Patterico's Pontifications


Oral Argument Today on Fifth Circuit Case Challenging Obama’s Most Recent Amnesty

Filed under: Court Decisions,General,Immigration — Patterico @ 7:29 am

There is an important oral argument taking place today in the Fifth Circuit regarding Obama’s amnesty.

First, a paragraph of background: there have been two amnesty-related cases of note percolating through the Fifth Circuit, and it’s important to keep them straight. One case has been around a while: the challenge to Obama’s action on the “Dreamers” — his “deferred action for childhood arrivals” or DACA. In the second case, a judge who has been very critical of Obama’s amnesty issued an injunction barring implementation of Obama’s recent and far more sweeping executive amnesty.

The DACA case has been decided; more on that below. Oral argument will be heard today on the injunction regarding the sweeping amnesty. Last month, Paul Mirengoff at Power Line gave us a summary and preview:

The United States Court of Appeals for the Fifth Circuit has issued an order that sets oral argument in Texas v. United States for April 17. This is the case in which Texas and other states challenge President Obama’s executive amnesty.

In district court proceedings, Judge Hanen temporarily enjoined the government from enforcing Obama’s program to grant lawful status to millions of illegal immigrants. The government has moved for a stay of that order, pending appeal.

The oral argument on April 17, for which two hours have been allocated, will pertain only to the government’s motion for a stay. As for the merits of the injunction, the Fifth Circuit’s order sets a briefing schedule and permits the filing of briefs by a number of amici, including Senators Cruz and Cornyn.

Mirengoff reports that the government is arguing that Obama’s amnesty is somehow “essential to national security” because it helps ICE agents “quickly distinguish dangerous immigrants from those who pose no threat.” Expect this to come up in the oral argument.

Oral arguments can be very revealing, as the resolution of the DACA/Dreamers case shows. Recall my prediction. Last month, after listening to the audio of the oral argument in that case, I told you:

I’m the guy who told you that the panel was going to rule against Obama in Halbig, based on listening to the oral argument. Unfortunately, I have to be the guy to tell you that — unless I am interpreting the argument incorrectly — the Fifth Circuit is probably going to rule for Obama here.

And that is exactly what happened, 10 days ago. Politico reported (Google cache link, no links for bullies):

A federal appeals court’s ruling Tuesday upholding the dismissal of a lawsuit over President Barack Obama’s first major executive action to aid illegal immigrants could help the Obama administration fight a more significant suit that has resulted in Obama’s second wave of immigration orders being halted nationwide.

A three-judge panel of the 5th Circuit U.S. Court of Appeals unanimously ruled that several immigration agents and the state of Mississippi lacked legal standing to sue over Obama’s 2012 Deferred Action for Childhood Arrivals program because evidence that the agents or the state would be harmed by the effort was too speculative.

“Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA,” Judge W. Eugene Davis wrote in an opinion joined by Judges Carolyn King and Priscilla Owen.

Always trust content from Patterico.

We’ll see what today’s argument holds in store. I admit to a lack of optimism, but that is characteristic of my personality. I’ll report more on it when I get a chance to hear the audio.

UPDATE: I should note that on the earlier case, I thought they might grant standing but deny on the merits — and they tossed it on standing. Details.

The audio of today’s oral argument is here. I have heard about half an hour or so. More later.


Today in Failed Criticism from the Left

Filed under: Abortion,Court Decisions,General — JVW @ 10:56 am

[guest post by JVW]

How many of you have seen this recent image bouncing around the Internet? It was apparently created by the deep thinkers at NARAL Pro-Choice America and has been promoted by the DailyKos and Huffington Post among others.


The idea, naturally, is to call attention to the idea that Christian groups who object to covering contraception and/or abortifacients are somehow being hypocritical if they have no objection to also covering Viagra or other erectile dysfunction treatment medication.

I’m going to pull back the curtain here and divulge a hitherto super-secret and never disclosed principle of Catholic theology [did the sarcasm come through enough there?] which explains why covering Viagra is acceptable whereas covering birth control pills is not, and I think this principle is also adopted by other religious groups who follow the same standard:

Viagra is used to facilitate a process which can lead to conception.

Birth control pills are used to prevent conception.

It really is as basic as that, but somehow this simple concept is way beyond the comprehension of the gender politics warriors whose voices dominate public discourse in these matters.



Another Example of How Lawyers Ignoring the Plain Meaning of Language Go Astray

Filed under: Court Decisions,Crime,General — Patterico @ 12:30 am

Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training.

