Patterico's Pontifications

2/25/2015

Yates Decision: A Harbinger for Halbig/King or Not?

Filed under: General — Patterico @ 8:10 pm

The lefties are crowing that today’s decision in Yates v. United States is a Harbinger of Things to Come re: the King v. Burwell ObamaCare case (oral arguments one week away!). Are they right? I’m not sure . . . but it is more than a little distressing to see two conservative justices sign onto opinions that twist language into a pretzel to keep it from meaning what it says.

The opinion is here (.pdf). Basically, the federal government has some absurd regulations that govern the all-important size of grouper that one can catch (and keep) in federal waters. Mr. Yates, a fisherman, had run afoul of these regulations, and a federal inspector was On the Case. The inspector told Yates to keep the too-small fish segregated from the rest until he got to port — but when he got to port, it turned out that he had ordered his crew to defy the agent’s orders, and toss the fish overboard.

You’re not supposed to do that.

The government chose to charge him with a violation of 18 U. S. C. § 1519, which criminalizes the concealment or destruction of “any record, document, or tangible object” with the purpose of impeding a federal investigation. Yates argued that a fish is not a “tangible object” because something something context and blah blah statutory construction.

In essence, the main argument was that the provision was in Sarbanes-Oxley, which was “intended to prohibit, in particular, corporate document-shredding to hide evidence of financial wrongdoing.” But there is some other junk in there, including canons of construction with Latin names and references to things like the title and the location of the provision within the statute.

The Court accepted this mumbo jumbo and held that “tangible object” somehow means that the tangible object must be “one used to record or preserve information.” Having grafted this non-existent qualification onto the statute, the Court found that the fish did not qualify under their new definition, and reversed the conviction.

Justice Kagan rips apart the majority’s arguments (and those of Alito’s concurrence) quite deftly in her dissent.

Are the justices deciding this case with King v. Burwell in mind? Perhaps — some more so than others, I suspect. But the fact is that context is always relevant to statutory language. As Kagan says, nobody really disagrees with that. It’s just that, as applied here, the context and all the other legalistic yapping do not undercut the conclusion that, well, a fish is a tangible object.

End of story.

P.S. If this case frightens you regarding King, be of good cheer. Winning or losing that case won’t matter, it now appears — because, as Orrin Hatch recently made clear, Republicans are going to cave immediately if we win the case:

Hatch said that while Obamacare has hurt millions of people and needs to be ultimately repealed and replaced, Congress should do something in the meantime to mitigate the effects if the high court decides to invalidate that financial aid.

“I don’t think we can stand by and simply let the shortcomings of the law hurt people more,” he said during a speech at the Heritage Foundation in Washington, D.C.

“In the coming days, I will release details of a short-term solution for Americans who may be affected,” Hatch said. “That solution will address immediate concerns and set the stage for a permanent solution in the future.”

Of course. You can’t take the goodies away, so you have to give people “short-term, temporary” subsidies until such time as you develop the political courage to . . . make those subsidies long-term and permanent.

Did anyone really expect anything different?

P.P.S. A limited solution to caving: The Freedom Option.

80 Responses to “Yates Decision: A Harbinger for Halbig/King or Not?”

  1. Ding.

    Patterico (9c670f)

  2. I demand my cookie

    steveg (794291)

  3. Perhaps the plurality is operating on the presumption that financial regulation statute should have nothing to do with fishing regulation?
    Call it constrained vision in action.

    And if so, Yates will have no real bearing on King.

    kishnevi (91d5c6)

  4. of course, Python had an insight

    https://vimeo.com/29708569

    narciso (ee1f88)

  5. The part (Well, one part)I can’t wrap my head around is that the fish were left unattended aboard the boat on the way back. I’d have been wondering if it was meant as a suggestion that if there weren’t any to be found once the boat was back in port that “Well, my tape measure must have stretched, and If I catch you doing this again I’ll get serious about it.” It wasn’t real bright to dump the fish anyways, But I can see there from here. Kind of like finding a bunch of 17 year olds out in the woods with a keg. Empty out the keg of “root beer” into the ditch, And I’ll not notice it isn’t.

