One of the saddest stories in the news today is King & Spalding’s withdrawal, after only a week, from its representation of the U.S. House of Representatives in connection with the Defense of Marriage Act.
In February, Barack Obama’s Department of Justice announced that it would not carry out its constitutional and statutory duty of defending the Defense of Marriage Act in federal court. This itself was disgraceful: DOMA was passed by the House and the Senate and signed into law by President Clinton. No administration should abandon the defense of a properly enacted statute that is, at a bare minimum, arguably constitutional, simply because the political winds have shifted. (DOJ did defend the act in 2009.)
After DOJ stopped defending the act, the House of Representatives retained former Solicitor General Paul Clement, a partner in King & Spalding, to represent it in upholding the constitutionality of DOMA. Predictably, this enraged certain homosexual activists:
Before the firm announced its withdrawal, Human Rights Campaign and Equality Georgia were planning a protest Tuesday morning at King & Spalding’s offices in Atlanta. In addition, a full-page ad denouncing the firm was set to run Tuesday morning in the Atlanta Journal-Constitution, one person familiar with the plan said.
King & Spalding promptly folded. ..
The law firm’s action was unusual, to say the least. No doubt there is precedent for a law firm abandoning a client because it comes under political pressure, but I can’t think of one offhand. Most lawyers think they are made of sterner stuff than that.
Clement, outraged, resigned from King & Spalding and fired off a letter to the firm’s management:
“I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do,” Clement wrote to Hays. “I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it.
“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. If there were problems with the firm’s vetting process, we should fix the vetting process, not drop the representation.”
As Clement noted, defense of DOMA is “extremely unpopular in certain quarters.” But lawyers represent unpopular clients and unpopular causes all the time. Many of America’s most prominent law firms lined up to represent terrorists, including those associated with the September 11 attacks, in various legal proceedings. On the left, it is apparently fine to advocate for mass murderers, but not for the House of Representatives or the traditional definition of marriage.
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Greg Sargent, in the Washington Post, talked to the spokesman of the group responsible, who was gloating over a successful intimidation job.
I just got off the phone with the Human Rights Campaign, the gay advocacy group that’s in the right’s crosshairs. The group’s response, in a nutshell: Deal with it. …
Far from being abashed about this campaign, Fred Sainz, a spokesman for the Human Rights Campaign, shared new details about it. He confirmed to me that his group did indeed contact King and Spalding clients to let them know that the group viewed the firm’s defense of DOMA as unacceptable.
Sainz said his group did not ask any of the firm’s clients to drop the firm in retaliation for taking the case, as is being assumed by conservatives who are alleging an untoward pressure campaign. Rather, he said, his group informed the firm’s clients that taking the case was out of sync with King and Spalding’s commitment to diversity, which it proudly advertises on its Web site.
“King and Spalding’s clients are listed on its web site, so we did what you would expect us to do,†Sainz told me. “We are an advocacy firm that is dedicated to improving the lives of gays and lesbians. It is incumbent on us to launch a full-throated educational campaign so firms know that these kinds of engagements will reflect on the way your clients and law school recruits think of your firm.â€
“We did all of this, and we’re proud to have done it,†added Sainz.
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Jennifer Rubin identifies the key hypocrisy.
It is worth recalling the passionate words of an all-star lineup from the Brookings Institution when some conservatives objected to the Justice Department employing lawyers who represented detainees:
Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. Whether one believes in trial by military commission or in federal court, detainees will have access to counsel. Guantanamo detainees likewise have access to lawyers for purposes of habeas review, and the reach of that habeas corpus could eventually extend beyond this population. Good defense counsel is thus key to ensuring that military commissions, federal juries, and federal judges have access to the best arguments and most rigorous factual presentations before making crucial decisions that affect both national security and paramount liberty interests.
To delegitimize the role detainee counsel play is to demand adjudications and policymaking stripped of a full record. Whatever systems America develops to handle difficult detention questions will rely, at least some of the time, on an aggressive defense bar; those who take up that function do a service to the system.
But, you see, the rules are entirely different when the principle at issue is a pet position of the left.
HuffPo quotes a humorous local events item from the Missoulian.
The Montana Supreme Court has upheld a Workers’ Compensation Court ruling that about $65,000 in medical bills incurred by a man who was mauled while feeding the bears at a tourist attraction should be covered by workers’ compensation, despite the fact the man had smoked marijuana on the day of the attack.
