the United States.

   Of all the Republican candidates only Rick Santorum openly objected, saying “Pakistan must remain a friend of the U.S.” and we could thus not afford to cutoff aid no matter their less than consistent support.

The debate, the first part of which was aired live on CBS (and the entirety of which was streamed live over the internet), can be seen in its entirety by clicking HERE or HERE and scrolling down to the Nov. 12, 2011 debate and clicking the appropriate link. jp

Friday, November 11, 2011

The ACLP Salutes our Veterans on this day to remember that Freedom isn't Free

On this day we set aside to honor those who have fought to defend our values and freedoms around the world, let us never forget that the freedom they have fought (and died) for is never truly free.  Indeed, as our nation's third President and author of the Declaration of Independence, Thomas Jefferson, said, "the price of freedom is eternal vigilance." Let us never forget this sacred obligation lest our veterans' sacrifice be in vain!!!

Wednesday, November 9, 2011

Court Update: Obamacare, Indecent Broadcasting and GPS tracking privacy

 As our readers already know, one of the primary purposes of the ACLP is to analyze and bring attention to important legal decisions of the U.S. courts, especially those at the federal and appellate level dealing with matters of constitutional import.  The last week has raised various cases on national issues worthy of comment. 

  The decision by the District of Columbia Court of Appeals upholding Obamacare in the 'Seven Sky' case

  With impeccable timing coming immediately before the High Court "officially" decides on whether to review the Patient Protection and Affordable Care Act of 2010 aka Obamcare, (the Supreme Court will decide tomorrow which cases of the lower courts it will review, and even more importantly, on what basis), yet another decision by the Federal Court of Appeals has found Obamacare constitutional, (making it 2-1 for Obamacare in the Court of Appeals with one circuit court of appeals, the Fourth, declining to decide the case on the merits due to its perceived lack of jurisdiction). 

  The latest decision by the D.C. Circuit came yesterday in the case of "Susan 'Seven Sky' v. Eric Holder," District of Columbia Court of Appeals No. 1:10-cv-00950 and was authored by federal Judge Lawrence Silberman, a Reagan appointee.  The ruling upheld a decision by a lower court dismissing a challenge to the controversial law's "individual mandate" as an excessively broad and unconstitutional violation of Congress' power under the "Commerce Clause" of the U.S. Constitution, and was the second time a lawsuit regarding Obamacare has resulted in a split from the expected outcome based upon the political affiliation of the justices involved, (once in striking down the law and once, here, upholding it. NOTE:  As an aside it might be helpful to note this frankly is how judicial appointees are supposed to function rather than simply as another of the 'political branches' of the U.S. government which otherwise might be tempted to yield to special interests and public opinion in reaching decisions; indeed, it is the reason the Founding Fathers wisely established so called "Art. 3" judges as lifetime appointments, although undoubtedly this is sometimes abused).

  The ruling of Judge Silberman, which was joined by federal judge Harry Edwards, a President Carter appointee to the federal bench, held that the powers of the government under Obamacare, particularly those relating to the "individual mandate" requiring all citizens purchase health insurance or be penalized by the IRS, do not exceed the powers given the government under the "Commerce Clause" of the U.S. Constitution.  (For excellent and more detailed legal analysis of the decision and precedents underlying it see here and here).

  As above alluded, it also illustrates the tendency of this controversial law to cross political lines and join strange bedfellows, (as previously illustrated by a decision in the Eleventh Circuit, which also failed to hew to the usual political lines of demarcation in American politics with a Democrat-appointed judge there joining a Republican-appointed judge in ruling Obamacare unconstitutional, see here).  Most saliently, the ruling highlights not only the necessity of the U.S. Supreme Court's resolution of this landmark legislation on which we have expressed our opinion previously, (see here), but the difficulty in resolving the thorny questions of constitutional law which the "Patient Protection and Affordable Care Act," as it's officially called, raises.

  The basis for the majority opinion in the D.C. COA Obamacare decision; A harbinger of the future?

  In its ruling the majority, tracking the prior decision by the Sixth Circuit Court of Appeals in June upholding the law, (see here), the D.C. Court of Appeals cited previous and at-the-time equally controversial rulings of the U.S. Supreme Court in the early commerce clause case arising out of the FDR Administration's 'New Deal' laws Wickard v. Filburn, as well as decisions upholding the 1960's Civil Rights Act(s). 

  However, in perhaps a harbinger of things to come, in citing the relevant "commerce case" precedents in ruling on the primary matter at issue here, the Court less than convincingly concluded regarding the individual mandate, "It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race ... or that a farmer cannot grow enough wheat to support his own family," (from decision in case "Susan 'Seven Sky' v. Holder, District of Columbia Court of Appeals No. 1:10-cv-00950, pp. 36-37, slip opinion).

  A disssent by Judge Brett Kavanaugh, a George W. Bush appointee, emphasized a perceived lack of jurisdiction based upon the view that the "penalty" for failure to comply with the individual mandate to purchase health insurance was actually a "tax," which would bar the federal courts from rendering a decision until the actual penalies under the law kick in after 2014 under the 'Anti-Injunction Act,' adding, "We should hesitate to unnecessarily decide a case that could usher in a significant expansion of congressional authority with no obvious principled limit."
  The good, the bad, and the ugly of the D.C. Circuit's beg-the-question and less-than-confident ruling

  However, as others have noted, (some of whom I cite here), there is some "good" news in the Court of Appeals decision, (if the D.C. Circuit's decision is even relevant at this point in light of the certainty that the Supreme Court must already in some fashion resolve the constitutionality of the controversial law due to the split in the views of the Sixth and Eleventh Circuits on the "individual mandate," as pointed out here).  And the "good" news is this:  Although the majority did in fact uphold the law, it was clear it did not do so on any clearly articulated legal basis, or a fervent belief in the innocuousness of the sweeping legislation and its admittedly pervasive impact on the liberty of every man, women and child in the nation (and its inherent regulation of almost any activity a citizen could do (or not do!) that could potentially impact interstate commerce in the aggregate), but at least arguably due to the court's inability to discern from constitutional writ or the court's prior precedents what precise criteria should be applied in establishing the proper limits of the commerce clause's reach.   Again, quoting from the majority decision:

We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. 

