Un-Constitutional

From Michelle Malkin:

3:11 PM (9 hours ago)

Unconstitutional: Florida judge strikes down Obamacare mandate; full decision embedded; all 47 GOP Senators sign on to DeMint repeal bill; White House reax: ruling is “odd,” “overreaching” “activism;” DOJ readies appeal

from Michelle Malkin by Michelle Malkin

 

Hey, remember when conservatives objected to the Obamacare federal individual mandate on constitutional grounds and the liberal establishment laughed?



The word of the day: “Void.”



The constitutional clause of the day: The Commerce Clause.



Via Forbes (and remember that more than half of all states are suing to nullify Obamacare and three states – Missouri, Arizona and Oklahoma – rejected the Obamacare mandate via ballot measure):



Justice Roger Vinson of the U.S. District Court in Pensacola ruled today that the primary mechanism used by health reform to achieve universal insurance coverage–the individual mandate–is illegal. If his ruling stands it would void the 2,700 page, $938 billion health reform bill passed last year.



“Because the individual mandate is unconstitutional and not severable, the entire Act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications,” Vinson writes.



With this ruling, and a similar one in December by Judge Henry Hudson in Virginia, it’s likely that the U.S. Supreme Court will be the final arbiter of whether ObamaCare stands. Two other lawsuits–one in Michigan and one in Virginia–were thrown out by other federal district judges last year who ruled the constitutional challenge lacked merit…



…The argument that’s had the most traction is based on the limitations of the Commerce Clause of the Constitution. The Commerce Clause explicitly allows the federal government regulate interstate commerce. But it also has been used to justify federal laws that affect other kinds of economic activity.



The question raised by the state lawsuits against the health reform bill is whether refusing to buy insurance constitutes interstate commerce. In his ruling Vinson says that in the past the Commerce Clause has been used to regulate concrete activities like growing marijuana or navigating a waterway, but not used to force someone to do something they weren’t already doing. “It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause,” he writes.




Vinson rejects the administration’s argument that the health care market is unique since nobody can truly opt out, and that not buying insurance is in itself an economic activity since the cost of care then falls on others. Vinson mocks this argument, writing: “Everyone must participate in the food market… under this logic, Congress could [mandate] that every adult purchase and consume wheat bread daily.” If they didn’t buy wheat bread they might have a bad diet which would put a strain on the health care system, he writes.



Vinson Ruling





***



Heritage:



Today’s decision should be a major source of concern for the Obama administration for at least five reasons.



First, the parties involved. This case involves a majority of the states (26), and the National Federation of Independent Business. If not completely unprecedented, the very fact that more than half the states marched into federal court on behalf of themselves and their citizens to challenge an unconstitutional federal program falls into the category of “beyond any recent memory.” The sheer magnitude of the parties involved guarantees that the courts on appeal will pay particular attention to this case.



Second, the case creates a very bad trend for the administration. Those courts which have taken the time to more fully develop the record in the case, and to have more briefing and hearings (Virginia and Florida), have ruled Obamacare unconstitutional. This is important because, contrary to the White House spin, litigation is not a scoreboard. It is not enough to say that you have won some and lost some. Some district court wins “count” more, because they are more indicative of what is likely to come next. Here, the cases the administration has lost have been better developed, have significant and sophisticated parties, and are in a better position for appeal than the more cursory cases that they have won at more preliminary stages.




Third, the case strikes down the whole of Obamacare based on the unconstitutionality of the mandate. The administration has tried to have it both ways on this one, with the President and key proponents arguing how essential the mandate is, while the Justice Department arguing at times that it was absolutely essential, and at times that it was severable. If the DOJ really wanted to keep the bill severable, perhaps they should not have argued in court that removing the mandate while maintaining the remaining requirements of the bill would “inexorably drive [the health insurance] market into extinction.” Those who would falsely accuse the Judge of overstepping his bounds must recognize both the standards for severability, which he properly applied, and the damning concession made on this point by the Justice Department.



The fourth problem for the Obama DOJ: Judge Vinson’s decision is thorough, well-reasoned, and likely will be very persuasive to appellate judges, and eventually Justices, who review the case. He was judicious, ruling against the states on the spending clause claim and for them on the Commerce Clause. The most important document in any appeal is the decision below, and Judge Vinson’s will give the court of appeals much to consider. Put simply, Vinson has just made the Obama DOJ’s job much more difficult…



***



Update: Sen. Jim DeMint tweets that all 47 GOP Senators are now on board as co-sponsors of his Obamacare repeal bill.



Update: The White House calls the Florida ruling “odd” and “overreaching.”



Pot. Kettle.




***



DOJ gets ready to appeal:



“The department intends to appeal this ruling to the Eleventh Circuit Court of Appeals.



“We strongly disagree with the court’s ruling today and continue to believe – as other federal courts have found – that the Affordable Care Act is constitutional. This is one of a number of cases pending before courts around the country, including several that the government has won in the district courts that are now before the courts of appeals. There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law and we are confident that we will ultimately prevail on appeal.”