    Chris (7cbedb)

  6. How am I supposed to not catch a fish under a certain size? If I do, I can throw it back (known as catch and release, which did not start as a program for criminals.) Don’t make laws and regulations that can’t be obeyed.

    htom (4ca1fa)

  7. Sarbanes Oxley was a solution to a problem, that had no impact at best, and probably compounded the next crisis,

    narciso (ee1f88)

  8. Catch and keep. I added “and keep” to the post for clarity.

    Patterico (9c670f)

  9. Well, we call a duck a duck, you have to look into the language origin of duck and the alternate meanings of duck. You can also call a duck a dodge. Taking things out of context is important.

    Dejectedhead (75dfa4)

  10. Catch and keep. I added “and keep” to the post for clarity.

    If the inspector had seen you catch it and indicated that this was evidence of your malfeasance, the language that they got rid of would make the catching and not keeping a crime, too.

    Kevin M (25bbee)

  11. In any event it is both reasonable to say that a section of Sarbanes-Oxley that purported to regulate financial evidence should be limited to just that and not extend to fishing, and to say that a clear provision in the ACA, which had a clear purpose, means what it says about health insurance subsidies.

    Kevin M (25bbee)

  12. Justice Kagan rips apart the majority’s arguments (and those of Alito’s concurrence) quite deftly in her dissent.

    I’m not sure if the ideological demarcation line regarding this ruling is all that clearly aligned with either the left or right. IOW, I can see a good case coming from both pro and con, with big-government acolytes being upended (ie, nanny-state busybodies being busybodies as usual) and people annoyed with games of the “meaning of is is” also being left exasperated.

    Mark (c160ec)

  13. umm, not too long ago you did “expect anything different”.
    i believe you wrote since they all voted against it they would bring it down when given the chance.

    seeRpea (1b7b74)

  14. Sarah Palin endorsed this Orrin Hatch and help him pull through in what had become a very shaky race for him

    good old Sarah she’s the gift that keeps on give give giving

    happyfeet (831175)

  15. As noted by your enemy Scott Lemieux, Kagan’s endorsement of context driven statutory interpretation tends against your position on Halbig:

    http://www.lawyersgunsmoneyblog.com/2015/02/today-statutory-interpretation

    In Halbig, context, the legislative history and the nearly unanimous view of everybody involved in the drafting at the time (Hatch’s post facto attempt to revise his previous remarks not to the contrary) point to the idea that the federal exchanges were meant to actually function as substitutes for the state exchanges, which would necessarily include subsidies.

    Northener (162df5)

  16. Kagan dissented from the context driven interpretation and went with the plain language interpretation. So Lemieux is FOS or you’re FOS, and neither precludes the other.

    nk (dbc370)

  17. If you want to make a point about this case, it’s the disgustingly statist mindset of the dissenters, Scalia, Thomas, Kennedy and Kagan. Look at what the guy faced for catching undrsized fish per the opinion:
    At the time, federal conservation regulations required immediate release of red grouper less
    than 20 inches long. 50 CFR §622.37(d)(2)(ii) (effective April 2, 2007). Violation of those regulations is a civil offense punishable by a fine or fishing license suspension. See 16 U. S. C. §§1857(1)(A), (G), 1858(a), (g).

    So, he attempted to evade a civil offense punishable by fine or license suspension. Not content with the five-year potential prison term for destruction of evidence, the government wanted the Sarbanes-Oxley 20 years. That’s prosecutorial malice. Government malice. Endorsed by the dissenters. This Court sucks.

    nk (dbc370)

  18. I caught a groper once. And a breather. And a peeping tom.
    All on the same line.

    Should have took pictures.

    papertiger (c2d6da)

  19. In California the fine for catching an undersized fish is $270, and you can keep your damn licence.

    I’d hate to be someone going to prison for that. Think of trying to explain why you’re in to the murderers and papists. How embarassing.

    papertiger (c2d6da)

  20. You’d have to get tatted up after that just to hold up ends.

    papertiger (c2d6da)

  21. He dared to kill the King’s deer in the King’s forest. Arrest him!!

    Yujin (284134)

  22. Mr Tiger wrote:

    Think of trying to explain why you’re in to the murderers and papists.