SUSAN SEVEN-SKY, ALSO KNOWN AS SUSAN SEVENSKY, ET AL., APPELLANTS v. ERIC H. HOLDER, JR., ET AL., APPELLEES, District Court of Appeals decision No. 1:10-cv-00950, p. 33, slip opinion, download pdf of the full COA decision by clicking here).  
    Most alarming is the D.C. Circuit's open conclusion that the Commerce Clause allows the federal government to constitutionally require the purchase of "any product or service," (see above).

    In doing so the court clearly bought into the same sort of sweeping conclusions as the Sixth Circuit did previously that are not at all clear to us, (even if they were to the Democratic-controlled U.S. Congress at the time of passage, i.e., "Because virtually everyone will, at some point, need health services, no one is truly inactive, and the health services market is inextricably intertwined with health insurance... those who do not purchase health insurance, and instead self-insure, almost inevitably take health care services they cannot afford," Seven Sky, supra, p. 25, slip opinion).

    Our response to the "Everybody does it" argument put forward by the laws proponents and District of Columbia decision

    Again, as others in the blogosphere have aptly noted in various other ways, the "everybody does it (i.e. 'needs it' ) argument is clearly not true if a seemingly perfectly healthy person dies in his sleep at a young age of a massive and inexplicable heart attack having never used the national "health delivery system" previously, (stranger things have happened!), or a person of exceptionally good health and frugality lives his whole life having paid "cash only" for incidental visits to "fee for service" clinics for such things as minor infections, the flu, etc., and then throws himself off a cliff into a river to be eaten by crocodiles, (ending his life with an almost non-existent footprint on the "national" health care system).

   While such incidences of health care useage may be the exception and not the rule, (although we have not seen any hard data either way on the matter), and one might perhaps object, "but such isolated incidences are not the usual case and shouldn't be used to swing the debate one way or the other," our reply is that our citing such hypothetical and "isolated" examples is only necessary, and indeed, expressly justified in response to proponents of Obamacare themselves routinely including "everyone" in their contrary and just as hypothetical "everybody must significantly use the health system at some point in their life" argument.

   Indeed, it seems to us here at the ACLP that if proponents are going to use such an extremely inclusive argument which explicitly relies on the assumption-posed-as-fact that "everybody" eventually uses the health care system in such a way as to necessarily negatively impact the "commerce" of the entire nation, it is entirely legitimate for opponents of Obamacare to point out that, in fact, that is not the case (or, in other words, proponents are just plain wrong on the facts).

   One of the most interesting facets of the D.C. court's Seven Sky Obamacare ruling; The Dissent

   However, one of the most interesting features of the D.C. Circuit Obamacare decision, (other than the rejection of the "religious rights" challenge to the law, see below), is that from the perspective of legal interpretation the dissent's rationale that the "penalty" in the law is, in fact, a "tax," was the same rationale originally urged but eventually abandoned by the Obama Justice Department in defending the law in this case (a tactic they also employed before the Fourth Circuit which upheld the dismissal of a suit attacking the law partly on this basis, see here for an overview of the Fourth Circuit decision, click here to download actual decision). 

   Of course, legally speaking, it matters not that the Obama Administration, in attempting to procure political favor with the public for its plan and then, failing that, deciding to use whatever tactics were necessary in pushing the law through Congress anyway, (see here or here), repeatedly and emphatically claimed that the individual mandate-- and the penalties imposed for failing to comply therewith-- was not a tax! 

  But such an interpretation of the 'Anti-Injunction Act' could, in the absence of a concensus on how to resolve such issues by the Supreme Court, potentially be the basis on which the High Court, at least for the time being, upholds the law, (rather than immediately resolving it, as they say, "on the merits"). 

   Does the Court of Appeals Ruling increase the likelihood the Supreme Court will 'punt' on the merits?   

   From the perspective of the 26 states embroiled in litigation with the federal government over the difficult (and expensive!) implementation of this behemoth law, this could result in a very costly delay in procuring a ruling on the ultimate constitutionality of the law, (during which in the intervening time in "limbo" the states would be obliged to enforce and implement this sprawling legislation). 

   Of course, the Supreme Court knows this-- raising overall the probability that the High Court will, in fact, find a way to get beyond the "Anti-Injunction Act" argument to a substantive ruling on the merits of the constitutionality of the law itself under the Commerce Clause-- but that doesn't mean the D.C. Circuit's decison isn't still enough to suggest a potential logistical nightmare sufficient to give all states, as well as the state plaintiffs to the various challenges to the law, a painful case of political and legal indigestion in the meantime.  (Not to mention dash the hopes of states' rights advocates and libertarian interest groups of a chance for the High Court to re-examine its Commerce Clause jurisprudence with an eye to a possible "retooling" of its precedents that would reign in the power of the federal government over the states generally and breathe life into the Courts application of the 10th Amendment).

   First Amendment religious freedom arguments given short shrift in upholding trial court's dismissal

   Finally, as above noted, the D.C. Circuit upheld the dismissal of plaintiff's claims re: a violation of their rights under the Religious Freedom Restoration Act.  Since the appeals court failed to reach the significant merits of the religious rights claim and such a claim, and its arguments, may be relevant to further legal action on remand if the Supreme Court reverses the decision without reaching the merits of the law's constitutionality under the commerce clause, (an improbable but possible outcome), we address it here for the benefit of our readers in line with our .

   Such claims by the Plaintiff's-- one of which included Susan 'Seven Skye,' a native American who ostensibly adheres to traditional native American medicine and eschews modern medical treatment-- are of particular interest for the implications of not just traditional Native American practitioners but those of other minority religious faiths, (such as Jehovahs Witnesses, whose legal actions in defense of their beliefs against vaccinations almost single-handedly are responsible for the "religious exemption" now enshrined in most states' "mandatory vaccination" laws).  

