Patterico's Pontifications

1/24/2006

Hmm, Wonder if all the Usual Suspects Will Support This One?

Filed under: Law — Angry Clam @ 7:23 am



[Posted by The Angry Clam]

Remember all the people who were supportive of San Francisco Mayor Gavin Newsom’s attempt to break California law judicially create homosexual marriage, and his misappropriation of public funds and public office in support of that effort?

How many of them do you think will cheer on San Diego County’s lawsuit against the state to overturn Proposition 215? After all, it’s just independently asserting its view of the law, right? Right?

Money quote: “‘For this one county to decide to go against the will of California voters, it’s unprecedented and it’s unconstitutional,’ said the ACLU’s Anjuli Verma.” See you in San Francisco, Anjuli.

– The Angry Clam

31 Responses to “Hmm, Wonder if all the Usual Suspects Will Support This One?”

  1. Anyone who thinks that the supporters of Mr Gavin’s action would support the San Diego County action must have gotten their hands on some of that medicinal marijuana.

    Dana (3e4784)

  2. That’s sort of my point.

    Angry Clam (fa7fff)

  3. I have no *objection* to the San Diego County action. I think they’re wrong on the merits, but they have every right to try.

    I *might* object if they were my county government, on the grounds that they were “representing” me in a way in which I disapproved, but they aren’t.

    aphrael (6b0647)

  4. “Remember all the people who were supportive of San Francisco Mayor Gavin Newsom’s attempt to break California law judicially create homosexual marriage”

    I thought he was doing it executively, not judicially.

    actus (ebc508)

  5. Newsom has no power as the leader of the city’s executive branch to act as if he’s a judge with the power to overturn a law. When Newsom did that, it was a blatantly illegal act. Perhaps the greasy-haired metrosexual mayor believed he had those powers, because his father was a judge.

    Justice Frankfurter (2dcd84)

  6. You’re right, Acthole, he was. Now perhaps you’d care to explain to the class why you think it is better for an executive to simply order his subordinates to flout the law than it is to challenge that law in court. Then, perhaps you’d care to identify all the principled gay marriage supporters who, consistent with that view, supported Newsom’s flouting of the law in 2004, but oppose the court challenges to that same law that are pending now.

    Xrlq (6c76c4)

  7. He also ordered the city to commence a lawsuit, which is currently ongoing, and as objectionable as the San Diego one.

    Angry Clam (fa7fff)

  8. Completely off-topic: via Drudge, Joel Stein doesn’t support the troops.
    Schmuck.

    http://www.latimes.com/news/opinion/commentary/la-oe-stein24jan24,0,4137172.column?coll=la-news-comment-opinions

    Susan (27f923)

  9. Clam, you’re forgetting the real distinction: San Francisco is both a city and a county. San Diego County, on the other hand, is just a county. Big difference. Right, Acthole?

    Xrlq (ffb240)

  10. Susan, Stein is being much more honest than the “I hate this dispicable, immoral war” but “I support the troops fighting it” nonsense.

    Harry Arthur (b318a5)

  11. Verma is using the word “unconstitutional” in the usual left-liberal sense of the word, i.e., a long-hand for “I don’t like it.” As to the unprecedented bit, I suspect he/she/it may have been attempting to be clever with the phrase “this one county.” After all, he/she/it never said it was unprecedented for any county to go against the will of California voters, only for this one county, San Diego. Unfortunately, it’s not exactly unprecedented for that San Diego County to go against the will of California voters, either. See, e.g., Rider v. County of San Diego, 1 Cal.4th 1 (1991).

    Xrlq (e2795d)

  12. “Now perhaps you’d care to explain to the class why you think it is better for an executive to simply order his subordinates to flout the law than it is to challenge that law in court. ”

    Ask the special prosecutor that gets nominated for investigating the NSA spying.

    “Big difference. Right, Acthole?”

    I have no idea what the problem is with San Diego. Haven’t been following. I just know that Newsom was doing something in the executive, not judicial branches.

    Gay marriage makes you think about holes doesn’t it? Thats twice now. Not that there’s anything wrong with that.

    actus (ebc508)

  13. have no idea what the problem is with San Diego. Haven’t been following. I just know that Newsom was doing something in the executive, not judicial branches.

    IOW, you don’t have a clue WTF you are talking about. Newsom has done both.

    Xrlq (816c74)

  14. “Newsom has done both.”

    Then why did you tell me I was right?

    actus (ebc508)

  15. There is actually a principle in law that a logical inconsistency is not necessarily a legal inconsistency. So a robber who kills his victim can be found guilty of armed robbery and involuntary manslaughter and acquitted of death penalty felony murder (real-life case). Why does everything have to make sense? Anyway, isn’t the medical marijuana B.S. moot after Raich v. Gonzalez?

    nk (57e995)

  16. nk-

    1) This is politics that I’m referring to, not the suit (which I think is prohibited, as subunits of the state don’t have independent authority to sue the state under California’s constitutional organization)- specifically, the politics of people carrying on about how it was Newsom’s duty to break laws he didn’t like.