    Good heavens! Being Catholic is now a felony?

    The Dana who noticed, with amusement (f6a568)

  23. English law at the time of the Founding probably did treat papists as felons.

    Kevin M (25bbee)

  24. Good point, nk 17.

    DRJ (e80d46)

  25. Also, kishnevi 2.

    DRJ (e80d46)

  26. Rappists I meant.

    papertiger (c2d6da)

  27. So, he attempted to evade a civil offense punishable by fine or license suspension. Not content with the five-year potential prison term for destruction of evidence, the government wanted the Sarbanes-Oxley 20 years. That’s prosecutorial malice. Government malice. Endorsed by the dissenters. This Court sucks.

    The majority opinion sucks. The dissent is spot on. And this comment is overwrought.

    First, let me make it clear. The regulations are stupid. Most of the fish were less than an inch too short. Anyone who reads this site regularly knows that I think government has no business being involved in such matters.

    But when he threw the fish overboard, he was trying to interfere with a government investigation. The majority opinion acknowledges that he could have been prosecuted under traditional laws dealing with evidence-tampering — including the other crime that he was convicted of.

    And 20 years? Please. For violating this statute AND another statute that he doesn’t contest that he violated, he was sentenced to 30 days of confinement and three years of supervised release.

    So, while I disagree with the overbearing nature of our federal government in general, and the oppressiveness of its regulations as applied to this guy’s fishing, the rule of law demands that we respect and apply a law designed to punish those who attempt to evade it.

    And a fish is a tangible object. Which is really the whole point, and what this case is about.

    Patterico (9c670f)

  28. Yes, a fish is a tangible object, but if the law saying “tangible object” was otherwise limited to financial crimes, the idea that the tangible object would have to be evidence of financial crimes for the law to apply is not THAT big a stretch.

    But in any event, this does not have anything to do with what the ACA plainly says about something that IS not only related to its subject matter, but is solely ENABLED by the ACA.

    Kevin M (25bbee)

  29. As noted by your enemy Scott Lemieux, Kagan’s endorsement of context driven statutory interpretation tends against your position on Halbig

    Scott Lemieux is a tool. And I have no doubt that Kagan will ultimately be a political hack, just like Lemieux is, and ignore the plain language in King. But nobody I know opposes using context to interpret language. Not me, not Scalia — nobody.

    It’s just that they don’t use it to IGNORE language. That’s what hacks like you and Lemieux do.

    Patterico (9c670f)

  30. Question: if he had eaten a fish, would he have to sequester any feces that resulted? They are after all, tangible, too.

    Kevin M (25bbee)

  31. jazz Shaw Seems to agree with nk. I do, too.

    DRJ (e80d46)

  32. Do you really think the Supreme Court would have done this is the charges had been destruction of evidence under something other than Sarbannes-Oxley? this is the definition of throwing the book — and maybe even the whole library — at a defendant. It’s creative but this is what can happen when lawyers get too creative.

    DRJ (e80d46)

  33. I am always gratified to have your good opinion, DRJ. I don’t always agree with Jazz Shaw.

    nk (dbc370)

  34. the rule of law demands that we respect and apply a law designed to punish those who attempt to evade it.

    That makes me think of the saying he followed the letter of the law, but not the spirit of the law, but in this instance sort of flipping that concept on its head.

    I admit in this era of an Nidal-Hassan-ized-NSA, IRS-berserk government, etc, I can’t become as quite as exasperated as you are over the court playing games with semantics.

    Obama’s America 2015.