   Indeed, such a scenario is particularly apropos, we think, to the discussion on Obamacare not only for the important religious freedom claims it raises under the First Amendment, but for the overlapping ground it shares with OC by virtue of the distinctly "states rights" nature of mandatory vaccination laws, (which few would argue don't squarely fall in the province of the individual states' "police powers" to regulate conduct for the health, welfare and benefit of their citizens, a power which, at least until now, has expressly been reserved to the states absent explicit constitutional grant of authority to the national government in our federal constitution of enumerated and limited powers).  And that, in essence, is the ultimate "rub" to all of this.

   No articulable legal basis on which to uphold any limits to Feds power under Commerce Clause according to D.C. Court of Appeals decision and ObamaCare proponents

   Indeed, proponents to the sweeping legislation known as "Obamacare" have yet to come up with a principled and articulable argument to defeat Obamacare's opponents' concerns that if the government can coerce citizens under the commerce clause into buying as commercial and personal a product as health insurance, and further determine the sorts of services and terms under which those health "services" are delivered, there is virtually no personal conduct or activity which the government might not next claim has an "aggregate impact" upon interstate commerce in some way which means our republican form of government based on a rule of law of enumerated and limited powers has ceased to exist

  Wickard v. Filburn: A short primer of a tortured legal case and its inevitable result

  Along those lines it is important to remember that, in the seminal 'Wickard v. Filburn' case from 1942, (which is still valid law as shown by its extensive citation by both the Sixth and D.C. Circuit decisions), the farmer in that case was forced to throw his excess wheat he grew onto the ground to rot rather than feed it to his own family on the basis that he would otherwise have to buy his family's food on the open market and thus impact in aggregate the "interstate commerce" of the national (and/or international?) wheat market! 

   It does not take a legal scholar to tell that if the government can apply the same reasoning of Wickard in regulating something so personal as health care, (which the Supreme Court has said again and again is a person's autonomous right to refuse outright if he wishes), there is nothing the federal government can't force you to buy or do.  (The oft-cited example of forcing someone to "eat their brocholli" has often been mocked as a ridiculous paper tiger by supporters of Obamacare, even as they cannot refute the logic of such concerns; From our perspective however, with the contemporary emphasis and increasing obsession of health and governmental authorities on the "health risks" and costs to society of obesity vis a vis its increased risk of heart disease, stroke, diabetes, etc. etc. already resulting in national changes to the school lunch program, laws against salt and transfat use in private restaurants in New York City and other places, and banning of soda sales in public schools, we don't think such "regulation creep" is so far fetched as proponents of Obamacare claim).

   Case Two: CBS News, the FCC and the case against public lewdness vis a vis the Superbowl 'wardrobe malfunction.'

   In other news, a divided Third U.S. Circuit Court of Appeals has thrown out the roughly half million dollar fine levied against CBS following its public broadcast during the 2004 superbowl of Janet Jackson's bare right breast during the infamous alleged "wardrobe malfunction" in a tawdry dance scene with Justin Timberlake which was viewed by millions of children during daylight hours over free airwaves. 

   The Court held that imposition of this fine was an "arbitrary and capricious" departure from a supposed "Thirty year record of non-enforcement" of "fleeting" nudity in other cases by the FCC.  (While we don't pretend to be experts in this area of the law and time fails for a searching analysis of the court's reasoning and the precedents on which it relies), we fail to see the salience of this any more than the Google TOS we all agree to in opening a google account, (ya know, something about failure to enforce any provisions of the contract do not "waive" or give up Google's rights to do so in the future?).  Of course, I suppose that the really, really smart men in robes know better, (because we all know that wearing a black robe makes one a better arbiter of such matters! ;)   However, another aspect of this long-tortured case deserves mention.

   In the procedural labrynth that has become the hallmark of this case in the years ensuing since the 2004 incident that would give even the most detailed and erudite legal watchers whiplash, perhaps the most interesting twist in this long running case is that the fine imposed in this case had previously been vacated by the Third Circuit and then re-instated after a 2009 case in which the U.S. Supreme Court upheld the FCC policy as "rational" in another appeal, resulting in the Janet Jackson case being sent back to the Third Circuit for further proceedings.  It was these "further proceedings" which resulted in the most recent decision.

   Although we have our doubts from the vague comments of the FCC following the most recent decision that it would use "all the authority at its disposal" to ensure that broadcasters serve the public interest when they use the public airwaves, (as well as the Obama Administration's more liberal stance towards such matters overall compared to the Bush 43 Administration), we urge the FCC to appeal once again to the Supreme Court so the independent ability of the FCC to enforce common decency can be upheld

  In the meantime, (as if that's not confusing enough!), the Supreme Court itself is set to rule on the overall constitutionality of the F.C.C.'s policy in another case out of New York, making at least a stay of the Third Circuit's decision reasonable.

  We hope and pray that the Supreme Court will help, and not hinder, the regulation of the culture's unmitigated assault and sexualization of our nation's youth that is unrelenting in todays' media by whatever decision they ultimately reach.

  Case three:  The Supreme Court's seeming unease with unmitigated, warrantless GPS tracking of the public

  Finally, the Supreme court, in opening arguments yesterday regarding GPS tracking of suspects' movements by the government without any court oversight whatsoever, the High Court seemed troubled at the prospect of the government affixing GPS units to privately-owned cars without first obtaining a warrant or having any probable cause that the vehicles or persons involved were actually involved in illegal activity.

   Indeed, in intense questioning regarding this practice, (which we previously reported on here), the Supreme Court seemed taken aback by the Solicitor General for the United States' assertion that the government could legally, if it so desired, even place tracking devices on the justices own private automobiles for extended periods of time without any court oversight at all under the Fourth Amendment

  Needless to say, we think it fairly safe to say that, from all appearances, the Supreme Court is not willing to go quite so far as the Obama Administration is urging it to in this "brave new world" of technology in which we live, (which is, to us, a good thing). 

