May 31, 2012

NYC Ban on Large Sodas

In an effort to combat obesity, Mayor Bloomberg has proposed a ban that would prohibit the sale of any cup or bottle of sweetened drink larger than 16 fluid ounces - affecting virtually the entire menu of popular sugary drinks found in delis, fast-food franchises and even sports arenas. The measure wouldn't apply to diet sodas and not extend to beverages sold in grocery or convenience stores. Michael Grynbaum, of The New York Times, recalls other actions taken by the mayor:
“The Bloomberg administration had made previous, unsuccessful efforts to make soda consumption less appealing. The mayor supported a state tax on sodas, but the measure died in Albany, and he tried to restrict the use of food stamps to buy sodas, but the idea was rejected by federal regulators.”

Aborting Children Because of Gender?

The Prenatal Non-Discrimination Act (PRENDA) will come to a vote today in the House of Representatives. The Hill relates, PRENDA would:
“[I]mpose fines or imprisonment on doctors who perform abortions they know are motivated in part by the fetus’s gender. The bill would also require medical professionals to tell law enforcement if they suspect an abortion has been performed for that reason. ”
Republicans wrote this bill to end sex-selective abortion and save many of the unborn that are aborted simply because of their gender. Because the bill was brought to the floor under suspension of the rules, it will require a two-thirds majority to pass in the House of Representatives.

Montana Resists the Supreme Court

“Montana uses an interesting argument to justify defiance of a Supreme Court decision: Because the state is particularly prone to political corruption, it should be trusted to constrict First Amendment protections of political speech.”
The Washington Post reports that three Montana corporations sued to bring the state into compliance with Citizens United by overturning a 100-year old state law that forbids all corporate political spending. The Senate Minority Leader Mitch McConnell concluded, “the Montana ruling is ‘disdainful’ and disobedient regarding the Citizens United decision.”

May 30, 2012

Justice Stevens Awarded ‘Medal of Freedom’

President Obama presented Justice John Paul Stevens with the Medal of Freedom yesterday. The Presidential Medal of Freedom is an award given by the president and is the highest civilian award in the United States. President Obama commented at the ceremony:
“From the Navy to the bench, John Paul Stevens has devoted himself to service to our nation. After earning a Bronze Star in World War II, Stevens returned home to pursue a career in law. As an attorney, he became a leading practitioner of anti-trust law. And as a Supreme Court Justice, he dedicated his long and distinguished tenure to applying our Constitution with fidelity and independence. His integrity, humility, and steadfast commitment to the rule of law have fortified the noble vision of our nation’s founders.”
Elena Kagan replaced Justice Stevens, the third longest serving Justice of the Supreme Court, in 2010.

Bank of America Whistleblower Cashes Out

“A former home appraiser will receive $14.5 million as part of a whistleblower lawsuit that accused subprime lender Countrywide Financial of inflating appraisals on government-insured loans, his attorneys said Tuesday. 
"Kyle Lagow's lawsuit sparked an investigation that culminated in a $1 billion settlement announced in February between Bank of America Corp and the U.S. Justice Department over allegations of mortgage fraud at Countrywide, his attorneys said in a news release. Bank of America bought Countrywide in 2008.”
Reuters also reported that Lagow's lawsuit was one of five whistle blower complaints that were put together in a $25 billion national mortgage settlement that state and federal officials reached with Bank of America and four other lenders this year. One of the attorneys on the case concluded, “These guys are inspirational. They both did the right thing. They should inspire other people to come forward.”

Romney Secures GOP Nomination

Mitt Romney’s long journey to secure the Republican presidential nomination is officially complete. According to the Associated Press tally, Romney is on pace to take enough of Texas’s 155 delegates to cross the 1,144 delegate threshold. The Hill, relays Romney’s reaction:
"I am honored that Americans across the country have given their support to my candidacy and I am humbled to have won enough delegates to become the Republican Party's 2012 presidential nominee … Our party has come together with the goal of putting the failures of the last three and a half years behind us."
The race against President Obama is very close; the latest Real Clear Politics average of polls had Obama up only by two points.