California Penal Code section 288.7(a) reads as follows:

Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

That simple language in bold is apparently too difficult for some judges to understand.

Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law?

As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem?

It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses.

That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies.

I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case!

This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.”

Legislative history. Aaaaaargh!

So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap.

Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control.

Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way.

But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??”

It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.


Supreme Court Scolds 9th Circuit

Filed under: Constitutional Law,Court Decisions,Judiciary,Law — Jack Dunphy @ 8:27 pm

[Guest post by Jack Dunphy]

The Washington Post reports today on a series of recent Supreme Court opinions which overturned decisions by the 9th Circuit. Post writer Robert Barnes informs us:

Sometimes the Supreme Court simply decides cases and sometimes it seems to have something bigger in mind. In the past two weeks, it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.

Barnes goes on to offer a characterization of Judge Stephen Reinhardt that will come as no surprise to regular readers of this blog. Reinhardt, he writes, is “widely considered to be the nation’s most liberal appeals court judge.”

Indeed. Read the whole thing.

–Jack Dunphy


Judge Refuses to Dismiss Two Counts in Obamacare Suit

Filed under: Civil Liberties,Constitutional Law,Court Decisions,Obama — Aaron Worthing @ 11:54 am

[Guest post by Aaron Worthing]

Of course another suit in Michigan resulted in this law being upheld, so we are getting a split in the circuits.  I will say honestly I have not even read the whole decision yet, but I will and if I have any special insight, I will share it.  For now, I just want to make it easier for you to find the decision, if you are inclined to read it.

[Posted and authored by Aaron Worthing.]


Needed: An Initiative to Get the Death Penalty Working Again

Filed under: Court Decisions,Crime,General — Patterico @ 7:24 am

As I noted last night, a Clinton-appointed judge named Jeremy Fogel has granted a stay of execution in the case of a man convicted of raping and killing a 15-year-old child in 1980.  There is no denying he is guilty.  Yet his execution will be held up until at least next year so that the judge can “conduct an orderly review” of a new execution protocol that the judge admits has not been shown to be deficient — and that the judge admits is superior in several demonstrable ways to a Kentucky protocol found constitutional by the U.S. Supreme Court.

The decision points up the need to have different methods of execution available to a condemned man in California, so that illusory deficiencies in one method will not hold up the execution of a clearly guilty man who has committed a monstrous crime.

As I see it, realistic possibilities include:

  • Firing squad.  To my knowledge, the firing squad has never been held unconstitutional anywhere.  Several bullets to the head should produce a rapid and certain death.
  • Gas chamber retrofitted with carbon monoxide.  As far as I know, California’s gas chamber, which formerly used cyanide, is still around and functioning.  Death by cyanide was improbably ruled unconstitutional by Carter appointee Judge Marilyn Hall Patel in the 1990s.  Her decision was affirmed by the Ninth Circus in a decision written by Carter appointee Harry Pregerson, and not appealed. But there is absolutely no reason we can’t retofit the chamber to use a non-painful gas such as carbon monoxide.
  • Overdose of barbiturates.  Even our friend the liberal judge Fogel claims that this would be constitutional. Of course, there are issues: there is currently a nationwide shortage of the drug we used to sedate prisoners, and it could be discontinued almost entirely. Furthermore, the method found hunky-dory today will be declared horribly cruel tomorrow. Best to have several alternatives on the table.

This will have to be done by initiative.  Our Democrat legislature will not vote to authorize new methods of capital punishment.  Nor would any any such law be signed by Jerry Brown if were to be elected Governor.  (I will have more to say about the conduct of the Attorney General in this case in a future post.  Suffice it to say that he has not defended capital punishment in California as he claims he has.)

What we need is someone to bankroll an initiative authorizing these alternatives. Commenter Dana notes that a poll conducted this summer (.pdf) found that 7 in 10 Californians continue to support capital punishment. Citizens don’t want to see it used in every case, but they want it available for the worst of the worst. Over 700 such people currently sit on Death Row. If we don’t fix the situation they will all die of old age.

Albert Greenwood Brown raped 15-year-old Susan Jordan and strangled her to death with one of her shoelaces. The courts say he can’t suffer too much pain when he dies. That’s outrageous enough — but letting him live is more ridiculous. Let’s do what it takes to dispatch this fellow to the fate he deserves.