  We will continue to keep you apprised of important developments in these critical areas of law which effect all our lives as citizens in the greatest nation on earth, the good ol' United States of America!  jp

Attorney General promises "never again" while simultaneously defending 'Fast and Furious' in Congressional hearings

Tuesday, November 8, 2011

Allegations of Sexual Misconduct against GOP Presidential hopeful Herman Cain Mount

 Mounting allegations against Republican presidential hopeful Herman Cain have roiled the Republican Presidential nomination process, leading to speculation that the candidate's stunning rise in the polls may be followed by an equally devastating fall from grace within the Republican (and American) electorate even as he has steadfastly resisted calls to drop out of the nomination race

 Although recent polls have not yet seemed to register much of a change in opinion among Republicans towards the embattled candidate following his staunch denials of allegations that he sexually harassed several female employees of the National Restaurant Association in the late '90s when he was President of the organization, that is likely to change with Sharon Bialek, one of the alleged harassed women, now coming forward to publicly air lurid details of his attempted advances and use of employment as leverage in attempts to procure sexual favors, see here.

  And although as a non-profit organization we don't often publicly express opinions on purely political matters better left to the judgment of the American voters (as opposed to examination of the issues), and don't usually endorse particular candidates, these extraordinary events lead us to make the following statement:

 1)  With the publicly detailed allegations now given increased credibility, as well as yielded publicly the name of a second woman and U.S. treasury department spokesperson Karen Kraushaar, also allegedly harassed by Cain, raising the likelihood of further revelations to come, (indeed, news has broken that a planned news conference of all the women claiming harassment by Cain in the 1990's is planned),  AND,

2)  The revelation by the Candidate himself that at least one of the woman claiming harassment was paid a "severance pay" to drop her claims of sexual harassment in the '90s and the National Restaurant Association has confirmed the existence of at least 2 such complaints against Mr. Cain, and WHEREAS,

3)   It appears highly likely to this organization that dragging this matter out will prove not in the interest of all parties, (including the women involved in these incidents, several of which have expressed a desire not to have the whole thing made public), and further focusing on such matters will only serve to contribute to the cynicism and low esteem in which the American public already holds their elected leaders and political institutions and can at this point serve no legitimate law enforcement purpose these many years later long after the statute of limitations on any civil or criminal action can be brought have expired, AND FURTHER,

 4)  That a continuation of Herman Cain's presidential campaign can only harm and reinforce by association, fairly or not, in the eyes of a significant portion of the public, a negative view towards conservative principles and other candidates who might otherwise better be able to promote policies more in keeping with the values and goals of the ACLP than the present Administration, MOREOVER,

 5)  That further scheduled debates, one of which is scheduled for November 9, 2011 on CNBC, is likely to focus considerably on the claims as have been made against Mr. Cain and thus serve as a distraction to the discussion of the critical public policy issues facing the nation at this time, NOW THEN,

 The American Center for Law and Policy calls on Republican Presidential Candidate Herman Cain to suspend and/or end his campaign for President of the United States and put his country's need  to focus on the critical issues it faces in these uncertain times above his own political aspirations. 

  Indeed, to do so would allow a time of healing and reflection that would innure to the benefit of the country and good will of all Americans and positively reflect on the character of Mr. Cain that, prior to the recent revelations, had been so much a part of the appeal of his campaign for the Republican nomination to the presidency.  (After all, even Nixon had the decency to resign rather than put the country through a grueling and extended impeachment process that would have only served to further divide our country at a time in which, as now, our attentions could be better focused elsewhere, for instance, Iran, or the world economy).

  On a more personal note, we also urge you Mr. Cain to seek personal redemption and reconciliation for the matters of which have been reported on which will undoubtedly require your attention in your own life regardless of whether the offenses claimed have been exhaturated and/or promoted for partisan political purposes as you claim. 

  We also call on all other Republican candidates for the presidential nomination to condemn, in no uncertain terms, the kind of acts as are alleged and have been reported widely in the media, as several have already moved in the direction of doing so, (see comments by Newt Gingrich and Rick Santorum). 

  The issue of sexual harassment is a very serious one, as are the issues that further focus on the sensational claims as have been made against Mr. Cain will undoubtedly crowd out from public consideration if the allegations as have been made persist in dominating public discourse as they have the last week in the next.

  We therefore appeal to you personally Mr. Cain, to do the right thing and step down from consideration for the nomination to the office of President so that a comprehensive and dispassionate examination of the relevant and crucial issues facing our nation may be able to move forward and ultimately innure to the general welfare of these United States.  jp

Tuesday, November 1, 2011

Obama and the FOIA: The Most Transparent Administration in History?

My has the gloss worn off!  Admittedly, we've come a long way since the soaring rhetoric of candidate Barack Obama for nearly two years as he promised to "clean out" the ethical swamp that is modern-day Washington and usher in a new era of openness and accountability to the American people which would result in "the most ethical administration in history," (and see President Obama's lofty proclamation upon taking office here).  Indeed, it's been quite some time since we were promised by Barack Obama's partner in crime former House Speaker Nancy Polosi― or was that Bill Clinton? I just can't seem to keep all the promises of the Dems apart any more, must be a sign of old age, no, not a growing distrust with everything I am told by the powers that be silly, but my memory! lol― that a Democratically-controlled house and, by implication, a shiny new Obama Administration, (to replace the worn and disfavored Bush 43 one), would result in the "most ethical and transparent" government in history.  So what have we gotten in return for such grandiose promises from the political left?  Unfortunately, if the Obama Administration's recently announced plan to lie, yes LIE to American citizens and investigative journalists simply seeking information about the government's activities under the Freedom of Information Act is any indication, not much, (see hereherehere or here).

