Patterico's Pontifications


U.S. vs Arizona (Updated)

Filed under: Immigration,Law,Obama — DRJ @ 2:26 pm

[Guest post by DRJ]

Today the Obama Administration sued the State of Arizona, challenging the constitutionality of a recent law that targets illegal immigrants and arguing Arizona doesn’t have the right to pre-empt the federal government’s authority over immigration:

“The federal government’s legal case turns on the question of pre-emption — the notion that only Washington has the authority to set immigration policy. The Justice Department’s complaint says that Arizona’s statute, which Republican Gov. Jan Brewer signed in April, “is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.”

Here are links to the Government’s Complaint and Brief. The Complaint sets forth three counts:

  • Violation of the Supremacy Clause;
  • Federal pre-emption; and
  • Violation of the Commerce Clause.
  • The Obama Administration requests a declaratory judgment that the Arizona law is null and a preliminary and permanent injunction against enforcement of the law. It also seeks costs against the State of Arizona.

    To obtain a preliminary injunction, the federal government must meet each part of a four prong test: (1) a substantial likelihood of success on the merits; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) that the threatened injury outweighs any damage that the injunction may cause the opposing party; and (4) that the injunction will not disserve the public interest. Just as Judge Feldman did in blocking Obama’s moratorium on offshore drilling, the Court in this Arizona case will balance the injury on the parties and consider the impact the injunction will have on “the public interest.”

    Professor Jacobson at Legal Insurrection says the case has been assigned to U.S. District Judge Neil V. Wake. Because the Obama Administration is seeking a preliminary injunction, Judge Wake will give us an early view of his stand on this case when he rules on whether there is a “substantial likelihood” the Obama Administration will prevail on the merits.

    — DRJ

    UPDATE: Arizona Governor Jan Brewer has sent out a request for donations to help Arizona defend its law.


    New Black Panther Whistleblower to Testify Before Civil Rights Commission (Updated)

    Filed under: Civil Liberties,Law,Obama — DRJ @ 5:40 pm

    [Guest post by DRJ]

    The Washington Times editors and the bloggers at PowerLine are concerned that the major media aren’t interested in the New Black Panther case, which they find odd since it involves one of the media’s favorite creatures — a whistleblower. (The problem is he’s a conservative.) Fortunately, though, the Civil Rights Commission is interested:

    “As voters were casting the ballots that elected America’s first black president in November 2008, a troubling incident occurred outside a polling place in North Philadelphia, the Justice Department later contended.

    There, two members of the New Black Panther Party for Self-Defense hurled racial threats and insults at black and white voters, federal prosecutors in the Justice Department’s Civil Rights Division alleged in a complaint accusing the group and three members of violating the federal Voting Rights Act.

    The prosecutors later won a default judgment against Minister King Samir Shabazz, whom they identified as leader of the Philadelphia chapter, and sought dismissal of charges against the organization and two other members.

    Now, one of the prosecutors, J. Christian Adams, has resigned from the Justice Department amid a widening flap over the case. He said he was scheduled to testify Tuesday before the U.S. Civil Rights Commission in an investigation over dismissal of the charges.”

    The U.S. Commission on Civil Rights has posted on its home page a press release regarding Adams’ testimony scheduled for this Tuesday, July 6th. (Click on “Hearing Scheduled for July 6, 2010, 9:30 a.m. EDT” under Commission Investigations.) Also posted are numerous documents in the New Black Panther Investigation.

    H/T PJ Media.

    — DRJ

    UPDATE 7/6/2010: Pajamas Media reports former DOJ attorneys have come forward to support Adams. In addition, in his testimony before the Civil Rights Commission today, Adams described the Voting Rights Section as lawless.


    Inside the Obama DOJ

    Filed under: Law,Obama — DRJ @ 12:48 pm

    [Guest post by DRJ]

    The Washington Times takes us Inside the Black Panther Case and, in the process, reveals the Obama Administration’s corruption of law and justice:

    “On the day President Obama was elected, armed men wearing the black berets and jackboots of the New Black Panther Party were stationed at the entrance to a polling place in Philadelphia. They brandished a weapon and intimidated voters and poll watchers. After the election, the Justice Department brought a voter-intimidation case against the New Black Panther Party and those armed thugs. I and other Justice attorneys diligently pursued the case and obtained an entry of default after the defendants ignored the charges. Before a final judgment could be entered in May 2009, our superiors ordered us to dismiss the case.