    Mark (c160ec)

  35. From the opinion, he was also charged and convicted under this law:

    DESTRUCTION OR REMOVAL OF PROPERTY TO PREVENT SEIZURE.
    —Whoever, before, during, or after any search for or seizure of property by any person authorizedto make such search or seizure, knowingly destroys, damages, wastes, disposes of, transfers, or otherwise takes any action, or knowingly attempts to destroy, damage, waste, dispose of, transferor other-wise take any action, for the purpose of preventing or impairing the Government’s lawful authority to takesuch property into its custody or control or to continue holding such property under its lawful custody and control, shall be fined under this title or imprisoned not more than 5 years, or both.”

    Yates does not contest his conviction for violating §2232(a ….

    nk (dbc370)

  36. Heh. I don’t always agree with Noah Rothman. Maybe Jazz and Noah are our alter egos at Hot Air.

    DRJ (e80d46)

  37. As Patterico shows, the prosecution can charge a defendant under this law and can make a good case that he should be found guilty. The clear words of the law seem to require it, and I agree that laws should be interpreted based on the accepted meaning of the words. But these are bad facts and it looks like the prosecutor just wants to prove how big a stick he has. Maybe this defendant deserved it but it’s hard to see from here.

    DRJ (e80d46)

  38. Sorry Patterico but I think you are all wet on this. Suppose buried within oil drilling regulations there was a requirement that “all drills must be at least 3 inches in diameter” and that phrase was used to prosecute some hapless dentist that had annoyed some mid-level bureaucrat? The majority are correct in their reasoning, IMHO.

    And about Sen. Hatch’s comments. I been saying for months (if not years), that if and when the Court rules for the plaintiffs on Halbig, the GOP will be politically compelled to address the issue with legislation. Millions of low income conservatives/libertarions/Republicans bought insurance through Halthcare.gov on the basis of: A) It was the law and B) They were promised subsidies.

    To allow these folks to be buried financially in the name of ideological purity would be insane.

    Mark Johnson (ecd980)

  39. I think when a prosecutor gets himself two convictions with a maximum publicity value err sentence of 25 years and the trial court imposes a sentence of 30 days, the trial court is sub silentio saying something like what you said, DRJ.

    nk (dbc370)

  40. hmm, I am thinking now that the fact that S-O statutes were used that the majority of SC
    justices were thinking that the guidelines of S-O should only be applied to securities/banking and not to fishing, shopping, etc . So yeah, context does matter at the macro level.

    seeRpea (1b7b74)

  41. I’ll take one more plunge. I think the division we saw in this opinion is between Justices who are judges and Justices who are intellectual ideologues with law degrees. Burgers vs. Rehnquists or Stevenses vs. Douglases. And I point to their respective resumes in support of my proposition.

    nk (dbc370)

  42. Why didn’t the gov’t stay on the boat or stay in close contact while escorting the illegal catch back to the dock?

    crazy (cde091)

  43. Maybe so, nk, although it’s hard for me to picture any of them as a trial judge. I tend to view this as bad facts make bad law.

    DRJ (e80d46)

  44. I’m so glad the Supremes got a few yucks our of the case. The whole ordeal has probably ruined Mr. Yate’s life and his business. Hilarious.

    So no warrant required by the administrative law cops to search your premises?

    Patricia (5fc097)

  45. I’m no maritime expert but I think customs officials can board and search vessels without a warrant.

    DRJ (e80d46)

  46. kinda like pirates

    happyfeet (a037ad)

  47. Did you see Kagan’s citation to Dr. Seuss in support of her claim that a fish is a discrete thing that possesses physical form? Can’t do anything but shake my head at the passive-aggresive silliness that the Justices are occasionally forced to resort to, rather than stating outright that they and their colleagues hold an office without oversight, consistent purpose, or enforcement power. Frustrating for us, frustrating for them.

    Why do we have a Supreme Court, again? To argue the metaphysics of ichthyology? Just admit that the Executive is going to do whatever it wants, regardless of your input, and you will save everyone a lot of reading.