May 25, 2012

Judge Sides with Motorist for Flashing Headlights

A judge in Sanford, FL ruled Tuesday that a man was lawfully exercising his First Amendment rights when he flashed his headlights to warn neighbors that a deputy had set up a speed trap nearby. Ryan Kinter has also filed a similar but broader lawsuit in Tallahassee against the Florida Highway Patrol. From the Orlando Sentinel:
“Each suit asked that police agencies be ordered to halt writing those tickets. The highway patrol stopped voluntarily, awaiting the outcome of the suit. So have the Seminole County Sheriff's Office and other agencies.
“In an interview in August, shortly after filing suit, Kintner said, ‘I felt an injustice was being done. … I have nothing against officers … keeping speeding down, but when you cross a line and get into free speech, I feel it's gone too far.’ " 

California Judge Quashes DOMA

Northern California District Judge Wilken ruled that "Congress violated constitutional standards on legalized bigotry when it denied federal benefits from same-sex spouses and excluded domestic partners of state employees from long-term health coverage." The decision by Judge Wilken was the second this year in the San Francisco Bay Area to strike down the Defense of Marriage Act. Bob Egelko of the SF Gate relates:
“She [Judge Wilken] cited assertions during congressional debate that same-sex domestic partnership was ‘an attack on the family’ and would ‘undermine the traditional moral values that are the bedrock of this nation.’ "

DOJ Prosecutors Cited for Misconduct in Stevens Case

An internal investigation of the Department of Justice's prosecution of former U.S. Senator Ted Stevens concluded that two prosecutors committed reckless professional misconduct and should be disciplined through forced time off without pay. DOJ officials advised Joseph Bottini be suspended without pay for 40 days and James Goeke be suspended for 15 days without pay. The Blog of LegalTimes reports:
“The collapse of the Stevens case in April 2009 was a major blow to the Justice Department. Stevens, one of the longest serving U.S. Senators, had been charged with concealing information on financial disclosure reports. 
“Attorney General Eric Holder Jr. asked U.S. District Judge Emmett Sullivan to throw out the Stevens case in April 2009 after a review of the case revealed prosecutors did not follow rules in disclosing information to Stevens’s lawyers.”
Stevens narrowly lost his 2008 reelection bid because of his conviction on the later dismissed charges. He died in a plane crash in August 2010.

May 24, 2012

Should Justice Ginsburg Retire?

For more than a year, liberals have been calling for the nearly 80 year old Justice Ginsburg, a two-time cancer survivor, to retire during Obama’s term to prevent the possibility of a Republican president picking her predecessor. Chris Geidner of The Daily Beast explores the issue:
"Mitt Romney is currently polling close to or above President Obama in several key battleground states. If he were to unseat Obama this fall, and Ginsburg ... doesn’t feel she can continue through Romney’s first (or possibly second) term, should liberals fault her for potentially tilting the balance of the court for decades to come?”
Ultimately, Justice Ginsburg will have to determine on her own when she is ready to retire and for now, she shows no signs of being ready to leave the bench.

Google Shuts Down Oracle Corp.

Google scored a verdict for the defense on Wednesday in its smart phone battle with Oracle Corp. after a jury discarded all claims of patent infringement. The Recorder shared Google’s official statement:
“Today's jury verdict that Android does not infringe Oracle's patents was a victory not just for Google but the entire Android ecosystem."
However, the trial judge, U.S. District Judge William Alsup, has said that he expects the case to reach the U.S. Court of Appeals for the Federal Circuit regardless of its outcome in the District Court.