    The New Black Panther case was the simplest and most obvious violation of federal law I saw in my Justice Department career. Because of the corrupt nature of the dismissal, statements falsely characterizing the case and, most of all, indefensible orders for the career attorneys not to comply with lawful subpoenas investigating the dismissal, this month I resigned my position as a Department of Justice (DOJ) attorney.”

    Read the entire thing, and weep.

    H/T G and John Hitchcock.

    — DRJ


    Why the BP Shakedown Matters

    Filed under: Law,Obama — DRJ @ 12:08 pm

    [Guest post by DRJ]

    Several days ago (before the New Orleans federal judge lifted Obama’s moratorium), J.E. Dyer at Hot Air’s Green Room looked at what would have happened without the BP shakedown:

    “Following the rule of law would produce relief for the oil spill’s victims. It just wouldn’t put Obama’s appointee in sole charge of a $20 billion fund. That has a meaning beyond the “Chicago” implication of pure extortion, fund-skimming, and payola. It means Obama couldn’t use the money to cushion the near-term consequences of his own policies. He’d be constrained by that pesky rule of law, if he weren’t holding the discretionary purse strings for the damages payouts.

    The most obvious current evidence of that relates to his moratorium on deepwater drilling. A lot of people are losing their livelihoods because of it. A lot of businesses will be going under, and a lot more jobs will be lost. The losses will be in the billions just this year alone. But Obama didn’t have to take this action. He wasn’t even advised to by professional experts.

    A judge in a federal court would take that into account as lawsuits came pouring in against BP. Even assuming BP is found to have liability through negligence when this is finally adjusted in court, there is every possibility that BP would not be found liable for the drilling shut-down itself, and all the business and jobs lost because of it.

    Making BP pay the freight for his agenda-driven, business-killing moratorium is an abuse of executive authority on Obama’s part. He’s extorting BP for his payoff fund, to be used on the thousands of “small people” who will see their way of life destroyed, not by the oil spill but by Obama’s agenda-perfect reaction to it.”

    Combine the $20B shakedown with Obama’s renewed efforts to impose some form of an offshore drilling moratorium, and effectively BP’s $20B fund will pay for more than the impact of the oil spill because some money will undoubtedly go to pay people affected by Obama’s moratorium. Did BP specifically agree to that in writing? I doubt it, and absent that only a court should be allowed to determine damages and compel payment (let alone compel payment in advance).

    Then there’s the offshore drilling moratorium itself, which the Administration indicates will continue in some form for some time. Affected businesses are suing to stop the moratorium and have been successful so far, but the Obama Administration nevertheless has the upper hand adn can delay or halt a lot of drilling. This not only has a disastrous job-killing impact on oil-producing states, it reduces domestic oil and gas production and opens the door to more government strong-arm tactics and corruption.

    Over time, our memories of the BP Oil Spill will blur as they did after the Exxon Valdez cleanup, but the oil and insurance industries won’t forget. Imagine how much more American offshore oil and gas exploration will cost in the years to come, if there is any worth mentioning.

    Finally, that all pales in comparison to the damage done to the rule of law. America’s laws govern how we live and what our government can do … but President Obama is shredding those rules when it comes to business and capitalism. Conservatives believe capitalism and the rule of law are key pillars of democracy. President Obama is doing his best to prove they aren’t.

    — DRJ


    Supreme Court Curtails “Honest Services” Prosecutions

    Filed under: Law — DRJ @ 4:17 pm

    [Guest post by DRJ]

    The U.S. Supreme Court today limited when prosecutors can use the so-called “honest services” law in criminal cases.

    I blogged on the Skilling case here and here, and Patterico touched on it briefly here.