Arizona Ruling (At Urging of Obama Administration) Undermines “Deport the Criminals First”

Filed under: Court Decisions,Deport the Criminals First,Immigration — Patterico @ 7:04 am

On this blog I have had a recurring series called “Deport the Criminals First.” The idea is that, unless you are in favor of a complete open border policy, you would want to see the most undesirable illegal immigrants deported first: criminals, starting with violent criminals. I have therefore advocated checking the immigration status of every person arrested for a crime, especially violent crimes, and ensuring that we have sufficient resources to identify and deport violent criminals once they have served their sentences.

I see this as a completely noncontroversial and bipartisan proposal. I have repeatedly highlighted the tragic and often fatal consequences that visit victims when law enforcement fails to take this very basic step.

Professor William Jacobsen notes that, in the most startling portion of yesterday’s outrageous decision blocking implementation of most of Arizona’s immigration law, law enforcement officials are now apparently prevented from running such basic, common-sense immigration checks:

The inability of a state to implement a policy of checking the immigration status even of people already under arrest for some other crime is remarkable.

. . . . [S]tates already routinely run searches for a variety of statuses, including outstanding warrants, child support orders, and non-immigration identity checks. Each of these checks potentially could delay release of an innocent person or burden some federal agency.

The Judge’s reasoning, particularly that the status check provision violated the 4th Amendment even as to persons already under arrest, applies just as easily to these other status checks.

With a federal government which refuses to take action at the border until there is a deal on “comprehensive” immigration reform, meaning rewarding lawbreakers with a path to citizenship, this decision will [e]nsure a sense of anarchy. The law breakers have been emboldened today, for sure.

Understand clearly what is happening, according to Professor Jacobsen. Officials who arrest illegal immigrants for crimes, even violent ones, are apparently blocked from checking the immigration status of those suspects, under the reasoning of a decision that invalidates as unconstitutional a policy requiring such checks.

I have not read the ruling myself to verify this, but if this is true, it is stunning.

This can’t get to the Supreme Court fast enough. Let’s hope it gets there before Obama packs the court with more liberals who would turn a blind eye to common sense.


More on That Ninth Circuit Decision Granting Voting Rights to Felons in Washington State

Filed under: Court Decisions,Crime,General,Race — Patterico @ 10:54 pm

DRJ reported the basics here, quoting a story that said:

Attorneys for six Washington state prisoners, Circuit Court Judge A. Wallace Tashima wrote, “have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways.”

Joined by Judge Stephen Reinhardt in the majority opinion, Tashima found no “race neutral” explanation for the higher incarceration rates and reversed a U.S. District Court decision in favor of the felons.”

There’s a lot to say about this decision; probably more than can be said in a single blog post.

My first reaction is one that I have expressed many times before: how in the hell does Stephen Reinhardt manage to get onto the panel on every hot-button liberal issue the Ninth Circuit ever takes up?

To me, the biggest concern flowing from this decision is the precedent that federal courts can now make sweeping declarations about the discriminatory nature of the criminal justice system based on dubious studies by sociology professors. (More about that in the extended entry below.) The implications are potentially staggering and go far beyond felons’ right to vote. If federal courts can declare the entire system of criminal justice in a state (or the country!) to be racially discriminatory, you could see an invalidation of Three Strikes laws or any other recidivism statute. You could see a sweeping invalidation of laws prohibiting felons the right to possess firearms. And that could be just the tip of the iceberg.

Commenter carlitos points out another potentially disturbing impact of the decision: its potential effect on rural districts with big prisons. Given that the decision explicitly extends to currently incarcerated inmates, you’re potentially looking not just at a huge bump in the number of Democratic voters as a whole, but also very concentrated bumps in districts that otherwise would likely be reliably Republican.

What bothers me more than anything else is the way that the judges rely on dubious methodology that they don’t even seem to understand.

The rest of this post cites some of the source material and gets into a little more detail concerning that methodology. For those of you with less interest in the topic or shorter attention spans, I’m tucking this part in the extended entry.



Dumbass Federal Judges Push Release of Criminals Who Are Bunked ALMOST As Tight As Sailors in a Submarine

Filed under: Court Decisions,Crime,General,Morons — Patterico @ 1:45 am

[Editor’s note: if you’re mortally offended by profanity, you might want to skip this post. However, those who are shocked to see the f-word on a blog should be even more shocked to see 40,000 state prisoners unleashed on our state. Consider being shocked by that which is truly shocking. — P]

My wife, God bless her, just had us watch the saddest movie I have ever seen. Tears were streaming down my face and I wasn’t ashamed.

The movie is called “Dear Zachary: A Letter to a Son About His Father.” I don’t want to give away anything about the movie, but it is utterly heartbreaking, and a reminder that government has an obligation to protect its citizens from violence, and to remove violent people from the streets. Enough said about that; I don’t want to spoil it for you.