  As if crony capitalism, (think Solyndra, Lightsquared), incompetence and/or politically motivated policies, (think Fast and Furious, Bank bailouts), and job-killing "regulation nation" weren't enough, (think the loss of tens of thousands of coil, oil, and logging jobs effected by this Administration's policies and/or misguided efforts to pay off union-boss buddies by suing to shut down Boeing Corp's attempt to open― and hire thousands of American workers accordingly― a new factory in South Carolina, or the Feds raid against Gibson Guitar Corporation of Tennessee for the terrible crime of, wait for it, employing Americans to make guitars from wood!  (Which every other manufacturer does as well and to stop would send these good manufacturing jobs overseas, Duhh!).   Seriously folks, you can't make this stuff up! (And if you don't believe me just click on the links or do your own googling!).

  In that light, the Obama Administration's plan to "modify" the federal regulations for the Freedom of Information Act is just the most recent incarnation of the Obama Administration's attempt to completely control Freedom of the Press and the people's ability to effect the levers of their government, (an indispensible part of any free democratic republic according to our Founders, see Federalist 84).

  Of course, for readers of this blog, or well-read citizens and lovers of freedom generally for that matter, the "writing on the wall" apparent from this Administration's attempts to regulate the internet, see HERE, re-introduce the "fairness doctrine" to silence their political enemies on talk radio, see HERE, as well as muzzle mainstream news reporters or even whole networks such as Foxnews, none of this comes as a big surprise.  Indeed, no administration since the Nixon Administration has attempted to control and manipulate Americans' simple access to information as ardently as the present one.

  But the utter brazenness and zeal with which this Administration seeks to shred sacrosanct Constitutional rights is alarming by any standard, to say the least.

  The good news is that such efforts have raised the hackles on the necks of such diverse groups as the American Civil Liberties Union and Judicial Watch, as well as veteran litigators American Center for Law and Justice and others alarmed at this power grab by the Obama Administration.

  Of course, for hard-core Obama supporters like 'Suavane' for whom Obama can do no wrong, (see comments on this site), all this is not in the least concerning.

   Indeed, as is the case with most hard-core leftists, nothing else matters as long as their guy Obama can stay in power to push his radical social engineering, anti-American and job-killing policies that are at the heart of the progressive movement in America.

  In fairness, as some astute observers point out, a similar rule was proposed by former Reagan Attorney General Edwin Meese back in the 80's.

  To us, however, this misses the forest for the trees and ignores a much more fundamental principle than mere politics that we here at the ACLP are dedicated to, which is simply this:  A bad idea, (or a good one), is good or bad not because it is suggested by someone with whose politics I happen to agree, (or disagree, as the case may be), but rather depending on the merits (or not!) of the ideas themselves.

  Rather, in order for America to work again, (as opposed to just politics as usual), and critically, if the idea of freedom is to persist in this greatest nation on earth, we must get away from the politics of personal destruction to the point that we can debate ideas without the threat of ad hominem attacks such as being accused of being a "Nazi" or "racist," (all too often the favorite tactics of the political left when they can't refute with logic those they disagree with).

   Or, to put it in language any second grader can understand in examining the 'Ed Meese did it too' argument, "two wrongs don't make a right."

   As a practical matter, if these new regulations are finally approved and put in place by the Obama Administration, we as a people will have ceded incredibly important rights to the federal government at the direct expense of our ability to monitor and effect the direction of our Republic.  Indeed, we will in fact have given the Feds the right to brazenly lie to 'We the people' at will, without any recourse to the courts or usual checks and balances of our constitutional system.  (As an aside, and as others have pointed out, one can't help but speculate that imposing such new "rules" regarding the FOIA will also prove immensely helpful to the Obama Administration's efforts to resist investigations into various on-going scandals, including the above-mentioned Solyndra bankruptcy and the Fast and Furious BATF operation which led to the death of Customs and Border patrol agents Brian Terry and                        , (see HERE).

  However, as above-alluded, as bad as that is, it is not near as ominous to our perspective as the potential damage to our very ability to hold our government accountable in a myriad of other ways.

  Indeed, in an open, democratic society which depends on the free access of information and ideas for its very life blood, it will have driven a stake into the heart of the First Amendment and ability of citizens to find out what the federal government is really up to at any given point in time or on any given issue, (which is something in our humble opinion that should alarm every American, regardless of his or her political persuasion).

  In short, this is one example we believe is beyond dispute that what you don't know can actually hurt you, (or at least harm our democratic form of government).

  And that, to us, is far more important than any one political party or personality.  jp

Wednesday, October 26, 2011

Will Obama Administration allow strict 'Sharia law' to be imposed on the freed Libyan people?

So the six month time limit under the War Powers Resolution Act for the President to either withdraw from “military intervention” in the Libyan civil war or receive Congressional approval came and went without much adieu.

True to form and our prior analysis, (see here and here), that leaves the progressive presidency of Barack Obama on record as entirely at one with the policy of the more conservative Reagan, Bush 41 and Bush 43 Presidencies in his assessment that the War Powers Act is something that can not only be unilaterally deemed “unconstitutional” by the Executive branch, but can, for all practical purposes, be ignored altogether, (how's that for the “Rule of Law” instead of men?!)

We shall leave aside that the actions of this Administration in doing so have arguably given this landmark culmination and compromise in our constitutional framework stemming from the political activism of the 60's “peace and flower” movement less respect than any previous one in history except perhaps Bill Clinton's, (and noticeably different from either of the Bush's, who in fact sought, and received, Congressional approval for the war in Afghanistan and both Iraq actions), and that this is the very sort of thing that used to tie liberal panties in a string, (remember all that media focus on the alleged “cowboy recklessness” of George W. Bush?)

Be that as it may, it is small potatoes compared to the bomb dropped this week, (no pun intended!) that the victors in the Libyan “civil war,” the so called “National Transitional Council,” intend on imposing Sharia law as the basis for the new Libyan Constitution. Excuse me?!?