The court filed its opinion Tuesday, the Daily Inter Lake reported.
Brock Hopkins filed a claim with the Uninsured Employers’ Fund in December 2007, saying he suffered injuries to his legs and buttocks when he was mauled by a bear at Great Bear Adventures near Glacier National Park on Nov. 2, 2007. Hopkins was treated for his injuries at a Kalispell hospital.
The UEF denied Hopkins’ claim because Hopkins had smoked marijuana before entering a bear enclosure. The fund also argued that Hopkins was acting outside the scope of his duties.
Park owner Russell Kilpatrick, who did not have workers’ compensation coverage, argued that Hopkins was a volunteer who Kilpatrick occasionally gave cash to “out of his heart.” Hopkins fed the bears that day after Kilpatrick told him not to because he was tapering their food as they prepared for hibernation, Kilpatrick said.
The Workers’ Compensation Court ruled last June that Hopkins was an employee and noted that while his “use of marijuana to kick off a day of working around grizzly bears was ill-advised to say the least and mind-bogglingly stupid to say the most,” there was no evidence presented regarding Hopkins’ level of impairment.
The WCC found that grizzlies are “equal opportunity maulers” without regard to marijuana consumption. …
[T]he agency [paid] an estimated $35,000 in discounted medical bills on behalf of Hopkins. Kilpatrick paid a small penalty for failing to carry workers’ compensation insurance, Nevin said.
A phone listing for Kilpatrick in Coram has been disconnected and there is no phone listing for Great Bear Adventures.
Both outlets overlook the more serious moral here. The Montana’s Supreme Court’s witty and charitable decision and the consequent “small penalty” seem to have closed the Great Bear Adventures Park operation and put its owner out of business. Ho, ho, ho.
Ouch! Not only are a majority of states in court challenging the constitutionality of Obamacare, federal judges keep ruling in their favor.
The Washington Times cherishes Senior United States District Judge Vinson’s use of Barack Obama’s own words in a footnote.
In ruling against President Obama‘s health care law, federal Judge Roger Vinson used Mr. Obama‘s own position from the 2008 campaign against him, when the then-Illinois senator argued there were other ways to achieve reform short of requiring every American to purchase insurance.
“I note that in 2008, then-Senator Obama supported a health care reform proposal that did not include an individual mandate because he was at that time strongly opposed to the idea, stating that, ‘If a mandate was the solution, we can try that to solve homelessness by mandating everybody to buy a house,’†Judge Vinson wrote in a footnote toward the end [page 76] of his 78-page ruling Monday.
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The Wall Street Journal gave Judge Vinson’s ruling a rave review, describing it as “introduc[ing] ObamaCare to Madison and Marshall.” Everyone is collecting great passages from Judge Vinson’s opinion.
‘If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.
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Don Surber found another of the best apothegms in the decision.
“It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place.â€
Some commentators thought the Supreme Court’s failure to grant cert in Alderman v. US, a 9th Circuit case involving possession of body armor by a felon, testing the reach of the Commerce Clause, may have evidenced an inclination on the part of the Court to decline to consider the same kind of issue as it applies to a federal mandate to purchase health insurance as part of Obamacare.
Well, now that half of all the states in the Union are in court asking that the democrat Health Care Reform Bill be struck down as unconstitutional, it seems to me increasingly less likely that the Supreme Court will feel able to shirk making a historic decision.
[T]he newly elected governors of Ohio, Oklahoma, Maine, and Wisconsin have all decided to sue the Obama administration in hopes of stopping Obamacare. Specifically, Gov. Mary Fallin of Oklahoma has announced that the Sooner State will pursue its own case against the law, while Govs. John Kasich (R) and Scott Walker (R) (of Ohio and Wisconsin respectively) will add their states to Florida’s multi-state suit. And yesterday, newly sworn-in state Attorney General William Schneider announced Maine would also join the the Florida litigation. That brings the number of states on the Florida suit to 23 and the total number of states suing to stop Obamacare (which includes Virginia and Oklahoma) to 25.
We knew that already. Federal judge Henry Hudson ruling in the lawsuit brought by Virginia Attorney General Ken Cuccinelli agrees.
