Category Archives: Separation Of Powers

Ron Paul CNN National Security Debate Highlights and Observations

For those of us who value our liberties, there were a plethora of things said in last night’s debate from candidates not named Ron Paul to be very distressed about. For starters, there was the debate about the USA PATRIOT Act and whether it should be renewed, strengthened, or abolished. Unsurprisingly, Paul explained how civil liberties have eroded due to the act and lamented how willing the other candidates were to surrender even more liberty in the name of security. Paul held up Timothy McVeigh as an example of a terrorist who was tried in the traditional criminal justice system and ultimately convicted. In response, Newt Gingrich said “Timothy McVeigh succeeded.” (How he would have stopped the OKC bombings is anyone’s guess but I can’t imagine it would have been inside the framework of the Bill of Rights.) Paul’s response was spot on.

Then Rick Santorum advocated the notion of racial, religious, and ethnic profiling. Paul once again brought up Timothy McVeigh as an example of someone who would not have fit Santorum’s profile and pointed out some of the “careless use of words” being used by the other candidates (i.e. “we are at war,” naming individuals “terrorists” without due process etc.) is further compromising our liberty.

Other topics included Iran’s nuclear ambitions, the foregone conclusion that the U.S. should intervene anywhere and everywhere there is a regime our government doesn’t like, the assumption that not a single penny should be cut from the “national defense” budget, and the drug war violence in Mexico (I really wish someone would have brought up Fast and Furious).

Overall, the debate was very unsettling but Ron Paul once again was the voice of reason and responded well to his challengers.

Quote of the Day: Americans Cheer the Assassination of the Fifth Amendment Edition

Glenn Greenwald writes in response to the overall positive reaction of the drone assassination of American born Anwar al-Awlaki:

What’s most amazing is that its citizens will not merely refrain from objecting, but will stand and cheer the U.S. Government’s new power to assassinate their fellow citizens, far from any battlefield, literally without a shred of due process from the U.S. Government. Many will celebrate the strong, decisive, Tough President’s ability to eradicate the life of Anwar al-Awlaki — including many who just so righteously condemned those Republican audience members as so terribly barbaric and crass for cheering Governor Perry’s execution of scores of serial murderers and rapists — criminals who were at least given a trial and appeals and the other trappings of due process before being killed.

From an authoritarian perspective, that’s the genius of America’s political culture. It not only finds way to obliterate the most basic individual liberties designed to safeguard citizens from consummate abuses of power (such as extinguishing the lives of citizens without due process). It actually gets its citizens to stand up and clap and even celebrate the destruction of those safeguards.

Sadly, among those that cheered this assassination of an American citizen are none other than pro war on terror libertarians Neal Boortz and Larry Elder. When Boortz heard that Ron Paul and Gary Johnson condemned the assassination, he called that notion “a bunch of horse squeeze.” After playing Ron Paul’s very well reasoned response explaining his objections, Larry Elder said that Paul “doesn’t get it” and “we are at war.”

I’m sorry gentlemen, I wasn’t aware that there was a “war on terror” exception to due process. But hey you guys are both attorneys who claim to hold the Constitution in high regard so what the hell do I know?

If there is anything our government does well its convicting people, putting them in prison, and/or executing them. If the government really had the goods on this guy, there’s virtually no chance he would have been found not guilty.

President Obama not only ordered the assassination of Anwar al-Awlaki but the Fifth Amendment as well.

Related: Obama: Judge, Jury, and Executioner in Chief

Don’t Bother with the Fine Print, Just Pass the Bill

The title of this post ought to be a red flag no matter who the president is or what your political persuasion. President Obama is demanding that congress pass his “American Jobs Act” in front of supportive crowds of people who I am sure have taken the time to read the whole bill and understand its contents. This bill should be passed “immediately” and with “No games, no politics, no delays,” so sayeth our dear leader.

I can’t help but think of another piece of legislation that had to be passed “immediately” and “without delay” nearly ten years ago in the aftermath of the terrorist attacks of 9/11. The piece of legislation I am referring to of course was the USA PATRIOT Act. I mean what’s not to like? The bill has the words “USA” and “PATRIOT” in them and would make our country safer because the law would give law enforcement the tools needed to fight terrorism.

One of the tools the PATRIOT Act (Sec 213), a.k.a. “sneak and peek” provided law enforcement the ability to delay notification of search warrants of someone suspected of a “criminal offense.” Between 2006 and 2009, this provision must have been used many hundreds or thousands of times against suspected terrorists, right? Try 15 times. This same provision was used 122 in fraud cases and 1,618 times in drug related cases.