Pennsylvania Justice’s Bleak Future

Pennsylvania Justice Joan Melvin has pleaded not guilty to nine criminal charges, which allege she illicitly used state workers to campaign when she ran for a Supreme Court seat in 2003 and 2009.  Melvin pleaded not guilty, but the Allegheny County district attorney’s office included about 50 pages of emails with its presentment to back up the charges. Moreover, one can’t help but notice the similarities between Justice Melvin and the criminal conduct of her two sisters. Penn Live reported:
“[Jane Orie] was until recently a state senator, found guilty of 14 counts of theft of services, conflict of interest and forgery. The charges stemmed from Orie’s use of her Senate staff to do political campaigning. She is awaiting sentencing and on Monday stepped down from her Senate seat. 
“Another sister, Janine Orie, was employed as an aid to Orie Melvin and is charged with campaigning for her two sisters on the state’s time and dime. Janine has not yet gone to trial.”

May 23, 2012

The Left Pressures Chief Justice Roberts

President Obama's two statements pressuring the Supreme Court to uphold the Affordable Care Act came just days after the vote on ObamaCare's fate was likely taken by the justices in conference. Since then, there have been endless pleas from liberal politicians, professors, and talking heads urging the Court -- especially Chief Justice Roberts -- to uphold the Act for "non legal" reasons. 
Jennifer Rubin of the Washington Post wrote an in depth response to many of these left-leaning critics in her post "What would a change of vote on Obamacare cost"? Rubin observes:
"The Obama-Leahy-Rosen tag team would ask that Roberts subscribe to some alternate political reality in which Obamacare is very popular and the public would be shocked and rise up in anger that the Supreme Court would overturn the 'popular will.' (They must assume Roberts isn’t aware more than 70 percent of the public think the law is unconstitutional.) 
"The pleaders would ask Roberts to adopt the left’s contention that conservative justices who adhere to the meaning and text of the Constitution can’t all vote one way for fear it will 'look bad,' but liberal justices are free to march uniformly as they see fit. 
"In essence, the left asks Roberts, knowing he believes the law to be unconstitutional, to nevertheless switch sides and thereby violate his oath of office. That’s the one where he swore to 'administer justice without respect to persons, and do equal right to the poor and to the rich.' And without regard to which side whines the loudest."
Despite all the talk and difference of opinion, the fate of ObamaCare has yet to be formally decided. One hopes the Supreme Court will weigh in on ObamaCare solely based on its Constitutional merits -- separate from ideology and political motives.

May 22, 2012

Lawsuits Seek Religious Freedom

Yesterday, a large and diverse group of plaintiffs filed lawsuits in a dozen federal courts, challenging the administration's rule that requires many religious employers to provide coverage for contraception. Richard Garnett, of National Review's Bench Memos explains:
"These lawsuits, like the many others that had already been filed, are asking the courts to enforce the Constitution and the Religious Freedom Restoration Act, and to protect religious liberty and conscience from a regrettable and burdensome regulatory mandate, a mandate that would impose a serious and unnecessary burden on many religious institutions’ commitments, witness, and mission. The mandate purports to require many religious schools, health-care providers, and social-welfare agencies to compromise their institutional character and integrity. In a society that respects and values diversity, as ours does, we should protect and accommodate our distinctively religious institutions, and welcome their contributions to the common good."
Garnet insists that the ultimate goal of these lawsuits is not to seek control of what their employees do in private; religious institutions are simply trying to avoid being forced by the government into acting in a way that is inconsistent with their values. Garnet concludes, "We Americans do not agree about what religious freedom means, but we have long agreed that it matters, and should be protected through law."

May 21, 2012

Filibuster is Not Unconstitutional

The nonpartisan citizen's lobbyist group, Common Cause, has filed a complaint in the U.S. District Court of D.C. asking that Senate filibusters be declared unconstitutional. Ed Whelan of The National Review believes that Common Cause's complaint ought to be dismissed.