“We are analyzing this opinion to determine what steps, if any – including seeking a stay – are necessary while the appeal is pending to continue our progress toward ensuring that Americans do not lose out on the important protections this law provides, that the millions of children and adults who depend on Medicaid programs receive the care the law requires, and that the millions of seniors on Medicare receive the benefits they need.”

Obama Regime To Tackle Gun Control In Coming Weeks

From Personal Liberty Digest:

Obama Administration To Tackle Gun Control In Coming Weeks


January 31, 2011 by Personal Liberty News Desk

White House officials have confirmed that President Barack Obama will address gun control policies soon. However, some critics believe that he should have used the State of the Union platform to address the hotly-debated topic.



According to media reports, the President intentionally omitted gun control from his nationally-televised address in order to focus on the topics of job creation and the economy. Administration officials said that the White House will unveil its plans to strengthen current laws, which allow some mentally unstable individuals to obtain certain weapons.



Gun control advocacy groups have pressured Obama and Federal lawmakers to implement more thorough background checks for firearm purchases following the Jan. 8 shooting in Tucson, Ariz. that left six people dead, including a 9-year-old girl.



The National Rifle Association (NRA), an influential lobbying group, has warned that an overreaction to an isolated incident may lead to a violation of the 2nd Amendment rights.



"Once again, you and your freedoms are being blamed for the acts of a deranged madman, who sent signal after signal that he was dangerous," NRA Executive Vice President Wayne LaPierre said in an email to the group's members, quoted by The Washington Post.

Nullification Of Un-Constitutional Laws

From Personal Liberty Digest:

Nullification Of UnConstitutional Laws


January 31, 2011 by Bob Livingston



Nullification, the idea that States don’t have to follow laws that are unConstitutional, is a growing movement in the United States. Legislators in as many as 11 or 12 states have either introduced nullification measures or plan to once their State legislatures are in session.



Many of these states are among the 25 that have sued the Federal government over the mandates in Obamacare — the unConstitutional and farcical legislation that would require Americans to purchase healthcare insurance whether they want it or not.



Now the zombie talking heads and pundits in the mainstream media are using lies and tired arguments to try and “educate” the populace that nullification is a losing proposition. (Watch the video to see a response to the zombies and their mindless questions.) Their points? The Federal government is supreme. Nullification equals racism. Nullification equals slavery. Only Neo-Confederates would get behind such a thing. Say it enough and the sheeple will believe it… and comply.







From a Jan. 26 story by The Associated Press:



“The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’ The Idaho attorney general has weighed in as well, branding nullification unconstitutional.”



And:



“‘There’s nothing in the Constitution to suggest that the states are superior to the federal government," [David Gray] Adler [a Constitutional scholar who directs the University of Idaho's McClure Center for Public Policy Research] said. ‘We have a long string of Supreme Court decisions that reject their theory.’”



And:



“Nullification has been invoked several times over the years — to no avail.”



Lies, lies, lies.



Nullification has a long and storied history in the country, and it stems from the idea that “the United States consists not of a single, aggregated people, but of particular people, organized into distinct states,” writes Thomas E. Woods Jr., in his book Nullification: How to Resist Federal Tyranny in the 21st Century.



This idea, called the compact theory, is supported by the very fact that the states voted separately to ratify the Constitution, and that the Constitution was not ratified by a single, consolidated vote of all individuals in the original 13 states, according to Woods.



This, of course, is the opposite of what most children — educated in public schools that propagandize the supremacy of the Federal Government and centralized authority — are taught. They are taught the nationalist theory.



Woods writes that the nationalist theory stemmed from the arguments made by Joseph Story in his Commentaries on the Constitution of the United States, published in 1833. In this view, the U.S. is just another modern unitary state, in which a monopolistic central authority is the source of all power, and any lesser bodies (in this case, the states) derive their own power and privileges from this central authority.



That’s the pabulum foisted on our children in government re-education education camps. It is designed to promote fealty to almighty government.



Neither Thomas Jefferson nor, more importantly James Madison, subscribed to the nationalist theory. And they made their point early on — in the “Principals of ’98.”



In 1798 the second president, John Adams, signed legislation that made it a treasonable activity to publish “any false, scandalous and malicious writing.” This was one of the laws that became part of the Alien and Sedition Acts. As a result, 25 men, most of them Republican supporters of Thomas Jefferson, were arrested and their newspapers forced to shut down.



One of those arrested was Benjamin Franklin’s grandson, Benjamin Franklin Bache, editor of the Philadelphia Democrat-Republican Aurora.



In response, Jefferson, then the vice president, secretly wrote the Kentucky Resolutions of 1798. In them he argued that the Alien and Sedition Acts were acts of usurpation — that the Federal government had overstepped its bounds and was exercising powers which belonged to the States.



After all, the 10th Amendment states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



He saw the Constitution not as a document that restrained the people, but as one that restrained the Federal government. And he believed that was a good thing. As an aside: Obama has stated just the opposite. He has said he finds it unfortunate that the Constitution contains the restrictions on Government that it does.



Jefferson corresponded with James Madison (known as the father of the Constitution) about the Kentucky Resolutions and Madison drafted similar Resolutions for Virginia.