Is this what supporters of the PATRIOT Act had in mind when most of them didn’t even read the bill?

So we’ve been down this road before – pass a bill with a name that no one would be comfortable voting against. To vote against the PATRIOT Act might suggest to voters that you are somehow unpatriotic as voting against Obama’s jobs bill will undoubtedly be used in campaign ads to say opponents are “obstructionists” or are not willing to “put politics aside” in order to “put Americans back to work.” And don’t even get me started on all the bad laws that have been passed using names of dead children.

But who is really playing political games here? I think the answer quite clearly is President Obama in this case. He knows damn well that if the economy is still in the shape it is come Election Day he has very little chance of winning a second term unless he can find some way to successfully pin the blame his political opponents. He knows that raising taxes is a nonstarter for Republicans – particularly Tea Party Republicans. There may be some good things in his bill that should be passed (the Devil is in the details of course) that Republicans can support but if it’s all or nothing, the answer will be nothing.

President Obama is counting on the nothing so he can say it’s the House Republicans’ fault that the economy hasn’t recovered. This class warfare rhetoric plays very well on college campuses and union rallies. The worst thing that could happen from Obama’s perspective is if the Republicans call his bluff, pass the bill, and the bill fails to provide the results he claims his bill will achieve (though as a political calculation, it may be a wash as Tea Party voters in-particular would not be pleased either).

The worst thing the congress could do for this economy would be to pass this bill as hastily as the PATRIOT Act was a decade ago. The best thing congress could do is for its members to actually read the bill and have a rational discussion* and debate it line by line. Whether Obama’s intentions are for good or ill, there will be seen and unforeseen consequences if the bill does pass. A top down approach (as I think this bill is) is rarely if ever a good recipe for an economy. No one is smart enough to plan the economy, not even the brain trust of the Obama administration (this should be obvious by now).

Just because the president says his bill will create jobs doesn’t make it so.
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A Brief Constitutional Lesson for Congresscritters… Particularly those from Kentucky…

United States Constitution
Article 1, Section 7

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

The issuance of debt is a revenue raising measure. The “debt ceiling” is, in fact, legislation initiated in the House of Representatives, which authorizes the executive branch to issue debt through the treasury (and by extension the federal reserve), up to a specific limit.

This “debt ceiling” and authorization of debt issuance; allows the executive branch to raise revenue in a constitutionally legitimate way; because the revenue is raised under the auspices of specific authorization by the house or representatives.

Neither the Senate, nor the House, acting separately or together; has the authority or ability to delegate this exclusive power of the house, to any other entity, including the president. In fact, it would be a clear violation of the principle of separation of powers to do so.

That is all.

I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

Montana Firearms Freedom Act: Tilting At Windmills

While I laud any state trying to expand the freedom of its residents while simultaneously thumbing it’s nose at Washington, I can’t see this ending well:

On October 1, 2009, Montana passed the Montana Firearms Freedom Act, the purpose of which was to regulate guns manufactured and kept within Montana state lines under a less restrictive regulatory regime than federal law provides. That same day, to ensure that Montanans could enjoy the benefits of this less restrictive state regulation, the Montana Shooting Sports Association filed a declaratory judgment claim in federal court.

The lawsuit’s importance is not limited to Montana, as seven other states have passed laws similar to the MFFA and 20 states have introduced such legislation. The goal here is to reinforce state regulatory authority over commerce that is by definition intrastate, to take back some of the ground occupied by modern Commerce Clause jurisprudence.

The district court granted the government’s motion to dismiss, however, and MSSA appealed to the Ninth Circuit. Now on appeal, Cato has joined the Goldwater Institute to file an amicus brief supporting the MSSA and arguing that federal power does not preempt Montana’s ability to exercise its sovereign police powers to facilitate the exercise of individual rights protected by the Second and Ninth Amendments. More specifically, for federal law to trump the MFFA, the government must claim that the Commerce and Necessary and Proper Clauses give it the power to regulate wholly intrastate manufacture, sale, and possession of guns, which MSSA argues is a state-specific market distinct from any related national one.

The general question here is whether modern Commerce Clause jurisprudence should be upended for this case. I believe it should, but I believe it won’t. The manufacture/sale/possession of firearms, while declared to be purely intrastate matters, would seem to “substantially affect” interstate commerce in the same way as the Court found in Wickard & Raich. On the question of whether the activity affects interstate commerce, I don’t think there can be any debate should current Commerce Clause jurisprudence hold. Under such jurisprudence, the Feds can reasonably claim that their more stringent requirements for firearms is Necessary to effectively regulate firearms in an interstate manner.