His stance is based on these two general claims:
1. "The Constitution confers on each House of Congress the broad authority to 'determine the Rules of its Proceedings.' (Art. I, § 5.)"
2. "With regard to Common Cause’s objections, I don’t see any material difference between how the filibuster operates and how the Senate’s committee structure (also a creation of Senate rules) operates. When, as routinely happens, a bill or a nomination is referred to a committee, the Senate thereby vests in a minority of the Senate the ability to block any further action on the bill or nomination. Indeed, the minority is much smaller than the minority needed to sustain a filibuster." 
In other words, if Common Cause's argument were correct "that would mean each House's system of referring to matters to committees is also unconstitutional." 

Michigan Justice Under Fire

Diane Hathaway, a Michigan Supreme Court justice, is in the hot seat after a report detailing Hathaway's questionable financial transactions was released. The report was issued by Ross Jones of ABC affiliate WXYZ and is drawing a lot of attention to Hathaway's possible misconduct:
"[R]ecords show in a little over a year, [Justice Hathaway] owned four homes: one in Florida, and three in Grosse Pointe Park.
"The homes are a part of a dizzying property shuffle that experts say raise ethical and legal questions, but Justice Hathaway has been ducking those questions for more than six weeks. . . .
"[Lawyer] Howard Young says when his clients have asked about moving assets out of their names to qualify for a short sale, he’s told them to be cautious.
“'Those are typically fraudulent transfers, because they are done with the intent to delay, hinder, or defraud creditors,' said Young. . . .
"Judges are held to a high standard of conduct in Michigan, and according to the state judicial code, they need to avoid even the 'appearance of impropriety.' "
Justice Hathaway has yet to publicly respond to the allegations. Ironically, Hathaway was presented with the "Judicial Integrity Award" by Michigan Association for Justice, just days before the allegations came out.

GM Tax Break Threatens Rule of Law

In a May 18 op-ed at, the Committee for Justice’s Curt Levey discusses an egregious example of crony capitalism – the unprecedented and legally indefensible tax break the Obama Administration crafted for its virtual subsidiary, General Motors:
“While President Obama campaigns on ‘tax fairness’ – eliminating loopholes for the wealthiest one percent, the oil companies and other big corporations – his favorite corporate giant is enjoying an unprecedented, under-the-table multi-billion dollar tax break. [That’s] in addition to the more than $50 billion given to General Motors in the bailout … The result? In 2011 … GM paid a tax rate of negative 1.5% on its record profits – less than nothing. … Though the Treasury Department ‘had no legal or economic justification for [this tax break],’ according to [law and business professors], ... GM’s sweetheart tax deal has largely slipped under the radar screen, allowing Obama to … claim the auto bailout cost taxpayers far less than it actually has.”
Why is the Committee for Justice worried about tax breaks? Because our mission is promoting the rule of law, which requires that the Constitution and other laws 1) mean what they say – not what some judge or government official wants them to mean – and 2) apply equally to all, regardless of how much empathy a judge has for you or how politically connected you are.

Unfortunately, the special tax break granted to General Motors is all about political connections. The Obama Administration should not be bending provisions of the tax code beyond recognition to favor any company. But when the favored company is a virtual subsidiary of the Administration – a majority of its board appointed by the Treasury Department, its CEO hand-picked by the White House, and its strategy and public relations coordinated with the Administration – the special treatment is a dangerous affront to the rule of law.


May 18, 2012

Obama Fills Judiciary Emergencies

Todd Ruger, of The Blog of Legal Timesreports that two new nominations were submitted by President Obama to the Senate last Thursday:
"A magistrate and civil lawyer have been nominated to become district court judges for the Middle District of Pennsylvania, where the two bench positions have been declared judicial emergencies and have been open for more than two years."
If confirmed, Matthew Brann and Malachy Mannion will fill vacancies created when District Judge Richard Caputo took senior status in March 2009, and District Judge Thomas Vanaskie was elevated to Court of Appeals for the Third Circuit in April 2010.

Since 1995, Brann has been a partner at the law firm Bran, Williams, Caldwell & Sheetz. His concentration has been in torts, contracts, and real property litigation. Mannion is a former assistant U.S. attorney, and has been a magistrate for the Middle District of Pennsylvania since 2001.