Both Kentucky and Virginia adopted the resolutions which essentially said that when the Federal government assumes undelegated powers — those not enumerated in the Constitution — those acts are “unauthoritative, void, and of no force.”



In subsequent years, nullification was employed by the New England states to oppose everything from an embargo on exports to tariffs to military conscriptions to opposition of the fugitive slave act. And nullification continues today.



It was Connecticut Governor Jonathan Trumbull who said in 1809, “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”



And nullification continues today, as evident by California’s defiance of Federal drug laws, laws that restrict Federal law enforcement agencies from making arrests without first informing local sheriffs and measures passed by States that exempt firearms and ammunition from Federal oversight as long as it is sold in-state.



Yes, rogue U.S. Supreme Courts have ruled that Federal law supersedes State law. But that is because Supreme Court justices are employees of the Federal government — just as Congresspeople are employees of the Federal government — and they have long shown a proclivity to rule in favor of more government. They have become the despotic judicial oligarchy Jefferson feared when he wrote, “You seem… to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”



Finally, the idea that “There’s nothing in the Constitution to suggest that the states are superior to the federal government” completely disregards the 10th Amendment — an amendment as important to those approving the original Constitution as the other nine.



Many went to the polls in November seeking to remove progressives from Congress. And in many cases, the effort was a successful first step in slowing the growing leviathan of Marxism that has pervaded both the Democrat and Republican parties. Unfortunately, the idea that the Federal government is supreme is too entrenched throughout the three branches of government and the populace to depend on elections as the final remedy.



Nullification of unConstitutional laws, and a return to the Constitution and the America envisioned by the Founders, is the only way for Americans to take their government back. And it’s got to happen one state at a time.

Reagan Strikes Back: Judge Rules All ObamaCare Un-Constitutional

From Floyd Reports:

Reagan Strikes Back: Judge Rules All ObamaCare Unconstitutional




Posted on January 31, 2011 by Ben Johnson





by Ben Johnson







President Obama’s health care takeover just fought the U.S. Constitution, and the Constitution won.



Earlier today, Judge Roger Vinson of the district court in Pensacola, Florida, issued a 78-page decision striking down all of the president’s heath insurance “reform” as unconstitutional. Vinson ruled the individual mandate, which requires all Americans to purchase health insurance, violated the Commerce Clause. He found that mandate cannot be separated from the rest of the bill, so the entire bill is unconstitutional:



I must reluctantly conclude that Congress exceeded the bounds of its authority in passing the Act with the individual mandate…Because the individual mandate is unconstitutional and not severable, the entire act must be declared void.



Vinson, who was appointed by President Ronald Reagan, made clear his opposition to the bill came from its gross violation of the Constitution. Vinson wrote, “If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain.” He concluded, “Congress must operate within the bounds established by the Constitution.”



This lawsuit was filed by Florida Attorney General Bill McCollum, a former Republican Congressman, and ultimately joined by 26 states.



Today’s ruling raises several significant points. Vinson’s decision comes just a month after District Judge Henry E. Hudson of Virginia ruled the individual mandate provision is unconstitutional. Although Hudson found that requiring citizens to buy health insurance or face a fine “exceeds the constitutional boundaries of congressional power” in December, his ruling applied only to that provision. That repeal fight, led by Virginia Attorney General Ken Cuccinelli, hoped to see all of ObamaCare ruled illegitimate. Today’s ruling grants their wish. Either or both rulings will inevitably be decided by the Supreme Court, but the process could take years.



Which raises the second point: Elections have consequences. Judge Vinson was appointed by Ronald Reagan. Although Republicans have appointed their share of poor judges over history (do the names Earl Warren or John Paul Stevens ring a bell?), the most radical judges at all levels of the judiciary have received their patronage courtesy of the Democratic Party. In 2008, the American people elected a president who stated the Constitution “represented the fundamental flaw of this country that continues to this day.” Twenty-eight years earlier, they elected a president with a clear history of supporting constitutional boundaries for government. Ronald Reagan’s believed America represents a “shining city on a hill,” while Barack Obama continually expounds upon “our tragic history.” The views of a president, however charismatic of likable he appears on manipulated media, will continue to affect every level of our government even after they pass away. America can be happy the man who appointed Judge Vinson loved the Founders, their system of government, and the concept of liberty. Reagan’s most famous speech on the subject of socialized medicine leads me to believe the Gipper is up there smiling at today’s ruling.



(The story continues following this video.)







The last and most important factor raised by today’s ruling is one that has been apparent for months, but must be confirmed again and again: The American people have rediscovered the Constitution, and the entire Republican Party had better follow suit. Contrary to what hacks on both sides of the aisle say, the Tea Party movement did not begin inside the Republican Party or as a reaction to Barack Obama. The origins of the Tea Party go back ideologically for decades, and proximately they go back to the days of George W. Bush. For his admirable personal and presidential attributes, his free-spending fiscal record alarmed a growing segment of the country, resulting in the loss of Congress in 2006 and the presidency two years later. Obama’s pell mell rush toward debt crisis and insistence on foisting socialized medicine on a country that did not want it burst the dam of public disapproval at the elites’ irresponsibility. The Tea Party was born — and it scared both parties silly. As Floyd Brown has written, “Underneath all the bluster, we live in a single party country where the Republicans and Democrats are just different factions of a big-government loving elite feasting on the plunder of an enormous bureaucracy. The reason both Republicans and Democrats fear the Tea Party movement is because its members aren’t from the club.”