    Leviticus (f9a067)

  48. Lighten up, Leviticus. Good for Kagan. For wisdom, judgment, fairness, and just plain moral and intellectual superiority, I’ll take any Dr. Seuss book over any Supreme Court opinion any time. I’ll bet your parents didn’t read to you from the Supreme Court Reporter when you were little — they read to you from Dr. Seuss.

    nk (dbc370)

  49. “For wisdom, judgment, fairness, and just plain moral and intellectual superiority, I’ll take any Dr. Seuss book over any Supreme Court opinion any time.”

    – nk

    That’s kinda my point, though I’m not sure I can feel anything but depressed about it.

    Leviticus (f9a067)

  50. I guarantee you’ll live this short, safe, and freeonline short story, or double your money back. http://www.munseys.com/disknine/satcamdex.htm

    nk (dbc370)

  51. *love*

    nk (dbc370)

  52. The internets have been buzzing with that for weeks, narciso. Ammo companies don’t like cheap surplus ammo available to the civilian market, it cuts into their profits in a big way, so they put in a word to their lobbyists along with the payola for their government contracts.

    nk (dbc370)

  53. Mr Tiger wrote:

    Rappists I meant.

    Well, I’m certainly glad that you meant rap “artists” rather than us papists. :)

    The Catholic Dana (f6a568)

  54. Patterico (9c670f) — 2/26/2015 @ 7:33 am

    First, let me make it clear. The regulations are stupid. Most of the fish were less than an inch too short. Anyone who reads this site regularly knows that I think government has no business being involved in such matters.

    This is probably the sort of regulation that makes sense, although the exact regulation may actually be bad.

    Size of fish is a good proxy for maturity or length of life, and the idea here is not to deplete the fishery and fish out all or most of the fish out of the sea. So they say take the adults but leave the juveniles or the young fish so they have a chance to reproduce. It’s a regulation of commerce that might make sense. (other ideas are limiting licenses, or size of boats, or the season, or having restricted areas of no fishing.)

    The problem here was that Yates was taking the too short fish to market, and perhaps he stretched the definition of minimum size. Throwing them back into the sea was what he should have done. But before this point in his fishing trip.

    The inspector did not have time or a reason to stay on the boat, and he just locked the fish away and indicated they would look at it later to see how egregious a violation of law this was. Maybe you need a certain percentage. Yates decided to fool the inspectors by substituting other fish.

    This must have made the prosecutor very angry when he heard about it, and he distorted the law when charging Yates.

    The interesting thing is, that by throwing the fish back into the sea Yates may have fulfilled the underlying purpose of the law. But if they’d have reached port, the fish probably would have died or been killed and not lived to breed, which would have been counter to the underlying purpose of the law! (I’m assuming they were still live fish at that point)

    Sammy Finkelman (a551ff)

  55. I don’t think prosecutors are wrong to take laws and apply them to new situations, which is what I think the prosecution did here. That’s what lawyers do in every case, since every case can reasonably be seen as a new situation. Thus, I don’t think this was prosecutorial misconduct.

    Nevertheless, I feels right to me that the Supreme Court interpreted “tangible object” under Sarbanes-Oxley to apply only to objects used in the destruction of records. What constitutes records, destruction, etc., may still be the subject of further interpretation in future cases, but IMO if Congress wants this rule extended to maritime and other tangible item cases then it should do so and not the courts.

    DRJ (e80d46)

  56. Patterico:

    But when he threw the fish overboard, he was trying to interfere with a government investigation. The majority opinion acknowledges that he could have been prosecuted under traditional laws dealing with evidence-tampering — including the other crime that he was convicted of.

    There was no need for this.

    the rule of law demands that we respect and apply a law designed to punish those who attempt to evade it.

    This was evidence tampering. That’s all it was. Congress did not see fit to impose a possible 20 year sentence for that. And when Congress passed the other law, they weren’t thinking of this situation.