There is nothing in the Constitution granting Congress the power to make you buy health insurance. The case will obviously be appealed to the Supreme Court, and Justice Kennedy will almost certainly be the 5th vote killing Obamacare dead as Fogarty’s goat.
The General Assembly of the Commonwealth of Pennsylvania has passed a bill rejecting the “obligation to retreat” theory and vigorously affirming the right of self defense.
“(1) It is proper for law-abiding people to protect themselves, their families and others from intruders and attackers without fear of prosecution or civil action for acting in defense of themselves and others.
“(2) The castle doctrine is a common-law doctrine of ancient origins which declares that a home is a person’s castle.
“(3) … The Constitution of Pennsylvania guarantees that the ‘right of the citizens to bear arms in defense of themselves and the state shall not be questioned.’
“(4) Persons residing in or visiting this commonwealth have a right to expect to remain unmolested within their homes or vehicles.
“(5) No person should be required to surrender his or her personal safety to a criminal, nor should a person be required to needlessly retreat in the face of intrusion or attack outside the person’s home or vehicle.”
The question is whether democrat, pro-Gun Control Governor Edward Rendell will sign the bill, or defy strong public support by vetoing it.
If the bill passes into law, watch crime rates plummet in Pennsylvania.
The answer is: not well. The Embassy Bomber who killed 224 people in the simultaneous truck bomb attacks on US embassies in Kenya and Tanzania in 1998 was acquitted in a Manhattan Federal District Court of all but one count of a 285 count indictment.
The acquittal of Guantanamo detainee Ahmed Khalfan Ghailani yesterday on all but one of 285 counts in connection with the 1998 al-Qaeda bombings of the U.S. embassies in Kenya and Tanzania has once again demonstrated that the leftist lawyers’ experiment in applying civilian trial rules to terrorists is gravely misguided and downright dangerous. The soon-to-be House chairman on homeland security, Peter King, issued a statement blasting the trial outcome and the nonchalant response from the Justice Department:
“I am disgusted at the total miscarriage of justice today in Manhattan’s federal civilian court. In a case where Ahmed Khalfan Ghailani was facing 285 criminal counts, including hundreds of murder charges, and where Attorney General Eric Holder assured us that ‘failure is not an option,’ the jury found him guilty on only one count and acquitted him of all other counts including every murder charge. This tragic verdict demonstrates the absolute insanity of the Obama Administration’s decision to try al-Qaeda terrorists in civilian courtsâ€
Congress can start by ending federal-court jurisdiction over detainees. Then they should demand Eric Holder’s resignation — preferably before his serially wrong advice causes any more damage to our national security.
[P]rosecutors built a circumstantial case to try to establish that Mr. Ghailani had played a key logistical role in the preparations for the Tanzania attack.
They said the evidence showed that he helped to buy the Nissan Atlas truck that was used to carry the bomb, and gas tanks that were placed inside the truck to intensify the blast. He also stored an explosive detonator in an armoire he used, and his cellphone became the “operational phone†for the plotters in the weeks leading up to the attacks, prosecutors contended.
The attacks, orchestrated by Al Qaeda, killed 224 people, including 12 Americans, and wounded thousands of others.
But the case was ill-suited to civilian courts, and a key witness was excluded from testifying:
But because of the unusual circumstances of Mr. Ghailani’s case — after he was captured in Pakistan in 2004, he was held for nearly five years in a so-called black site run by the Central Intelligence Agency and at Guantánamo Bay, Cuba — the prosecution faced significant legal hurdles getting his case to trial. And last month, the government lost a key ruling on the eve of trial that may have seriously damaged their chances of winning convictions.
In the ruling, the judge, Lewis A. Kaplan of Federal District Court, barred them from using an important witness against Mr. Ghailani because the government had learned about the man through Mr. Ghailani’s interrogation while he was in C.I.A. custody, where his lawyers say he was tortured.
The witness, Hussein Abebe, would have testified that he had sold Mr. Ghailani the large quantities of TNT used to blow up the embassy in Dar es Salaam, prosecutors told the judge, calling him “a giant witness for the government.â€
The judge called it correctly, and explicitly warned the government of “the potential damage of excluding the witness when he said in his ruling that Mr. Ghailani’s status of ‘enemy combatant’ probably would permit his detention as something akin ‘to a prisoner of war until hostilities between the United States and Al Qaeda and the Taliban end, even if he were found not guilty.’â€
In other words, what in the world was the bomber doing in an Article III courtroom? He was, quite bluntly, part of a stunt by the Obama administration, which had vilified Bush administration lawyers for failing to accord terrorists the full panoply of constitutional rights available to American citizens who are arrested by police officers and held pursuant to constitutional requirements.