The Tea Party began as an ad hoc opposition to bailouts, takeovers, and debt slavery. But it has evolved into a shrewd and powerful political vehicle — as Michele Bachmann put it, “a dynamic force for good” — all its own. With numerical growth has come intellectual depth, with its members increasingly pledging their allegiance to the U.S. Constitution and its expressed limits on federal power.



We know who is to blame for our plight: we are. We elected or tolerated political leaders in both parties who ratcheted up the spending, tightened the shackles of government dependence, exported jobs, imported cheap labor, and bought off the rest of us with pleasant-sounding entitlement programs. Our overindulgence bought us our current plight.



Our president may not understand it, but the Pilgrims who came to this country did so for religious reasons; they believed they were establishing a government that would best reflect Christian morality. Their descendants crafted a Constitution that secured the maximum amount of liberty for them and their posterity.



Once again today, Americans see themselves in a moment comparable to the Israelites of yore. In the Old Testament, during the days of King Josiah, the people had forsaken their heritage and invented better, more “modern” ways of living. Then the high priest Hilkiah found the Bible inside the Temple — unused and forgotten for a generation. The Bible says, “Now it happened, when the king heard the words of the Book of the Law, that he tore his clothes” (II Kings 22:11). The American people have awakened from their long national flirtation with Fabian socialism, rediscovered the founding text of this nation, and committed themselves to seeing that their elected leaders follow it again.



That decision is a healthy corrective — and a declaration of revolution.

Undercove Agents Expose Loop-Hole In U.S. Gun Laws

From The Guardian (U.K.) and Common Dreams.org:

Published on Monday, January 31, 2011 by The Guardian/UK


Tucson Shooting: Undercover Agents Expose Loophole in US Gun Laws

New York mayor sent investigators to Phoenix, Arizona – where they were able to buy Glock pistols with no questions asked

by Ed Pilkington in New York



Undercover investigators have exposed the ease with which high-powered guns can be bought in the US, purchasing the same type of pistol used in the Tucson massacre just two weeks later in a neighbouring city – with no questions asked.





New York's mayor, Michael Bloomberg, sent a team of undercover agents to the Crossroads of the West gun show in Phoenix, Arizona, just 120 miles away from the scene of the Tucson shooting. There, on 23 January, they bought a Glock 9mm pistol of the kind wielded by Jared Loughner when he killed six people and wounded 13, including the US congresswoman Gabrielle Giffords, at a public meeting in Tucson.



The agents filmed the gun sales using hidden cameras.



They bought a Glock 17 gun for $480 (£299) and three $40 extended magazines each holding 33 bullets. Loughner had a 33-round extended magazine attached to his Glock 19, allowing him to wreak carnage in Tucson by shooting multiple times.



The New York investigators bought the gun with no questions asked other than the requirement of an ID card.



Under current federal law, that sale was legal because of the so-called "gun show loophole" that allows occasional gun sellers to trade weapons without carrying out a background check to ensure that the purchaser is not mentally ill, a criminal, or a drug abuser. Such "private" sales are responsible for 40% of all gun sales in the US.



Of less certain legality was the purchase that the New York investigators went on to make of a SIG-Sauer SIG Pro 9mm pistol for $500, and a Smith & Wesson for $450. In both cases, the undercover agent admitted to the seller that they "probably couldn't pass a background check".



Under federal law even private sellers are not permitted to sell guns to any individual they "know", or have "reason to believe", is not eligible to own a gun.



The video footage of the sale of the SIG-Sauer gun shows the investigator saying he wants to buy a weapon with "stopping power ... that's concealable. You know what I mean?"



The seller appears to be complicit in the idea of disguising the purchase when he replies: "The good thing is, if you don't like it, you can just sell it later and it's not in your name."



The seller demands only the production of an ID card to go ahead with the purchase, and the investigator then says: "So, no background check?"



The seller replies: "No."



Investigator: "That's good because I probably couldn't pass one, you know what I mean?"



The seller says nothing, and the sale goes ahead.



Bloomberg released the video on Monday, saying: "We have demonstrated how easy it is for anyone to buy a semi-automatic handgun and a high capacity magazine, no questions asked."



The undercover operation was a repeat of a sting that New York carried out on gun shows in Nevada, Tennessee and Ohio in 2009. That exercise found that 63% of the gun sellers approached were in breach of federal law by willingly selling guns to people who admitted they probably wouldn't pass a background check.



In the case of the Tucson shooting, Loughner did pass background check before he bought the Glock 19. However, he only managed to do so because the US army, which rejected him because of his history of drug abuse, failed to pass on that information to the FBI's national database.