    — DRJ

    Judge Feldman Won’t Back Down (Updated)

    Filed under: Law,Obama — DRJ @ 2:07 pm

    [Guest post by DRJ]

    In response to Judge Martin Feldman’s recent order enjoining the Obama Administration’s 6-month moratorium on Gulf drilling, Secretary Ken Salazar first said he would reissue the moratorium with better reasons and now suggests he will revise it in a more limited fashion. At the same time, the lawyers returned to Judge Feldman’s courtroom to ask for a stay, although to no avail. Instead of a blanket moratorium, the government’s new moratorium may focus on exploratory wells in unknown formations.

    Judge Feldman will also provide updated financial disclosure documents.

    The facts are very different but this judicial vs executive branch showdown is starting to remind me of Judge John J. Sirica and President Richard Nixon. The Obama Administration would do well to avoid those comparisons.

    — DRJ

    UPDATE: In the comments, Aaron Worthing links a Bayou Buzz report that states Judge Feldman disposed of conflicting oil and gas holdings in 2008 at some point in the past. Presumably Judge Feldman’s disclosure will confirm whether the Bayou Buzz information is correct or not.


    Public Interest Group vs McDonalds

    Filed under: Law — DRJ @ 7:59 pm

    [Guest post by DRJ]

    A public interest group plans to sue McDonalds for putting toys in its Happy Meals that help make kids fat. The story teaches us two things:

  • The Center for Science in the Public Interest repeatedly uses lawsuits to force businesses to negotiate.
  • </block quote

    That's true.

  • Some parents are held captive by their children’s dietary and entertainment demands.
  • That’s also true, but it doesn’t make it McDonalds’ fault.

    — DRJ

    Report: DOJ Suit Against Arizona will be Filed Next Week

    Filed under: Immigration,Law — DRJ @ 7:35 pm

    [Guest post by DRJ]

    Jake Tapper reports the Obama Administration’s one-week countdown declaring legal war against Arizona has started.

    Mexico will undoubtedly seek leave to file an amicus brief supporting the Obama Administration. The law firm of “Dewey & LeBoeuf is representing the Government of Mexico on a pro bono basis.”

    — DRJ

    Chrysler Arbitration and Other News

    Filed under: Law — DRJ @ 6:51 pm

    [Guest post by DRJ]

    Chrysler terminated hundreds of its dealerships as a part of the Obama Administration’s restructuring plan / bankruptcy. Congress ultimately established an arbitration system for terminated dealers, and the Denver Post looks at the status of Colorado’s terminated dealerships and finds 8 of 14 revoked franchise agreements were reinstated. That’s a pretty bad track record for Chrysler and apparently management isn’t taking it well.

    I bet Chrysler is even more upset that the Indiana Pension Fund is back.

    — DRJ

    Reviewing the Moratorium Decision

    Filed under: Law — DRJ @ 3:56 pm

    [Guest post by DRJ]

    I know everyone is tired of this but indulge me for one last post.

    The 5th Circuit standard of review of the grant of a preliminary injunction is set forth in Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.1989) following a 1975 Supreme Court case:

    Our standard of review for the grant of a preliminary injunction is “whether the issuance of the injunction, in the light of the applicable standard, constitute[s] an abuse of discretion,” Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975).

    See also Affiliated Professional Home Health Agency vs Shalala, 164 F.3d 282 (5th Cir. 1999):

    Our standard of review for a district court’s granting of a preliminary injunction is “whether the issuance of the injunction, in the light of the applicable standard, constitutes an abuse of discretion.” Concerned Women for America, Inc. v. Lafayette County, 883 F.2d 32, 34 (5th Cir.1989). In performing that review, findings of fact that support the district court’s decision are examined for clear error, whereas conclusions of law are reviewed de novo. Id.

    This standard of review means the appellate court will decide for itself — i.e., decide de novo — the law that applies in the case being appealed, but it will only reverse Judge Feldman’s factual findings if they are clearly erroneous. The factual findings in this case arguably include that the government failed to consider other alternatives to a moratorium, did not balance competing interests, and did not factor in the impact on the public and affected parties.

    The standard of review is what will make this a difficult decision for the government to reverse.

    — DRJ

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