Once again, the Obama team has revealed itself to be entirely incompetent and has proved, maybe even to themselves, the obvious: the Bush administration had it right.
Michigan federal district Judge George Caram Steeh III upheld the Obamacare individual health insurance purchase mandate in a case challenging the law brought by the conservative Christian Thomas More Law Center.
Steeh’s decision referred to a number of intellectually questionable precedents expanding the Commerce Clause outrageously through the use of casuistical reasoning.
As Judge Steeh not inaccurately observes, a body of precedent law exists sustaining congressional edicts based on the constitutional power to regulate interstate commerce effectively reaching all sorts of persons and activities not in fact engaged in Interstate Commerce.
Post New Deal jurisprudential understanding of the Commerce Clause limitation amounted to the Constitution forbidding congressional interference only in cases of individual persons or activities that could not be in any way, shape or form theoretically causally connected (even negatively) to the national economy or to rational goals of liberal policy by clever and well-educated attorneys.
Such a standard is, of course, completely nugatory and impotent to stop anything at all, and Judge Steeh abashedly alludes to the relatively recent, and distinctly innovative for their era, cases of Morrison and Lopez to establish the contrary. I smiled ironically upon reading that.
The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive. The government makes the apropos analogy of paying by credit card rather than by check. How participants in the health care services market pay for such services has a documented impact on interstate commerce. Obviously, this market reality forms the rational basis for Congressional action designed to reduce the number of uninsureds.
The Supreme Court has consistently rejected claims that individuals who choose not to engage in commerce thereby place themselves beyond the reach of the Commerce Clause. See, e.g., Raich, 545 U.S. at 30 (rejecting the argument that plaintiffs’ homegrown marijuana was “entirely separated from the marketâ€); Wickard, 317 U.S. at 127, 128 (home-grown wheat “competes with wheat in commerce†and “may forestall resort to the marketâ€); Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) (Commerce Clause allows Congress to regulate decisions not to engage in transactions with persons with whom plaintiff did not wish to deal). Similarly, plaintiffs in this case are participants in the health care services market. They are not outside the market. While plaintiffs describe the Commerce Clause power as reaching economic activity, the government’s characterization of the Commerce Clause reaching economic decisions is more accurate.
Judge Steeh’s decision is a competent and professionally produced example of carefully reasoned liberal statism, and very much represents the Keep-the-Constitution-in-Exile reasoning that will be used to defend Obamacare when the various state lawsuits eventually reach the Supreme Court.
The New Federalism and Rational Basis casuistry will meet again in the nation’s highest court before terribly long.
Ilya Somin, at Volokh, pessimistically believes the mandate is more likely to be upheld than not.
I think we have the better reasoning and a narrow conservative majority on the Court, backed by a national negative consensus on Obamacare. I’m not so sure we are going to lose.
Louis Case, at American Thinker, points out that the complicated Machiavellian shenanigans needed to get Obamacare through Congress inevitably include the potential legal seed of the destruction of the entire bill.
Virginia’s lawsuit argues that the federal government has no constitutional authority to require individuals to purchase health insurance policies.
Virginia is asserting that certain portions (that is, the personal mandate) of ObamaCare are unconstitutional. If Virginia prevails, it leaves the question of what happens to the rest of the ObamaCare statute. This is where the concept of severance comes in. Normally, all comprehensive laws contain a boilerplate severance clause: it says that if any portion of the law is found to be unconstitutional, that portion is severed from the rest of the law — that is, the rest of the law stands.
But ObamaCare contains no severance clause. Virginia is asserting that if it prevails on its substantive claims, the whole law is unconstitutional. (If Virginia does not prevail, any one of the twenty-plus legal challenges have the same severance argument available.)
