Patterico's Pontifications


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.]


Starting with Chapter Two

Filed under: Constitutional Law,Current Events — Jack Dunphy @ 9:33 pm

[Guest post by Jack Dunphy]

“When you don’t win an argument on the merits, change the subject. That seems to be the favorite tactic of groups opposed to marriage equality for same-sex couples.”

So begins an op-ed piece, “Lose the ruling, attack the judge,” in Friday’s Los Angeles Times. The column was written by Jon W. Davidson, the legal director of Lambda Legal, the organization that brought the federal lawsuit attacking California’s Proposition 8, so it comes as no surprise that it supports U.S. District Court Judge Vaughn Walker’s decision to rule the proposition unconstitutional.

But note where Davidson chooses to begin his timeline, rather like picking up a book and starting with chapter two. I recall there being an election some time ago, one in which a majority of California voters — for the second time — made known their preference to define marriage as it has been understood for thousands of years.

I propose an alternative opening for the column, one that more accurately reflects the sequence of events: “When you don’t win the argument at the ballot box, as indeed advocates for homosexual marriage have failed to win in even a single instance in the 31 times they’ve tried, take the campaign to the more accommodating venue of the courtroom. There, a lone judge, blessed with finely attuned senses denied to both his predecessors and the ignorant proles of the voting public, can discover a constitutional right that mysteriously remained undetected through all our nation’s history. That seems to be the favorite tactic of groups advocating for same-sex marriage.”

–Jack Dunphy


Philadelphia Squares Off Against Boy Scouts

Filed under: Civil Liberties,Constitutional Law — DRJ @ 4:03 pm

[Guest post by DRJ]

In 2008, the City of Philadelphia was sued by a local Boy Scout organization over City threats to end a $1-a-year lease of city property improved substantially by the Boy Scouts. The basis for terminating the lease is the Boy Scout’s policy refusing membership to gays.

The attorney for the local Boy Scout group argued the City is using its leverage over the property to force the local group to renounce the Boy Scouts’ national policy toward gays. Instead of making it an argument about homosexuality, however, the local group is apparently trying to walk a fine line between abiding by the national policy and serving local Boy Scouts. Thus, the local group’s first witness will be a former director who struggled with conflicting demands. On the other hand, the City’s first witness is an Eagle Scout who was forced out after announcing he was gay.

One interesting aspect of the case is that the local Boy Scout group sued first, in anticipation of having its lease terminated by the City. Thus, the local group will present its case and the City will respond as defendant.



Kagan: Forming a Majority Against a Constitutional Right to Same-Sex Marriage?

Filed under: Constitutional Law,Judiciary — Patterico @ 6:25 am

William Jacobson notes that Elena Kagan has declared: “There is no federal constitutional right to same-sex marriage.” That is, if she was telling the truth when she answered a questionnaire from Sen. John Cornyn (p. 28 at this .pdf link) during her confirmation process to become Solicitor General:

a. Given your rhetoric about the Don’t Ask, Don’t Tell policy—you called it “a profound wrong—a moral injustice of the first order”—let me ask this basic question: Do you believe that there is a federal constitutional right to samesex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

Prof. Jacobson notes: “Reasonably assuming the four conservative judges share Kagan’s view, there now will be a definite majority on the Court against recognizing a constitutional right to gay marriage.” This is relevant because that case started by David Boies and Ted Olson will be percolating its way through the system towards the Supreme Court at some point.

I pretty firmly believe that Justice Kennedy would also be a vote against putting gay marriage in the Constitution, which I think he would see as a step too far. But you never know for sure. If Kennedy decided to find this right among those encompassed by what Justice Scalia has called the “famed sweet-mystery-of-life passage,” then Kagan would be a fifth vote against him.

If she told the truth.


Boehlert Lies Again

Filed under: ACORN/O'Keefe,Constitutional Law,General — Patterico @ 7:22 am

Eric Boehlert is at it again.

The dressed-as-a-pimp storyline was one Breitbart, O’Keefe, and others eagerly pushed last fall. And it was one the press quickly embraced. (In truth, O’Keefe was often dressed rather conservatively — slacks and dress shirt — when he talked to ACORN staffers, and he often presented himself as a law school student and an aspiring politician trying to rescue his prostitute girlfriend from her abusive pimp.)