    Otherwise, every person guilty of destroying property to prevent a federal seizure (§2232)
    would also be guilty of the newer crime, destroying a tangible object! (18 U. S. C. § 1519)

    Actually I think under the plain meaning of the law he is not guilty. 18 U. S. C. § 1519 talks about altering records. It speaks of “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent
    to impede, obstruct, or influence”

    The object has to be some sort of a “record” The law wanted to include inadvertent records, like for instance a napkin that had some writing on it, whose ink could be tested to see if it matched another record. Or an old, damaged, hard drive.

    It did include destroying records, but if you extend it to destroying any tangible object, you no longer have any need for the crime of evidence tampering.

    Maybe originally the prosecutor had in mind that the locked container was a record, but the fish were not locked away, so the fish became a “record” But they were the crime itself, not a record of it.

    And a fish is a tangible object. Which is really the whole point, and what this case is about.

    It’s a living creature.

    Furthermore, in another way I think it could be said that Congress did not contemplate this kind of situation. It contemplated “objects” that would normally have a more permanent existence, and would still be around but for an attempt to obstruct justice, and would normally be expected to be preserved for some time. Here, it was the government ordering its preservation, which was actually contrary to the spirit of the law.

    And another thing: Justice Kagan actually acknowledged there was something wrong, not just with this law, but other laws. It is too broad and undifferentiated, and she said this was emblematic of a deeper pathology in the federal criminal code. Not that everybody would get these extreme sentences, but this gave prosecutors too much leverage (for guilty pleas) and sentencers too much discretion.

    As for the similarity to King vs Burwell. I think it was the prosecutor who stretched the meaning of the law, not the defendant.

    Sammy Finkelman (a551ff)

  57. re #55: ditto

    seeRpea (181740)

  58. Mr Johnson wrote:

    And about Sen. Hatch’s comments. I been saying for months (if not years), that if and when the Court rules for the plaintiffs on Halbig, the GOP will be politically compelled to address the issue with legislation. Millions of low income conservatives/libertarions/Republicans bought insurance through Halthcare.gov on the basis of: A) It was the law and B) They were promised subsidies.

    To allow these folks to be buried financially in the name of ideological purity would be insane.

    What, we should somehow be more sympathetic to the “millions of low income conservatives/libertarions/Republicans (who) bought insurance through Halthcare.gov” than the millions of low income liberals/socialists/Democrats (who) bought insurance through Halthcare.gov?

    I am perfectly willing to allow those folks to be buried financially for sucking up another welfare program, and I don’t care whether they are Republicans or Democrats; I only care that they are leeches.

    The cold-hearted Dana (1b79fa)

  59. Sometimes a cigar is just a cigar, and tea leaves are just tea.

    Beldar (fa637a)

  60. In response to The cold-hearted Dana (may I call you The?):

    If it were only, or evenly largely, liberal leeches at risk in this case, the GOP’s political position would/could be much different.

    Uniformly labeling people caught between their bank-account and federal law, “leeches” is supercilious boorishness.

    Mark Johnson (614e1b)

  61. While there is indeed something fishy here, they were not leeches.

    htom (4ca1fa)

  62. The big fish eats the little fish.

    nk (dbc370)

  63. Nk, I don’t know you are upset with me, but I sure did enjoy reading this bit about Greeks and taxes. I had to share it with you.

    “Greeks consider taxes as theft,” said Aristides Hatzis, an associate professor of law and economics at the University of Athens. “Normally taxes are considered the price you have to pay for a just state, but this is not accepted by the Greek mentality.”

    http://www.wsj.com/articles/greece-struggles-to-get-citizens-to-pay-their-taxes-1424867495

    Wise people.

    Simon Jester (1c719a)

  64. Nk, I don’t know you are upset with me,

    ???

    nk (dbc370)

  65. Folks have been testy with one another recently.

    I always enjoy your classical education.

    Simon Jester (1c719a)

  66. Oh, so you let out an “if” not a “why”. I have no reason to be upset with you, Simon. As a matter of fact, I have been trying to emulate you. I have reached 91st level Scientist on Trivia Crack.

    nk (dbc370)

  67. No comment on Greeks wanting to feed from the government trough without putting anything in themselves.

    But you might find this interesting. Hatzis is hadji, someone who made the pilgrimage to Mecca. It’s a common surname in Greece, and part of the Muslim/Turkish culture which is interwoven in the fabric of modern Greece.