Please tell me that we did not place our brave American servicemen and women in danger and spend almost 10 billion American taxpayer dollars in this impromptu and some say extraordinarily bungled hesitant and late entry of the Obama Administration into the conflagration weeks after the rebels asked for help, see here to simply replace one form of tyranny for another over the Libyan people.

It would be a cruel irony indeed if we replaced one brutal dictator with the entire oppressive legal framework of Sharia law that routinely denies women the most basic rights and brutalizes everyone who doesn't adhere to its tenants, (including denying Christians and Jews, who would inevitably be the minority in such a government), the right to worship and share their beliefs freely, see here and here).

  So ominous and, yes, dare we say un-Democratic is the likely result of Sharia law that it has even come up in the American Presidential race to replace Barack Obama in 2012, (see hereherehere, here and here).

For those unenlightened Sharia law is a strict implementation of Islamic law that does not allow women to vote or own property, bans all music and consumption of alcohol, and executes homosexuals and Christian converts from Islam alike, (see details here). 

  In short, it would be a disaster for the Libyan people who have so long yearned for freedom and make a mockery of our sacrifice to free them from Gadaffi's grip, (of course, judging from Obama's own history and attendance at Islamic Madrassas in Indonesia where he spent the majority of his formative years, we don't expect the Administration to care about the results that imposing strict Sharia law would have on the Libyan people's freedoms, not to mention our countries own legal traditions, see here). 

  Accordingly, perhaps it should come as no surprise that Mustafa Abdul-Jalil, the President of the National Transitional Council and the de facto (if temporary) ruler of Libya, should state that Sharia will form the "basic source" of Libyan law going forward and that laws in opposition to it will be nullified. 

  Indeed, contrary to the former Libyan Constitution of 1951 which under Article 11 guaranteed secular and equal rights to all regardless of religious affiliation but now seems likely to provide greater freedoms than the "new" Libyan Constitution will to its citizens, it has become abundantly clear that the new and imminent Constitution, (which is expected within 60 days of elections for a national legislative body, i.e., "Public National Conference" scheduled to occur within 8 months), will be based upon “Sharia law,” see here and here.  (And this in spite of the political left openly mocking those who warned of the possibility of influence from radical elements of the Muslim Brotherhood in the nations being convulsed by the "Arab Spring" resulting in a less than an apple pie and American-flag- waving-outcome, see herehere and here).   

 The Congress and State Department ought to do everything it possibly can to discourage this turn of events and convince the new leadership of the Libyan “republic” that America will take an extremely dim view of Sharia law being imposed and that such an outcome would unequivocally result in a cutting off of any financial or reconstruction aid Libya might otherwise expect in the post “intervention” period.

And while we're at it, we might also send them a bill for our investment to date in freeing them from Ghadafi's iron grip.

After all, if we're going to act like the world's policeman, it's only fair we be compensated for it. jp

Sunday, October 16, 2011

Is it time for Eric Holder to go? New documents suggest Attorney General committed perjury in Congressional testimony re: deadly and illegal BATF “Fast and Furious” gun tracking program.

Newly released documents uncovered in the Congressional investigation led by Darrell Issa, Chairman of the House Oversight Committee, into the “Fast and Furious” international gun trafficking operation conducted by the Obama Administration have raised doubt as to the truthfulness of U.S. Attorney General Eric Holder in sworn testimony before the House Oversight Committee in May of this year.  Coming on the heels of a string of reports bringing into doubt the Administration's claims about the controversial government operation executed through agents of the BATF out of the Phoenix Arizona field office, including revelations that the Federal government, after repeated denials, itself funded the illegal purchase of arms through "straw buyers," that there were more weapons than originally claimed, and the possible political motives of the Administration in letting the program go forward, (and indeed, expanding it!) the ACLP calls for the Attorney General's resignation.   The facts, and the reasons for our position are as follows:

In the May 2011 hearing before the Committee, Attorney General holder claimed he hadn't known about the controversial operation– which resulted in literally thousands of assault weapons being illegally sold to “straw buyers” at the behest of the Bureau of Alcohol, Tobacco and Firearms and transported across the Mexican border only to end up used in the murder of at least two American agents– until just two to three weeks before the May hearing, (for video see HERE).

The only problem is that evidence uncovered by CBS news and others, including emails released pursuant to a subpoena by the House Oversight Committee, reveal reports and meetings that show the Administration's chief law enforcement officer was informed as early as April of 2010 of potential problems with the government “gun tracking” scheme and had received no less than half a dozen other letters, reports, and memos on the controversial program from cabinet and government officials inside the Department of Justice in the prior year, (some addressed directly to his attention!)  In the face of this brazenly conflicting information the Oversight Committee has issued new subpoenas aiming to get to the bottom of the discrepancies and uncover once and for all just what the Attorney General, and others in the Administration, knew about the ill-fated program and when, see here and here.

Mr. Holder claims, in a letter to the Committee on Oct. 7, 2011, that he hadn't personally read those memos or that those under his command, whose alleged job it was to inform him of such things, hadn't done so, (prompting a scathing reply by Congressman Issa, see news here and here).  

Whether due to mere incompetence or a coverup that makes the Watergate scandal of the 70's that brought down the Nixon Administration seem like small potatoes cannot at this point be definitively determined, but, in any case, it is irrelevant.

Assuming the attorney general's explanation is true, this paints an equally or even more disturbing picture of a Justice Department under Holder that is so out of touch and dysfunctional in its critical duty of enforcing the nation's laws and policing itself as to be inexcuseable. Indeed, the fact that attorney general Holder wasn't even aware of this misconceived government operation long after its deadly consequences became public in December of 2010 argue forcefully that change is long overdue at the Department of Justice. (Indeed, coming on the heels of attorney general Holder's previous controversial decisions and continuous stonewalling on this and other matters some would say more than long overdue, see HERE, here, and here). That change should clearly begin with the firing of Attorney General Holder by the President.