© Guardian News and Media Limited 2011

EFF Uncovers Wide-Spread FBI Intelligence Violations

From EFF and Common Dreams.org:

Published on Monday, January 31, 2011 by Deeplinks Blog / EFF


EFF Uncovers Widespread FBI Intelligence Violations

by Mark Rumold



EFF has uncovered widespread violations stemming from FBI intelligence investigations from 2001 - 2008. In a report released today, EFF documents alarming trends in the Bureau's intelligence investigation practices, suggesting that FBI intelligence investigations have compromised the civil liberties of American citizens far more frequently, and to a greater extent, than was previously assumed.



Using documents obtained through EFF's Freedom of Information Act (FOIA) litigation, the report finds:



•Evidence of delays of 2.5 years, on average, between the occurrence of a violation and its eventual reporting to the Intelligence Oversight Board

•Reports of serious misconduct by FBI agents including lying in declarations to courts, using improper evidence to obtain grand jury subpoenas, and accessing password-protected files without a warrant

•Indications that the FBI may have committed upwards of 40,000 possible intelligence violations in the 9 years since 9/11

EFF's report stems from analysis of nearly 2,500 pages of FBI documents, consisting of reports of FBI intelligence violations made to the Intelligence Oversight Board - an independent, civilian intelligence-monitoring board that reports to the President on the legality of foreign and domestic intelligence operations. The documents constitute the most complete picture of post-9/11 FBI intelligence abuses available to the public. Our earlier analysis of the documents showed the FBI's arbitrary disclosure practices.



EFF's report underscores the need for greater transparency and oversight in the intelligence community. As part of our ongoing effort to inform the public and elected officials about abusive intelligence investigations, we are distributing copies of the report to members of Congress.



A pdf copy of the report can be downloaded here.https://www.eff.org/files/EFF%20IOB%20Report_Final%20Version.pdf

The Supreme Court Is Not Our Benevolent Dictator

From Human Events and ADF:

The Supreme Court Is Not Our Benevolent Dictator


by Rob Schwarzwalder



01/30/2011







The clear and inherent constraints of the Constitution would, if applied with intellectual honesty, put an end to the expansionist vision of the federal government that is essential to the Left's program of statism.



The Left cannot abide applying the Constitution as it is written because this would upend its multipronged efforts to reshape American government and society at large. There is, for example, nothing in the Constitution allowing for a federal mandate that all adults purchase health insurance.



The Founders gave their political successors an amendment process so they might alter the text as the latter deemed wise (with, of course, the consent of voters in the states), and even included an amendment of their own (the 10th) clarifying that what is not delegated to the federal government is the province of the states. Why would they bother with these things if they believed the text should be open to continuous, ideological reinterpretation?







These are chilling notions to the liberal ideologues who wish to impose their omni-beneficence on us plebian unwashed. Only a "living, breathing" Constitution affords the room to get around the text's obvious constrictions. Just so my meaning is sufficiently transparent: A person breathes. A document states.



There is another dimension to this narrative: a willingness by some on the Left to consign to the Supreme Court all power over constitutional interpretation.



"Anybody who knows anything about constitutional law knows it's up to nine men or women [to determine] what the Constitution says," said Rep. Steve Cohen (D.-Tenn.) in his attack on the reading of the charter's text on the House floor.



This is a stunning assertion, in that it implies that every executive and legislative branch action, not to mention every action undertaken by every political and juridical body in the nation, rests upon five justices.



If Cohen is correct, nothing done by any other branch or level of government can be viewed as firm. All remains tentative until five Supreme Court justices decide its validity. And then only until another five decide whether their predecessors were correct.



This is not only horrible, anti-historical constitutional interpretation, it is tantamount to political chaos: Why bother having a Congress or a President or a Department of Defense or even a traffic court if the Supreme Court will decide how it wishes to construe the Constitution in any given case?



Consider the wise words of Abraham Lincoln, given during his first inaugural. Reflecting on the exact attitude toward the Constitution portrayed by Cohen, Mr. Lincoln noted that "if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court ... the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."



The Supreme Court is, or should be, what Chief Justice John Roberts rightly called "an umpire." As he said to the Senate Judiciary Committee during his confirmation hearing, "Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules, they apply them."



This perfectly reasonable statement was enough to madden even the most stentorian liberal heart. In a speech to the liberal American Constitution Society (whose stated purpose is to "articulate a progressive vision of our Constitution and laws"), Sen. Al Franken (D.- Minn.) intoned, "How ridiculous. Judges are nothing like umpires."



Thanks for clearing that up, senator.



The role of the U.S. Supreme Court is to take the text of the Constitution and apply it to important legal cases. The justices learn from precedent but are not bound by it. They gather wisdom from previous opinions but are not beholden to them.



Instead, they are bound—beholden—to the text as it was written. Any ambivalent meaning can be understood by studying The Federalist Papers, the debates about the Constitution and the Bill of Rights in contemporaneous congresses and state ratifying conventions, and the dictionaries and common understanding of legal terms current in the 1770s and 1780s.



Through the amendment process, "We the People" can change what we don't like or include things we wish to add. But no entity or person—no President, no Congress, and no justice—has the right to reinterpret the text according to his or her own whim or personal conviction.



Such efforts amount to nascent and incremental tyranny, which debases the liberties the Supreme Court has been organized to protect.







