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