    2) No, it isn’t. All Raich did was hold that the Feds do in fact have the power to ban weed. This drug ban isn’t a complete preemption, though- there’s a reason that there’s also state drug prosecutions, and decriminalization on the state level thus does serve a purpose.

    Angry Clam (fa7fff)

  17. Angry Clam – the notion that officials have a constitutional duty to break laws they believe to be unconstitutional is one with a long pedigree – although I don’t know that supporters of Mayor Newsom really want to find themselves keeping company with the likes of John Calhoun and Andrew Jackson.

    As for subunits of the state having the authority to sue the state itself – i’ll defer to your constitutional interpretation for the moment, as thi sis not an area of law i’m familiar with, but I find something troubling about the argument; it seems to suggest that if the Governor were to impound the money due the San Francisco Unified School District under the terms of the post-proposition-13 school funding plan, and refuse to release it, the school district could not sue him.

    Is that really the case?

    aphrael (e0cdc9)

  18. XRLQ – “unconstitutional” also has a long and somewhat erratic history. Once upon a time, the claim was successfully made on the floor of the House that it was unconstitutional for the federal government to pay for the construction of roads.

    aphrael (e0cdc9)

  19. “the notion that officials have a constitutional duty to break laws they believe to be unconstitutional is one with a long pedigree – although I don’t know that supporters of Mayor Newsom really want to find themselves keeping company with the likes of John Calhoun and Andrew Jackson.”

    So, then, even if you disagree with the Article II argument, do you think that it is appropriate for the Bush administration to ignore FISA in the wiretaps (disregard if you don’t think it applies; others can read this too)

    Angry Clam (a7c6b1)

  20. Aphrael, it’s one thing to disagree as to whether or not the tax and spend clause does or does not authorize the federal government to pay for X, Y or Z. It’s quite another simply to throw around the word “unconstitutional” as the political equivalent of a swear word, which Verma appears to have done here.

    Xrlq (816c74)

  21. For this one county to decide to go against the will of California voters, it’s unprecedented and it’s unconstitutional,’ said the ACLU’s Anjuli Verma

    Couldn’t that just as easily be said as…”For this one state to decide to go against the will of the national electorate, it’s …well…precedented but those precedents didn’t end well for that idea… and it’s unconstitutional,’ said Bob Loblaw.

    I don’t see how the ACLU’s Anjuli Verma has a leg to stand on…either A. it’s wrong for a subset of a large government to rebel against the larger government in laws the larger government has set down…In which case, California is in violation of Federal law, and is violating this principle necessating San Diego’s observation of the principle by opposing California, or B. it’s okay for a subset of a more federal government to rebel against the more federal government which supports the case California is making, BUT it also necessitates recongizing San Diego’s authority to do the same.

    Either way, I don’t see how San Diego is doing anything that the state of California can condemn unhypocritically.

    But then again, if your Eugene Volokh, to suggest that maybe the ACLU is loopy well you have ACLUDS.

    (Is it just me or has Eugene seemed to be attacking more religious individuals more frequently for what amounts to very poor reasons, with relatively weak rhetorical skill?)

    Joel B. (568776)

  22. The federal system of our national government, with competing sovereigns, works differently than the unitary sovereignty of the state of California over its sub-units.

    And I don’t know what you’re talking about regarding Eugene. He complains about dumb people saying dumb stuff. Where’s the “attacking religious people” angle, except “wow, Pat Robertson sure is a moron” kind of posts?

    Angry Clam (fa7fff)

  23. The federal system of our national government, with competing sovereigns, works differently than the unitary sovereignty of the state of California over its sub-units.

    While that’s no doubt true, there is at least some parallel. Perhaps more importantly the concept of “nullification” as useful an idea as it might have been (had it not been so tied up with slavery), died with the CSA.

    And by attacking more religious individuals I was more referring to his odd campaign against Clayton Cramer about the ACLU. With respect to his Pat Robertson post, even then while Pat Robertson may be in many respects a moron, the charge he leveled against him was also similarly poorly argued. If he wanted to say Pat Robertson was a moron for saying X. Fine, I wouldn’t have disagreed, but his point became since Pat Robertson said God struck down Sharon instead of Stalin God must not have minded Stalin as much as Sharon. Which was not related to what Pat Robertson was saying, if Eugene wants to construct straw men, to bat them down, that’s his perogative, but hey it does affect the way I look at the argument.

    Incidentally, during the Civil War, it is useful to remember that select counties of Virginia suceeded to form West Virginia and rejoin the Union. Dismissing the counties are to states as states is to US, is I think not warranted. And also, numerous states like counties, were formed out of wholly federal possessions, however once created the state had the rights of other states, similarly once created, the county government does have certain rights or perogatives that the legislature cannot completely abrogate.