--------------------------------------------------------------------------------

Family Research Council Sr. Vice President Rob Schwarzwalder, formerly a presidential appointee in the George W. Bush Administration, previously served on the staffs of Members of Congress who held posts on the Senate and House Armed Services Committees.

The Constitutional Right To Refuse: Roe, Casey, And The Fourteenth Amendment Rights

From Social Science Research Network and ADF:


The Constitutional Right to Refuse 1


THE CONSTITUTIONAL RIGHT TO REFUSE:

ROE, CASEY, AND THE FOURTEENTH AMENDMENT RIGHTS

OF HEALTHCARE PROVIDERS

Mark L. Rienzi1

The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers




Mark Rienzi

Catholic University of America - Columbus School of Law





January 27, 2011







Abstract:

The Fourteenth Amendment rights of various parties in the abortion context – the pregnant woman, the fetus, the fetus’ father, the state – have been discussed at length by commentators and the courts. Surprisingly, the Fourteenth Amendment rights of the healthcare provider asked to provide the abortion have not. Roe and Casey establish a pregnant woman’s Fourteenth Amendment right to decide for herself whether to have an abortion. Do those same precedents also protect her doctor’s right to decide whether to participate in abortion procedures?



The Court’s substantive due process analysis typically looks for rights that are “deeply rooted” in our history and traditions. Accordingly, this article addresses the historical basis for finding that providers do indeed have a Fourteenth Amendment right to refuse to perform abortions. This historical analysis shows that the right to refuse passes the Court’s stated test for Fourteenth Amendment protection. In fact, the right to refuse actually has better historical support, and better satisfies the Court’s stated tests, than the abortion right itself.



Beyond this historical case, a healthcare provider’s right to make this decision also fits squarely within the zone of individual decision-making protected by the Court’s opinions in Casey and Lawrence v. Texas, and protects providers from the types of psychological harm that the Court recognized in Roe and Casey. For these reasons, under Roe and Casey, a healthcare provider has a Fourteenth Amendment right to refuse to participate in abortions.



Keywords: Fourteenth Amendment, abortion, conscience, refusal, religion, free exercise, substantive due process, due process, civil rights, reproductive freedom, pharmacist, plan b, morning after pill



Working Paper Series

Date posted: January 28, 2011

Federal Judge In Florida Rules ObamaCare Un-Constitutional

From Newsmax.com:

Federal Judge in Florida Rules Obamacare Unconstitutional


Monday, 31 Jan 2011 03:05 PM Article Font Size





PENSACOLA, Fla. – A federal judge ruled Monday that the Obama administration's health care overhaul is unconstitutional, siding with 26 states that sued to block it. U.S. District Judge Roger Vinson accepted without trial the states' argument that the new law violates people's rights by forcing them to buy health insurance by 2014 or face penalties.



Attorneys for the administration had argued that the states did not have standing to challenge the law and that the case should be dismissed.



The next stop is likely the U.S. Supreme Court. Two other federal judges have upheld the insurance requirement, but a federal judge in Virginia also ruled the insurance provision violates the Constitution.



In his ruling, Vinson went further than the Virginia judge and declared the entire health care law unconstitutional.



"This is obviously a very difficult task. Regardless of how laudable its attempts may have been to accomplish these goals in passing the Act, Congress must operate within the bounds established by the Constitution," Vinson wrote in his 78-page ruling.



At issue was whether the government is reaching beyond its constitutional power to regulate interstate commerce by requiring citizens to purchase health insurance or face tax penalties.



Attorneys for President Barack Obama's administration had argued that the health care system was part of the interstate commerce system. They said the government can levy a tax penalty on Americans who decide not to purchase health insurance because all Americans are consumers of medical care.



But attorneys for the states said the administration was essentially coercing the states into participating in the overhaul by holding billions of Medicaid dollars hostage. The states also said the federal government is violating the Constitution by forcing a mandate on the states without providing money to pay for it.



Florida's former Republican Attorney General Bill McCollum filed the lawsuit just minutes after Obama signed the 10-year, $938 billion health care bill into law in March. He chose a court in Pensacola, one of Florida's most conservative cities. The nation's most influential small business lobby, the National Federation of Independent Business, also joined.



Other states that joined the suit are: Alabama, Alaska, Arizona, Colorado, Georgia, Indiana, Idaho, Iowa, Kansas, Louisiana, Maine, Michigan, Mississippi, Nebraska, Nevada, North Dakota, Ohio, Pennsylvania, South Carolina, South Dakota, Texas, Utah, Washington, Wisconsin and Wyoming.







© Copyright 2010 Bloomberg News. All rights reserved.





Read more on Newsmax.com: Federal Judge in Florida Rules Obamacare Unconstitutional

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New York Democrat Introduces Bill To Allow Islamic Sharia Financing

From Creeping Sharia:

New York Dem introduces bill to allow Islamic sharia financing


Posted on January 30, 2011 by creeping



Sharia-promoting NY Democrat

via Brooklyn, NY – Lawmaker Wants to Attract More Islamic Investment — VosIzNeias.com. h/t JB



Brooklyn, NY – State Senator Kevin Parker announced a bill today to create an alternative bond market that would be permissible under Islamic law by creating alternatives to the traditional interest-based bonds.