And hey! what do you know? It just so happens that I see this movie when this comes across my computer screen:

A panel of federal judges, accusing California officials of obstruction, on Thursday denied the state’s request to delay an order to produce a plan for reducing its prison population by 40,000 inmates.

I have a message for this panel of federal judges — which the L.A. Times doesn’t say and will never, ever say are all Democrat appointees:

Honorable Lawrence Karlton: fuck you.

Honorable Thelton Henderson: fuck you.

And you, the right Honorable Stephen Reinhardt: fuck you.

People are going to die because of this decision you have made. Don’t pretend they won’t, because they will. Lily Burk died at the hand of a petty thief, you know. I’m told he did something bad a long, long time ago — but he’s just a petty thief now. He’s non-violent. Just like the 40,000 non-violent people you assholes are about to release.

And why are you doing this? Because convicted felons in California aren’t entitled to luxury five-star accommodations. Why, they’re crammed into their cells in conditions almost as cramped as this:

Submarine Bunks 01

and this:

Submarine Bunks 1

and this:

Submarine Bunks

It’s a wonder submarine sailors didn’t kill each other during WWII. You can tell from the grim looks on their faces that they’re about to engage in a bloody race riot.

I’m sorry I’m just a little profane here. But somehow, typing a couple of four-letter words in a blog post doesn’t seem as extreme as writing an order that is going to kill people. So fuck you, dumbass judges. When the first person dies at the hand of one of these criminals you released, I’m going to be here to shove it right up your ass.

And if you’re wondering why I’m angry, go watch the movie I just finished watching, why don’t you, and learn about the real-life consequences of stupid fucking decisions made by stupid liberal judges.

P.S. Once you’ve seen the movie, the phrase “Keystone Cops” will take on a whole new meaning.

UPDATE 9-7-09 11:50 a.m.: A reply to some reactions in the comments.

One commenter says I am threatening the judges. Yes: I am “threatening” to remind the public, after someone dies, that it is these judges’ fault. It should be obvious from the context that I’m not physically threatening them — although it should be obvious that their decision is physically threatening the citizenry of California.

To the commenters who say that the judges are really just doing their job, and that it’s really the legislature’s fault: again, look at the photos of the sailors. Those are the sorts of conditions these judges have declared unconstitutional. The decision by these three liberal hacks was not compelled by the law. It was activism, pure and simple, and it’s going to result in people dying. It’s about time someone got passionate about that — and so, while it’s a little out of character for me to curse, maybe doing so will get people’s attention because it’s out of character.

Finally, one commenter says: “Patrick: As a member of the bar, you should not be cursing judges.” Hey, if they want to bring me up on disciplinary charges for cursing them and their lousy decision, I say: bring it on. That would be a great way to focus a spotlight on what is about to happen to this state. And I would win eventually, because guess what? we still have a First Amendment in this country.

So fuck them.


No Pot of Gold in Police Shooting

Filed under: Court Decisions,Crime,General — Jack Dunphy @ 3:08 pm

[Guest post by Jack Dunphy]

Yesterday, Superior Court Judge Rolf M. Treu dismissed a lawsuit against the Los Angeles Police Department as the case was about to go to the jury for deliberations. The action was brought by Lorena Lopez, mother of 1½-year-old Suzie Pena, who was killed in July 2005 as her father, Raul Pena, exchanged gunfire with police in South Los Angeles. Raul Pena was using his daughter as a human shield when both she and he were killed by police gunfire. I discussed the incident and its immediate aftermath here, at National Review Online.

Judge Treu granted a defense motion for a dismissal, ruling that the jury could only have reached the conclusion that the officers had acted properly. The defense presented a number of expert witnesses while the plaintiffs offered only one, retired LAPD commander Paul Kim, who, judging from his long but otherwise undistinguished police career, isn’t much of an expert on anything.

The below photo, from the L.A. Times website, shows City Attorney Carmen Trutanich and members of his staff reacting to the judge’s decision.


The photo inspired many people to leave comments voicing their displeasure that Trutanich should react so gleefully when, after all, a little girl had been killed. I’m sure Mr. Trutanich would rather his picture not been taken at that moment, but was he wrong to be pleased that the city of Los Angeles and the involved police officers had been spared from a multi-million-dollar judgment? Of course not. His lawyers worked hard, performed well, and achieved a just outcome. Suzie’s tragic death, and the less-than-tragic death of her father, did not produce a pot of gold for her mother and her lawyers.

–Jack Dunphy

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