May 14, 2012

Amending the Constitution with 5 Votes

A New York Times article scorning the Constitution as unworthy of emulation approvingly quotes Prof. Levinson’s view that it is extremely difficult to amend. This is true of resort to Article V. However, unnoticed by the public and most pundits, activist interpretation abuse has effectively neutered Article V, amending the amendment process itself by transferring the amending power to the Supreme Court.

In practice, the justices have "interpreted" the very word "interpret" to be a license for them not only "to say what the law is," but to say it isn't what it is, and is what it isn't. Turning interpretation into a scam, they repeatedly have authorized what is constitutionally prohibited and prohibited what is authorized or required.  

In reality, myriad de facto constitutional amendments have been very easily adopted, often by as few as five justices. This has caused Supreme Court nominations to become proxy fights to determine what amendments are going to be imposed (and statutes rewritten). 

Given the number of Supreme Court appointments likely to be made between 2013 and 2017, the next election will be critical for the future of the Constitution and the country. It will determine whether there will be unlimited government power over the minutest details of the lives of the American people, limited only by newly invented "rights" never imagined by the framers.  

For more on this subject, see my article originally appearing here and slightly revised here.

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Misplaced Blame on ObamaCare's Fate

As June nears, we anxiously await the Supreme Court's decision on ObamaCare. As soon as the oral arguments began, however, it was apparent that upholding ObamaCare in its entirety is unlikely. Many have attacked Solicitor General Don Verrilli for his supposed weak defense of ObamaCare at oral argument.

David Savage of the Los Angeles Times seems to blame the Solicitor General's voice:
"His (Solicitor General Don Verrilli) worst moment came as he rose to defend President Obama's health care law and its requirement that all Americans have health insurance or pay a tax penalty. His voice sounding weak, Verrilli paused after his second sentence and coughed. 
He was hoarse. He took a sip of water, and it went down his windpipe. He couldn't get out a sound for a few seconds. You can imagine what that felt like," said Washington attorney Paul Smith, a friend and former law partner of Verrilli's."
Frankly, if ObamaCare is struck down, it will be because of the Constitution, not Verrilli's voice. It's unfair to scapegoat Verrilli; the responsibility needs to be placed on those that wrote the 2,700 page bill. As was previously mentioned (see Judicial Activism & the Commerce Clause), the Constitution puts a limit on Congress’s powers, and the Commerce Clause does not give Congress the power to require Americans to buy health insurance. If you have a problem with those limits, blame the Founding Fathers.

Nguyen Confirmed to Ninth Circuit

Just last Monday, May 7, the Senate confirmed Jacqueline H. Nguyen of Los Angeles to the U.S. Ninth Circuit Court of Appeals. Nguyen received minimal resistance and was confirmed by the Senate with a 91-3 vote.

Nguyen’s confirmation was expected, as she was included in a deal among Senate leaders to confirm 14 noncontroversial judicial nominees by this summer. Last Monday, the Senate also confirmed two judges by voice vote: Kristine Gerhard Baker to be District Judge for the Eastern District of Arkansas, and John Lee to be District Judge for the Northern District of Illinois.

David Madden, of the Ninth Circuit's Public Information Office details some of Nguyen’s professional background:
“Judge Nguyen was also the nation’s first federal district court judge of Vietnamese descent. She was previously appointed by President Obama to serve on the U.S. District Court for the Central District of California, receiving her commission on December 4, 2009.
Prior to coming onto the federal bench, Judge Nguyen has served as a judge of the California (Los Angeles County) Superior Court from 2002 to 2009, and as a federal prosecutor in the Office of the U.S. Attorney for the Central District of California, from 1995 to 2002. ... Judge Nguyen began her legal career at the law firm of Musick, Peeler & Garrett LLP, where she was a litigation associate from 1991 to 1994.”