The italicized “from” is Boehlert’s way of implying that O’Keefe never pretended to be a pimp at ACORN. In fact, he knows full well that O’Keefe pretended to be a pimp at ACORN. The fact that he portrayed himself as the good pimp doesn’t mean he wasn’t playing a pimp.

As I document in this thorough post below, O’Keefe repeatedly told ACORN employees that he was setting up a house where Giles and underage girls would turn tricks, and give the proceeds to O’Keefe, who planned to use them for a future Congressional campaign. The tapes have numerous exchanges like this:

O’Keefe: But, one of the things I was one of the things we also wanna do um one of my goals you asked you asked do you know how you wanna do this, I think one of the goals is not only can Eden protect some of these 13, 14, 15 year-old girls

Theresa (ACORN) Yeah.

O’Keefe: coming over from El Salvador. In addition to protecting them and getting their feet on the ground so that they can you know perform the tricks and you know learn the how LA prostitution scene is I was also wanting to um use some of the this is very lucrative and potentially we can use a lot of the money we’re getting from the underaged girls from El Salvador and use some of the money for campaign one day

. . . .

O’Keefe: We’re bringing these girls from overseas.

Hannah (Eden) Well, they’re here.

O’Keefe: But, we are gonna take a part of the profit and I intend to use the profit

Theresa (ACORN): Right.

O’Keefe: From the tricks the girls perform

Theresa (ACORN): Right.

O’Keefe: To fund my political campaign.

Theresa (ACORN): Right.

Boehlert knows O’Keefe posed as a pimp. But he won’t say so. I have offered to give Boehlert $100 (commenters have bumped the offer to $200) simply to state clearly whether O’Keefe pretended to be a pimp at ACORN. He knows that O’Keefe did, but if he says so, he can’t insinuate that he didn’t, by harping on the clothing non-issue.

Boehlert won’t tell you that O’Keefe pretended to be a pimp, but he is willing to further claims by others who deceptively claim O’Keefe did not. Today Boehlert posts a misleading, deceptive, and highly doctored video by Mike Stark which makes that claim:

Stark Lie

As I showed in this post, Boehlert labeled Giles and O’Keefe hoaxsters because they did not correct statements or implications by others that O’Keefe wore the pimp getup in ACORN offices. Yet he is content to post a video on his site that makes a false claim that O’Keefe never played a pimp. By Boehlert’s own standards, that makes him a hoaxster himself.

P.S. ACORN supporters are also claiming vindication because the Brooklyn D.A. yesterday issued a statement refusing to prosecute ACORN. They are especially excited because an anonymous source claimed that the videotapes were edited deceptively. Well, if we can’t trust an anonymous source nowadays, who can we trust?

The fact is that the full audio and transcript of the Brooklyn ACORN video is available and shows that the tape was not deceptively edited. If someone has a case to make otherwise, let them come forward and make it. My guess: the anonymous source (whoever it was) was a Democrat hack who didn’t release their name because they knew their partisanship would be discovered.


Speech, Money and Terrorism

Filed under: Civil Liberties,Constitutional Law,Terrorism — DRJ @ 3:37 pm

[Guest post by DRJ]

Today the Supreme Court considered whether a Patriot Act provision designed to isolate terrorists violates Americans’ rights to freedom of speech and association:

“The law makes it a crime to provide “material support” to a known terrorist organization. It is designed to isolate terrorists by making it more difficult for them to receive assistance, services, and recruits.

But critics say the government has adopted such a broad reading of “material support” that even peace activists working to persuade a terror group to pursue nonviolent methods of political change would themselves be liable for up to 15 years in prison for providing “support” to terrorists.”

For those inclined to argue that speech and money aren’t the same thing, read Leviticus’ provocative post at The Jury and XRLQ’s response.



Obama Grants Interpol Immunity

Filed under: Constitutional Law,International,Obama — DRJ @ 9:10 pm

[Guest post by DRJ]

Just before Christmas, President Barack Obama signed an Executive Order that immunizes Interpol’s acts in America:

“Last Thursday, December 17, 2009, The White House released an Executive Order “Amending Executive Order 12425.” It grants INTERPOL (International Criminal Police Organization) a new level of full diplomatic immunity afforded to foreign embassies and select other “International Organizations” as set forth in the United States International Organizations Immunities Act of 1945.