Many Islamic societies use the alternative structure, known as “sukuk,” since Islamic law prevents the securing of interest-bearing bonds. Parker argues that opening up New York to sukuk would open the state’s bond market to a new kind of international investor.



“With the introduction of my legislation, New York leads the nation in fostering new investment opportunities to create jobs, reduce the cost of borrowing, and bring new entrants into New York’s bond markets,” Parker said. “As the historical hub for international commerce and finance, it is imperative we not only stay competitive, but lead in the global marketplace.”



He notes that nations like England, France and South Africa are already in the process of creating sukuk investment vehicles to encourage international investment.



And, his office notes that if the bill passes it will bring in a new, local class of investor that has traditional been left out.



“This legislation reverses an historic inequity where far too many New Yorkers have been unable to benefit from public-private partnerships with the State. I am proud that today, New York once again leads the nation in affording all citizens equal opportunity,” Parker said.



What new, local class of investor is Parker’s office referring to? What New Yorker’s have been unable to benefit from public-private partnerships with the State? Is he referring to Muslims? If they’ve been left out it’s because Muslims discriminate against financing options that aren’t Islamic. Further, if the State’s investment vehicles, even just one, must comply with Islamic sharia law – that is an entanglement question. He’s talking the Islamo-victim talk, but Kevin Parker didn’t come up with this idea – the question is, who did?



Parker is not exactly a savory character however as a recent NY Daily News article suggests, State Sen. Kevin Parker convicted of misdemeanor charges in beating of photographer. He has quite a history of thuggery in addition to his latest conviction:



Two years ago, an aide filed charges against Parker, claiming he pushed her during an argument and smashed her glasses. In 2005, Parker was accused of punching a traffic agent in the face. The charges were dropped after parker agreed to take anger management classes.



If he’s not Muslim now, he may be after a stint on Rikers Isle.





More posts on sharia finance here, and some excellent blogs that cover the topic on the lower left nav

Where Judicial Activism Morphs Into Disregard

From Town Hall:


Debra J. Saunders

Where Judicial Activism Morphs into Disregard

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Sign-Up Four times this month, the U.S. Supreme Court has slapped down the Ninth Circuit Court of Appeals. Four times the Big Bench unanimously reversed Ninth U.S. Circuit Court of Appeals decisions. Unanimous is a big deal. It means that there's no left-right political divide in the Big Bench's findings -- just right on the law and wrong on the law.



I take unanimous seriously. When the California Supreme Court issued a ruling last year that stayed a scheduled execution, I feared yet another over-reaching judicial fiat. But then I saw that all the justices were on board. The law had to be unambiguous.



In the instances of the three criminal reversals this month, the Big Bench clearly was sending a message to the Ninth Circuit -- particularly to Judge Stephen Reinhardt, who had written the opinions. And the message is: Show some respect for the law.



Followers of the Ninth Circuit are painfully aware of its reputation as an activist court that flouts laws it doesn't like and bulldozes rulings that defy its left-leaning politics. The San Francisco-based judicial district serves as a textbook example of how judges should not behave.



Start with Randy Moore's case. In a plea bargain, Moore pleaded "no contest" to the 1995 Oregon murder of Kenneth Rogers, whom Moore and two confederates had kidnapped and Moore had shot in the head. Moore was facing a possible death sentence. Thanks to the plea deal, he got 25 years and the possibility of parole.



Now, this is a sore spot for me because I don't think courts should even consider the appeal of any plea bargain unless the defendant was severely mistreated. But Moore appealed, and the Ninth seized Moore's plea bargain as proof he was represented by ineffective counsel.



The court's logic was deficient. As Criminal Justice Legal Foundation President Michael Rushford observed, Moore "got a good deal."



But the court was flouting federal law. Congress passed and President Bill Clinton signed the 1996 Antiterrorism and Effective Death Penalty Act precisely to prevent federal judges from issuing niggling orders that disregard court convictions and upend state appellate rulings.



In reversing Moore, Justice Anthony Kennedy had to remind the Ninth that its mandate is to follow the law.



Ditto the case of Joshua Richter, who was found guilty in a 1994 murder committed while he and an accomplice robbed a drug dealer. Once again, the Ninth found ineffective counsel.



In affirming the Richter conviction, Justice Kennedy wrote that the writ of habeas corpus stands as a safeguard against wrongful imprisonment. But the law is undermined "if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in" the Ninth's Richter decision.



Rushford found the unsigned "per-curiam" decision most damning because the Big Bench thought that the Ninth Circuit was so wrong that it "didn't even allow oral arguments."



Reinhardt and the majority had ordered the parole of Damon Cooke, who was convicted for attempted first-degree murder after he shot a friend in the head in 1991. The Ninth found that the parole board was wrong to consider the "cruel and callous" nature of the crime and wrong to ignore claims that Cooke was "an exemplary inmate."



The court also ordered the release of Elijah Clay, who was convicted of first-degree murder in 1978, because then-Gov. Gray Davis' refusal to heed a parole board recommendation for release was unreasonable.



Again, the Supremes ruled that federal judges have no dog in this fight: "There is no right under the federal Constitution to be conditionally released before the expiration of a valid sentence, and the states are under no duty to offer parole to prisoners."