    Joel B. (568776)

  24. Clam, I think Volokh’s objection to the attacks on the ACLU is a general objection to the approach that attacks the ACLU just for its status as an immoral, anti-American, sociopathic orientation, rather than for the substance of its immoral, anti-American, sociopathic arguments.

    TNugent (6128b4)

  25. Clam, that is a very good question, and has provided me with much food for thought. Thank you.

    As a preface, for the purposes of describing my starting place: I think that wiretapping civilians without a warrant constitutes a violation of the common-sense understanding of the phrase “unreasonable search”, although I admit that precedent allows it in some cases. I also generally take a restrictive view of executive power. I was torn over the actions of Mayor Newsom: part of me could not help but be cheered by the news that a government agency was performing gay marriages, while another part of me was well aware that Newsom was cynically manipulating the gay voters of San Francisco, and I was dubious about the legality of the actions.

    But neither of those are directly related to the question, which I take to be this: if an executive officer may ignore laws which he deems to be unconstitutional, does it follow that the Bush administration is within its rights to ignore FISA?

    On some level, I think the two can be distinguished. What Newsom did, as I understand it, was to assert that the equal protection clause prohibited discriminating between straight couples and gay couples, and that that discrimination – which was positively required by the law – was unconstitutional, and so he could ignore the part of the law which required the discrimination. What the Bush administration is doing is not strictly parallel, unless it is possible to claim that the constitution prohibits something required by FISA.

    A better case would be a situation in which Congress were to pass a law requiring, under certain circumstances, warantless wiretaps – and the President were to then decline to conduct such wiretaps on the grounds that the constitution prohibited them.

    But this troubles me: it does not seem to me that it can be the case that the President
    could ignore the Congress in one case (the law requiring wiretaps) but not in the other (the law requiring warrants), if he honestly believed both to be unconstitutional. If he is authorized to do one, he is also authorized to do the other.

    [I’m avoiding for the moment the question of the validity of the claim that FISA is unconstitutional: a rule which says that “the executive may ignore laws that the executive believes to be unconstitutional only if the laws actually are unconstitutional” strikes me as being unworkable].

    Yet if the executive is authorized to ignore any law that he deems unconstitutional, then it seems to me that Congress’ power is much reduced: it can pass laws but the President does not have to enforce them unless he chooses to! That cannot be correct.

    So it seems to me that the “constitutional duty to break laws they believe to be unconstitutional” argument is wrong; and that, however much I may have liked the outcome, I have to disapprove of what Mayor Newsom did.

    aphrael (6b0647)

  26. Yet if the executive is authorized to ignore any law that he deems unconstitutional, then it seems to me that Congress’ power is much reduced: it can pass laws but the President does not have to enforce them unless he chooses to! That cannot be correct.

    Actually, it is. For example, the loopiest antitrust law on the books, the Robinson-Patman Act, has not been enforced – and in fact, has been openly not-enforced – since the Carter era.

    If it sounds odd, it’s really no odder than the concept of separation of powers. What good is it to separate the legislative from the executive if either has the power to force the other’s hand?

    Xrlq (6c76c4)

  27. Hilarious quote from the ACLU. What scum they are.

    Brian (ab34e3)

  28. Clam, I think Volokh’s objection to the attacks on the ACLU is a general objection to the approach that attacks the ACLU just for its status as an immoral, anti-American, sociopathic orientation, rather than for the substance of its immoral, anti-American, sociopathic arguments.

    Its that so many of the attacks are BS wingnut rantings that attack a bogeyman, rather than whats real. That crazy Volokh!

    actus (85218a)

  29. “Its that so many of the attacks are BS wingnut rantings that attack a bogeyman…”

    Would that be like the ACLU’s attack on the Boy Scouts, or like demanding Las Cruces, New Mexico take the cross off it’s city seal?

    Black Jack (71415b)

  30. Black Jack, also check out ads run by ACLU which call the surveillance operations being run by NSA illegal and, in effect, call for Bush’s impeachment. I thought there was something in the tax laws that prohibited a 501(c)(3) from engaging in partisan activities. If so, it’s time to start enforcing those provisions vigorously, starting with ACLU. Make ’em pay income taxes, and disallow the deduction for every person that gives ’em anything. And make it retroactive as far back as the limitations provisions allow. Might put a serious dent in the ACLU’s operating budget, dontcha think?

    TNugent (6128b4)

  31. Yes, that or let Al Qaeda know the ACLU has been mixing Korans in with the Bibles it flushes down toilets at it’s Manhattan Headquarters. They do it during the doubleplusgood secret weekly celebration (casual dress required) on “Separation Saturdays.” Unconfirmed reports also mention a number of illegally parked vehicles with UN license plates in front of ACLU HQ.

    Rumors currently under investigation include the unproved charge that ACLU leaders do “bad things” before they flush the evidence. These charges have not yet been substantiated. However, it is known that an unusually large number of small and medium size Korans have been recently purchased at local area book stores.

    Black Jack (9f37aa)


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