If a severance clause is normal boilerplate, why does not ObamaCare contain one? This is where Scott Brown’s election enters. Recall that the House passed its version of ObamaCare. On Christmas Eve, after much horsetrading and bribing, the Senate passed its version. The Senate version was not drafted to be in its final form; it was drafted to get 60 votes. Normally, these bills would be reconciled in a conference committee, and the final version would have to be voted on again with 60 votes in the Senate. However, before it could be sent to conference and reconciled, Scott Brown won in Massachusetts — a reconciled bill could no longer get 60 votes! That is why the House had to vote up or down on the Senate bill, which was basically a draft without the normal boilerplate inserted.
As Virginia argued in its Memorandum (Pages 24 to 28), the presence of a severance clause raises a presumption that Congress did not intend the whole statute to depend on the constitutionality of any particular clause. But with no severance clause, they are not entitled to that presumption. A court cannot sever the offending clause on its own if the statute would not function as Congress intended.
After 30 years, David Baird, prosecuting attorney of Nodoway County, Missouri, is retiring after being defeated 1,356 votes to 1,381 votes, a margin of 25 ballots, in the democrat party primary.
The famous town bully shooting in Skidmore which took place within months of Mr. Baird first assuming office remains unsolved to this day.
Ken Rex McElroy, 47, was a big, burly man with bushy sideburns, cold eyes and an ever-present gun. He was the Skidmore bully. On July 10, 1981, on a hot summer morning in a fed-up town, he was shot to death in plain view of 30 to 40 people who gathered around his Chevrolet pickup outside a beer joint on Main Street.
Killed instantly by rifle bullets, his foot pushed the accelerator to the floor. The engine roared. Like something in literature, no one shut it off. They just walked away.
Except for McElroy’s wife, nobody told who did it. Investigators and grand juries heard the same thing time and time again: “I heard shooting and got down. Didn’t see a thing.â€
Apparently, McElroy was mean enough to unite a town of plain, good folks to do murder. He had terrorized Skidmore for years. He allegedly stole livestock, burned houses, chased women, preyed upon young girls — and threatened a bullet or buckshot for anyone who got in his way.
Xavier Alvarez, decked out in a US Army uniform with medals he never earned
In November of 2006, Xavier Alvarez was elected to represent the city of Pomona on the board of the Three Valleys Municipal Water District as a war hero who had been awarded the Medal of Honor.
Alvarez claimed to be a retired 25-year Marine Corps veteran, who was many times wounded and had received the nation’s highest award for military valor for serving as a helicopter pilot and rescuing US POWs from behind enemy lines during the War in Vietnam. In fact, Alvarez was never in the military, and was 17 years old when the Vietnam War ended in 1975. (Inland Valley Daily Bulletin link)
In 1977, Alvarez was exposed and was prosecuted and pled guilty under the Stolen Valor Act of 2005, which made the unauthorized claim, display, manufacture, or sale of US military decorations or awards a federal misdemeanor. He was sentenced to more than 400 hours of community service at a veterans hospital and fined $5,000, but then appealed claiming the 2005 law violated his right to free speech (!).
Preposterous, wouldn’t you say?
But not too preposterous to persuade a three-judge panel of the 9th Circus. Judge Milan D. Smith opined, joined by Judge Thomas Nelson, as Josh Gerstein reports, that there is a free speech right to lie.
We have no doubt that society would be better off if Alvarez would stop spreading worthless, ridiculous, and offensive untruths. But, given our historical skepticism of permitting the government to police the line between truth and falsity, and between valuable speech and drivel, we presumptively protect all speech, including false statements, in order that clearly protected speech may flower in the shelter of the First Amendment.
While asserting that they were not endorsing “an unbridled right to lie,” Smith and Nelson said regulations of false speech that have been upheld by the courts were limited to narrow categories where a direct and significant harm was caused. But, they said, the harm caused by people making false statements about military decorations was not evident.
Both of these judges were Bush appointees, leading one to conclude that there must be something in the water out there.
An attractive 26 year identified only as Luisa sunbathing topless on a beach at Anzio, Italy was approached by a woman who demanded that she stop applying sun block to her bosom because it “troubled her sons aged 14 and 12.†The sunbather declined to comply, and the irate mother summoned the carabinieri.
A complaint was filed, and the incident provoked an international debate.
The young lady’s attorney, Gianluca Arrighi, delivered the following defense statement:
Let’s be clear. My client is tall, brunette and has an ample breast and is therefore going to naturally be sensuous when she applies cream to her chest.
An Anzio police spokesmen conceded to the press: “From what I heard she was very attractive.”