Mystifyingly however, rather than call for full cooperation by his Chief law enforcement officer to determine who knew what at Justice and when they knew it or even express dismay at the revelation that his Attorney General appears to have misled Congress in attempting to carry out its oversight duties, President Obama curiously has instead defended Holder and made no such calls. The question is, why?

It is beyond serious doubt by astute political watchers that it would be in the President's favor– coming up to what will undoubtedly be a closely-fought re-election in 2012– for Obama to dump anyone from his administration that could hurt his chances of re-election, (as most presidents do routinely when approaching a potential second term); indeed, it is a fact of political life that such “political appointees,” i.e., those who serve at the pleasure of the President such as the attorney general, are, in political terms, dispensible and routinely fired for just this reason.

So the question is, could the refusal of Obama to do so reveal there is more to this story than currently meets the eye? (Rather than just a deep loyalty on behalf of Obama to his top law enforcement official?)  I mean, it's bad enough there are indications that the whole reason the Obama Administration pushed this dubious program initially was motivated by a desire to demonize lawful American gun makers and dealers for "Mexican cartel violence" and thus increase political pressure for new legislation restricting the right to bear arms, (a political goal of the Administration that would fit with its M.O. in other areas), but could this reticence on the part of the President be the result of a desire to protect his own self from political fallout if it were revealed he had personally signed off on the program?

While no one can presently say for sure– this is one of the very questions the newly issued subpoenas are likely to shed light on as the only way Holder can legally refuse the subpoenas is to claim 'Executive Privilege,' a defense available only if he admits having discussed the operation with the President– the fact this Administration is instead closing ranks and circling the wagons in support of Holder might suggest that knowledge of who knew about “Fast and Furious” and yet continued to approve its execution might indeed go all the way to the President. In this scenario it makes perfect sense why President Obama, who knows that throwing Holder under the bus could lead to revelations about his own knowledge of this unsavory (and illegal!) program that could eliminate any chance of his re-election come 2012, might defend Holder instead of fire him. This, to us, is the real story here.

We wish Congressmen Issa and others investigating the Administration's actions well in getting to the bottom of this scandal which has had deadly consequences as well as undermined U.S./Mexican relations and the credibility of American judgment and resolve to enforce our laws.   jp

Monday, October 10, 2011

Supreme Court Fall term preview; Obamacare, police Gps tracking and Illegal immigration

 A week after the traditional start of the Supreme Court's "Fall Term" on the first Monday in October, this year's court docket is shaping up to be a historical one in light of its potential for far reaching impact on the life of every single American.  This is primarily due to several watershed cases which the court is expected to rule on this term.  We therefore thought it appropriate to examine a few of the cases that some court watchers say will make the High Court's rulings this year the most important and momentous in decades, (perhaps even the whole 21st century!).

  First up, the High Court's decision to resolve the controversial "individual mandate" in Obamacare, (aka the "Affordable Care and Patient Protection Act," the Obama Administration's sprawling overhaul of the country's health care system).  A split between the Federal 11th and Sixth Circuit Courts of Appeal on this landmark legislation makes resolution of this matter not only a near certainty, but one with far reaching results for both the way government regulates (read "decides") not just the cost of health care, (and who will pay for it!), but the amount and kind of health care procedures Americans are entitled to receive in the future.

 Indeed, for the first time in history, a government bureaucrat will actually determine what procedures are medically necessary that individuals receive under their health plan, creating a potentially additional layer of interference between doctor and patient that many fear will end in health care rationing on an unprecedented level in an area which many feel insurance companies already have too much say in, (you can read our entire opinion on the dangers of Obamacare here).

  Of course, it goes without saying that whichever way the High Court comes down on this one, the ruling on Obamacare, expected to come next summer and smack dab in the middle of the 2012 re-election campaign of President Obama, will be an incredibly momentous and historical one in its likely impact on the 2012 elections, as well as on our health delivery system in this country in general.

  Second up, at least in potential impact on our republic in an equally contentious area of law, is the State of Arizona's anti-illegal-immigration bill S.B. 1070.  The Arizona bill, which aims to assist federal authorities and fill in the gaps on an out-of-control immigration problem that has inundated the Western state with Mexican immigrants in search of an American standard of living and accordingly overwhelming Southwestern states' like Arizona's schools and health care systems, (and, some say, taken American jobs at a time when employment is scarce), has never been allowed to take effect due to the Obama Administration (and others) immediately suing the state before it could.  

  And while we here at the ACLP don't feign to be experts enough in this area, nor do we have the time to definitively resolve such disputes, one matter is (indisputably!) not in dispute: The resolution of the legality of this law-- now copied by at least one other State, see here-- will have an enormous impact on the future of the states, (and our nation's for that matter), ability to protect itself from the effects of illegal immigration on our economic vitality and, in many ways, our very culture.   Moreover, we would be remiss approaching the presidential elections in 2012 not to mention that the matter has tangentially become an intense political issue recently due to a "gaff" of Texas Governor Rick Perry on related issues while debating Mitt Romney.

  In the Republican candidates debate in Orlando Florida on Sept 22, (see news here, and video of debate here, click on Sept 22 debate), Governor Perry responded that those who didn't support his policy in Texas of giving illegal immigrants in-state tuition at public universities didn't "have a heart," (video here), starting a furious debate within the Republican party on its immigration policy and, at least for Perry, accelerating a precipitous fall as front-runner of the Republican primary to a close race for second place with former businessman and CEO of Godfather's Pizza Herman Cain, (click here. Of course, not adequately addressed at the debate was the legal right of Arizona, which shares the second longest border with our neighbors to the South behind Texas, to pass its own laws, something that pro "states rights" candidate Perry might be expected to support).

  Watch for the resolution of this case's ability to potentially upend the Republican primary race for who will have the right to challenge President Obama in 2012 by-- depending on when the High Court resolves this case-- re-injecting this issue into the Republican campaign by summer, (if Perry can hold off Romney and Cain in the Iowa and early primary states long enough for the issue to remain relevant).