By removing language from President Reagan’s 1983 Executive Order 12425, this international law enforcement body now operates – now operates – on American soil beyond the reach of our own top law enforcement arm, the FBI, and is immune from Freedom Of Information Act (FOIA) requests.”

I haven’t posted on this before because I’m having a difficult time thinking of all the reasons this is a bad thing. Is this about subjecting the United States to international laws? Exposing American leaders and military to international war crime proceedings? Exempting a police organization on American soil from FOIA and other traditional oversight provisions?

Andy McCarthy has a succinct explanation, and Phineas Fahrquar at PubSecrets makes two points that make sense to me. The first is a continuation of Andy McCarthy’s concerns:

“The author, former federal prosecutor Andy McCarthy, asks some very good questions, among them why we need to elevate a foreign police service above our own legal protections and why does Interpol need an untouchable repository for documents? Essentially this means that someone arrested under an Interpol warrant in the US can be denied the right to see the evidence used to swear out the warrant against him (presumably at an extradition hearing), a discovery process that’s considered a fundamental protection against tyranny under our Anglo-American system.”

Fahrquar describes the second as a quasi-conspiracy theory, but it’s a reasonable one in my view:

“I do find it more than a bit disturbing that a foreign law-enforcement agency would be allowed to operate on American soil and not be subject to the same constitutional restraints as the FBI or DEA. That’s an unacceptable slight to American sovereignty. And, to give my inner-conspiracy theorist full sway, isn’t it convenient that there’s now an archive within the Justice Department that’s protected by diplomatic immunity, so that no documents in it are available to Congress or a US court? What a perfect place to lose embarrassing documents Obama and Attorney General Holder would rather never see the light of day.”



The ACLU at Work for a Better America

Filed under: Constitutional Law,General — Jack Dunphy @ 11:28 am

[Guest post by Jack Dunphy]

Continuing its effort to eradicate any visible trace of religious belief in this country, the ACLU has demanded that a simple cross, erected in 1934 as a memorial to Veterans of World War I, be removed from atop a rock formation in California’s Mojave Desert. The case, Salazar v. Buono, is currently before the U.S. Supreme Court, which will hear arguments early in its next term. Below is a video explaining the memorial’s history and the efforts to preserve it.

–Jack Dunphy


Jerry Brown: Proposition 209, Which Outlaws Affirmative Action, Is Unconstitutional

Filed under: Constitutional Law,General,Race — Patterico @ 10:01 pm

I often read conservatives claiming that Jerry Brown is a surprisingly solid choice as California’s Attorney General. I’m not so sure. He may be OK on some issues, but he has increasingly used his office to advance ridiculous legal postures that carry the whiff of expedience and political correctness. First there was his daft move to have Prop. 8 declared unconstitutional. Now Gov. Moonbeam is claiming that Proposition 209 — the proposition that outlaws affirmative action — is unconstitutional:

Brown’s brief, written by Solicitor General Manuel Medeiros, noted that the U.S. Supreme Court has set strict constitutional standards for judging race-conscious programs: They must be based on a history of discrimination against a group and must be designed to promote a legitimate goal, such as diversity in school enrollment, that cannot be met in other ways.

But Prop. 209 goes further and prohibits programs that the U.S. Constitution allows, without justification, Medeiros said.

So now these programs are constitutionally mandated??

“It closes a door to race- and gender-conscious programs that the 14th Amendment leaves open,” Medeiros said. The amendment requires states to provide equal protection under the law to all citizens.

“Ironically, by effectively disadvantaging racial minorities and women in the political process, without an evident compelling governmental reason for doing so, (Prop. 209) seems to accomplish the very evil it purported to eliminate … racial and gender discrimination,” Medeiros said.

So by refusing to use government to advantage particular racial or gender groups, Proposition 209 disadvantages those groups?

Brown’s office did not expressly ask the court to overturn Prop. 209. But if the justices followed the attorney general’s opinion, they would strike the measure down or narrow it to reflect federal standards, which would eliminate its independent effect.

Same difference.

Clearly, this is all done with Brown’s run for the Governor’s office in mind. Meaning he is twisting the law in liberal directions for political gain.

Now what could be wrong with that?

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