The actual brief (linked above) submitted by Goldwater & Cato draws more narrow inferences than the quoted text above, however. They recognize the current precedent of Wickard & Raich, but push a state sovereignty angle which seems much more substantial. The argument seems to be that in areas traditionally regulated at the state level, rather than the federal level, and where the state action is protecting individual liberty rather than restricting it (i.e. no 14th amendment privileges & immunities issues here), the level of scrutiny required by the Feds to override State law should be significantly higher. However, I suspect that such efforts will still either fall short, or require Supreme Court gymnastics to carve out a VERY narrow exception here (i.e. emanations & penumbra gymnastics).

It’s telling that one of the cases used as justification here is a case [Massachusetts v. Sebelius] where Massachusetts argued against the DOMA, on the grounds that Massachusetts more libertarian law upholding same-sex unions was infringed upon by DOMA. Effectively DOMA made it impossible for certain federally-funded programs which would traditionally go to “married” couples (or survivors thereof) could not be extended to same-sex couples. Because the regulation of marriage was traditionally within the purview of the States, not the Feds, and because DOMA violated the State’s liberty-protecting equal protection clause within the Massachusetts Constitution, for the Congress to intervene here was shown to be a violation of Massachusetts sovereignty.

However, I don’t think the Massachusetts case will be applicable here. While it is traditionally the purview of the States to regulate marriage, I don’t think it can be shown here that Massachusetts recognition of same-sex marriage substantially affects interstate commerce. The portion of DOMA that would have protected states from being forced to recognize same-sex marriages from other states was also not at issue. While it might be within the general police powers of the States to regulate some aspects of firearms manufacture/sale/ownership, I believe the Court would find the Commerce Clause precedent more binding than a finding of state sovereignty.

Another aspect of the state sovereignty argument appears in section I-A of the brief [p7-11]. Several points are raised:

  • That the Federal government cannot force a State legislature to legislate as directed by the Feds. In this case, I don’t believe the point applies, as the Feds are not demanding the States implement this regulation for them, but rather declaring such regulation to be a Federal matter to be decided by Congress rather than the States.
  • That the Federal government cannot commandeer State resources for the execution of federal regulation. Again, they are not forcing State police to enforce a more strict version of firearms regulation, and various drug decriminalization (and State medical marijuana initiatives) have created a situation where, while a State may [unconstitutionally] declare certain activities legal that the Federal government deems illegal, the States are within their rights to limit the use of State resources for investigation and prosecution of Federal crimes that they deem unwieldy. California can simultaneously hold the position that while medical marijuana is Federally illegal, the State does not consider it criminal, and thus the Feds themselves must enforce it if they so choose.
  • That the Federal government may not regulate/criminalize wholly intrastate activities with no economic impact. I think Commerce Clause jurisprudence would suggest that manufacture/sale/possession of weapons cannot be shown to be wholly intrastate, and it certainly includes economic impact.
  • Finally, that the Federal government may not subject State government employees to the dictates or working regulations of the Federal government — I think this one is so far removed from the case at hand to not warrant discussion.

To argue that this is a matter of state sovereignty is to argue that regulations of firearms has been a long-standing matter of the states themselves, and that for the Federal government to step in and demand more stringent regulation under Commerce Clause grounds requires such heightened scrutiny that cannot be supported here. However, Federal firearms laws have been in force since 1934, and while this is not proof that the regulation of firearm manufacture/sale/ownership should be a Federal matter, it certainly cuts some strength from the argument that this is purely a matter of state sovereignty.

It seems to me that this lawsuit is a bit of a hail mary. For it to succeed, we would need to see a sea-change in Commerce Clause jurisprudence (almost impossibly unlikely), or for the Brady Bill and/or National Firearms Act to be struck down as Unconstitutional (because both would infringe on state sovereignty). A greater likelihood, based on current conservative makeup of the court, would be a VERY narrowly worded decision involving some legal gymnastics. However, given the deference to Federal power I’ve seen from Roberts & Alito, and given that they would need such a narrow crafting to ensure that they wouldn’t open up whole hosts of other State sovereignty challenges to Federal law, I don’t see much likelihood there. Fundamentally the plaintiffs are pushing for a general large change in Federal/State interaction, one which I doubt the Supreme Court is ready to uphold.

Of course, that’s all assuming it ever makes it to the Supreme Court, itself an unlikely prospect.

While I have great sympathy for the plaintiffs here, I can’t say I’d be laying strong odds on their success.
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