  Most important for our purposes is the potential impact of this case to determine the relationship between the states and the federal government on the immigration issue and to what extent, if any, they can work together to stem the tide of illegal immigration across our Southern borders, (the Obama Administration's legal position being that the Federal government alone under the Constitution's "Supremacy Clause" is the only level of government which has the right to pass legislation regulating this critical area).

  U.S. v. Jones is the last case of note and a matter of interest to us here at the ACLP-- as well as many privacy advocates around the country-- and regards the ability of the government to use increasingly powerful modern technology to invade average Americans private lives for less than compelling reasons.

  In light of those on the political left who seem to persistently believe that it is the political right which poses the biggest threat to personal liberty and that election of Barack Obama was the only antidote to a Patriot-Act promoting Bush Administration which they saw as invading the privacy rights of Americans, it is interesting that this case arises out of an appeal by the Obama Administration from the D.C Court of Appeals which overturned the conviction of a defendant on Fourth Amendment grounds after police affixed a gps device to track his movements without a warrant, (for pdf of court decision click here).  In other words, the Obama Administration is now arguing for less privacy of individuals and more authority for government surveillance of citizens.   Indeed, along with the continuation of Bush era policies re: indefinite detention of enemy combatants, the continued operation of Gitmo, continued, (indeed, increased!) use of predator drone strikes responsible for the taking out of terrorists like Anwar Al-Awlaki and continued economic malaise raising the chances of a 2012 Republican sweep it is not a good time to be a political liberal.  But I digress.

  On the merits of the police/gps cases the ruling of the D.C. Circuit contradicts that of another case, United States v. Juan Pineda-Moreno, in which the 9th Circuit Court of Appeals came to the opposite conclusion.  Indeed, just last year they upheld the right of police to place GPS tracking units on the cars of individuals without probable cause or a court order, (more in depth analysis of this case here).  

 The conflict between these cases in the Federal Circuit Court of Appeals makes resolution by the High Court necessary to clear up the issue, (one of the key purposes and reasons for the Supreme Court's intervention according to court rules).

  Legally, these federal rulings follow close on the heels of various state court rulings, the majority of which have ruled against the practice on Fourth Amendment grounds, see here, here, and here.  

  Most troublesome to us is the underlying premise of the 9th Circuit's decision, that individuals have little or  no "expectation of privacy" with regard to their vehicles on the public roads (or even parked in their own driveway in most cases!) such that would prohibit police from attaching such a tracking device, (in recent years a position of law increasingly expanded and used to legally justify everything from blanket "license check" roadblocks to "safe welfare" checks on children in custody disputes).

 Relying on a previous U.S. Supreme Court case, United States v. Knotts, in which the U.S. Supreme Court found a "beeper" tracking device constitutional, the 9th Circuit decision likened the police's conduct in tracking the movements of a suspected drug trafficker to that of detectives on a traditional "stakeout" or "tailing" a suspect.   The 9th Circuit essentially reasoned that since under Knotts an owner of an automobile using public roads, (and their driving habits of where and when they come and go), is entitled to no more an "expectation of privacy" under the Fourth Amendment than a person walking down a public street, the police's conduct in attaching a gps tracking device passed constitutional muster.  

  This ruling is interesting not only because it comes out of what is usually considered the nation's "most liberal" (and most reversed) Court of Appeals in the nation, (and thus makes an interesting switch in political as well as legal bedfellows from the usual state of affairs), but because it may provide us a glimpse into the views on such matters of the High Court's newest members, (Sonia Sotomayor and Elena Kegan, both appointed by President Obama in 2009 and 2010 respectively).

  Of course, what the Supreme Court will do with this case-- with two new Obama appointee judges who incidentally don't tip the ideology of the court in any particular direction as they replaced liberal-leaning justices-- is anyone's guess.

  However, keeping in mind that Knotts was decided on decidedly narrow grounds and the concurring decisions of Justices Blackman, Stevens and Brennan made clear their uncomfortability with both the treatment of certain precedents of the court and the broad terms of certain dicta of the Knotts decision, ours feeling is the odds are slightly against even that the High Court upholds the rights of the police in this case, (although the wild card here is Justice Antonin Scalia, who is known to be a maverick in certain areas of criminal jurisprudence and could easily tip the balance of the court).

  Indeed, although Scalia's strongest anti-police-power opinions have been in dealing with cases in which the text of the Constitution is crystal clear, (e.g. the constitution's guarantee re: Free speech or that an accused has the right "to confront his accusers" before he can lawfully be deprived of liberty), Scalia has frequently taken positions in favor of the liberty of individuals against expansion of governmental power, (shocking many on the left who believe that "conservatives" are all nazis with no respect for civil rights). For the record, and to shock and chagrin of our friends on the left of the political spectrum, our beliefs are to the contrary principled ones informed, and in fact strengthened, by a rock-solid belief in rights as immovable under the Constitution as we believe the words in its text are, a subject on which we reserve further examination for another day).

  In any case, and whichever way this one goes, with the potential to result in expanding the power of government at the expense of shrinking the privacy of individuals in our increasingly technology-monitored (and dependent) world, it cannot be doubted this case has the ability for immense change both to our American culture placing high value on being "free on the open road" as well as laying the groundwork for future intrusions into private life as technology expands.

  Of course, isn't that the rub?  How to not unduly hinder police in their important duties investigating criminals among us, a particularly needful and important job of the government, while at the same time not unduly threatening the rights of law abiding individuals, has always been a thorny balancing act.  This balancing act will only become more difficult, with its inherent moral and ethical dilemmas, (think movies like "Minority Report"), as time (and technology) march forward.

  We here at the ACLP will attempt to keep you apprised of such critical matters before the U.S. Supreme Court in 2011, and their impact upon our nation's political and civil freedoms.   jp