    (No, Mr. President, not like in the United States.)

    nk (dbc370)

  68. In return, I am thinking about learning knife throwing. I used to do it in high school.

    By the way, nk, did you know that the students on my campus are not permitted to have nerf guns or water pistols?

    Simon Jester (1c719a)

  69. Sigh. We had an indoor rifle range at Circle. The rifles were lent for free, the ammunition was 3 cents a round. Where America used to be.

    nk (dbc370)

  70. There is hope, nk. One of my research students is sick and tired of “Teh Authority” as she calls the administration.

    She is building one of these:

    http://www.instructables.com/id/Gatling-Rubber-Band-Machine-Gun-Easy-Weekend-Proje/

    She plans to use it the day she graduates.

    Simon Jester (1c719a)

  71. I could sure use an indoor rifle range from my carbine. I have a wonderful Marlin 1894 style carbine in .357. But the pistol range won’t let me use it there.

    Simon Jester (1c719a)

  72. Apologies, Patterico, for being off topic.

    Simon Jester (1c719a)

  73. As Patterico shows, the prosecution can charge a defendant under this law and can make a good case that he should be found guilty. The clear words of the law seem to require it, and I agree that laws should be interpreted based on the accepted meaning of the words. But these are bad facts and it looks like the prosecutor just wants to prove how big a stick he has. Maybe this defendant deserved it but it’s hard to see from here.

    I think there’s plenty to complain about here.

    There’s the ridiculous regulation, which is symptomatic of an out of control government.

    There is the very high punishment for the crime passed by Congress.

    I don’t think the punishment was overbearing, but there is room for complaint.

    Personally, though, I think that if Congress passes the law, and the words are clear (and to me they are), it’s not up to judges to rewrite it because they don’t like any of the above things to complain about.

    Patterico (9c670f)

  74. I don’t know if anyone’s planning to do a post here on the funding bill debacle, but it looks like Boehner is not going to bow to accept the DHS funding bill that the Senate is passing, which does not block funding for implementation of President Obama’s executive amnesty. According to the National Review Boehner wants to go to conference.

    Basically, Boehner is proposing that they follow regular order by objecting to the Senate amendment to the House-passed DHS funding bill and requesting a conference committee to iron out differences. It could put Democrats in a dicey position. If the conference committee struck a compromise position such as the one that Senate Majority Leader Mitch McConnell (R., Ky.) had favored — that is: legislation blocking just the 2014 orders, rather than the DACA program as well — Senate Democrats would not be able to prevent that bill, the conference committee report, from being debated, although they could try to filibuster a vote on final passage. The bill would not be amendable. That might put increased pressure on the seven Senate Democrats who claim to oppose Obama’s most recent 2014 orders. Certainly, Senate Democrats worry about the prospect of having a vote on such a bill, to judge from their decision to filibuster the House-passed DHS funding bill rather than allow it to be amended.

    Interesting.

    http://www.nationalreview.com/corner

    elissa (f27c84)

  75. Those are valid points, Patterico.

    Would this Sarbanes-Oxley provision apply to Lois Lerner regarding her emails?

    DRJ (e80d46)

  76. Oh, DRJ, you wouldn’t send poor Lois up for 20 years, would you? Five years for obstruction justice should be enough.

    nk (dbc370)

  77. I wouldn’t, actually, but I think it could fit based on the way the Court ruled in Yates. It would depend on what the facts show regarding what happened to the emails (records) and various computer hard drives (devices), but …

    DRJ (e80d46)

  78. it’s much less ridiculous than the ‘fish license’ I linked above,

    narciso (ee1f88)

  79. But if there were a conspiracy involved, I would consider charging it.

    DRJ (e80d46)


Powered by WordPress.

Page loaded in: 0.7107 secs.