(In a fourth reversal, this one written by Justice Sonya Sotomayor, the Supreme Court unanimously overturned a ruling involving a banking regulation.)



Conservative court watcher John Elwood believes that Justice Kennedy has taken on the task of scolding the Ninth because, "as a Ninth Circuit alumnus," the justice takes the court's battered reputation "a little bit more to heart."



And well he should. There are judges in the Ninth who see the bench as a portfolio to overturn any policy they don't like -- and jurisdiction be damned.



In 2009, a three-judge (including Reinhardt) Ninth Circuit panel ordered the release of 40,000 California inmates. Not only did the trio seem to think they had authority reserved for state lawmakers, but also, they issued the pronouncement that the state could release 1 in 4 inmates "without a significant adverse impact on public safety." As if saying so makes it so.



Elwood told me he tries to presume good faith and see the Ninth's decision as part of a simple "disagreement about how you apply the law." I try to do the same, but the Ninth has crossed the line so many times, there's no ink left in that well.



It's odd. When there is an opening on the Supreme Court, the Senate examines in detail whether nominees have the proper respect for past Supreme Court rulings. Sen. Dianne Feinstein is quite particular on that score. But in San Francisco, the Ninth Circuit doesn't seem to care what the U.S. Supreme Court writes. And it's OK.



Debra J. Saunders

Virginia Passes Intra-State Commerce Act To Rein In Federal Government

From The New American and Liberty Pulse:



Va. Passes Intrastate Commerce Act to Rein in Federal Govt
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Written by Bruce Walker

Friday, 28 January 2011 10:50

0The State of Virginia — home of George Washington, Patrick Henry, James Madison, Thomas Jefferson, and James Monroe — was once an indispensable part of the American Republic. Although the nation might have grown and flourished if Rhode Island or Georgia had not ratified the Constitution, there is little doubt that if Virginia had stayed separate from these United States — recalling that Virginia then was also West Virginia, Kentucky and much of the frontier — America might well have dissolved into several smaller nations.



The Old Dominion State has a rich heritage of defending the true purposes of the Constitution. When the Federalists passed the Alien and Sedition Acts in 1798, in clear violation of the First Amendment, it was not the Supreme Court or the ACLU which vindicated America's rights. The legislature of Virginia, following that of its sister state, Kentucky, passed a resolution rejecting the authority of Congress to make such laws. (See: "Kentucky and Virginia Resolutions.")



One of the few enumerated powers granted to Congress (i.e., the federal government — as only Congress has the power to legislate) was the power to pass laws regulating interstate commerce. Clause 3 or Section 8 of Article I delegates to Congress the power to “regulate Commerce with Foreign Nations, and among the several States, and with Indian Tribes.” This clause made a great deal of sense. Our nation could have no rational system of tariffs and trade with other nations if each state set its own independent rules, and interstate commerce could easily boil down to destructive squabbles and trade wars among the states.



The Interstate Commerce Clause, however, has been expanded far beyond its original purposes by Congress, beginning with a vigorous stretching during President Franklin Roosevelt's New Deal. Today, almost anything which “affects” interstate commerce is subject to federal regulation. Because buying apples from a local farmer’s fruit stand may in some hypothetical, microscopic fashion affect the sale of apples across state lines, this surreally broad interpretation of the Clause has extended federal power far beyond anything the Founding Fathers intended.



In an effort to rein in such overreach, on January 26 the Virginia House of Delegates passed the Intrastate Commerce Act, HB 1438, by a resounding vote of 65 to 33 — although it may run into rough weather in the Democrat-controlled upper chamber. What affirmation is Virginia seeking? The salient language of its new Act reads:



… all goods produced or manufactured within the Commonwealth [of Virginia], when such goods are held, retained, or maintained in the Commonwealth, shall not be subject to federal law, federal regulation, or the constitutional power of the United States to regulate interstate commerce.



The Virginia approach to resisting federal intrusion on the constitutional rights of states appears to be taking the predictable path of deferring final decision on the issue to the federal judiciary. Although considered by Jefferson the “least dangerous branch” of government, the U.S. Supreme Court of today has grown into the equivalent of a high priesthood which believes it can interpret the Constitution more precisely than other Americans. So now the question of the constitutionality of Virginia's new statute will wind its way through the federal court system. While some federal district court will eventually address the issue, and then the federal circuit court, there is no certainty that the U.S. Supreme Court will ever agree to hear the case — thus there is no guarantee that Virginia will ever receive the courtesy of either the validation or rejection of its statute.



But more than merely an affirmation of the inherent limitations of the Interstate Commerce Clause is involved in Virginia’s state legislative bill. Whatever that Clause might have meant when the Constitution was ratified, America's founding document was soon amended, precisely because states feared that constitutional restrictions on federal power were not clear enough. Among those ten familiar amendments in the Bill of Rights is the Tenth, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The Tenth Amendment Center provides robust intellectual support for this position.



Because the federal government today disregards the clear language of the Tenth Amendment, many states have moved beyond simply requesting that federal agencies respect their rights — into formal nullification of unconstitutional federal actions. Interestingly, the Commonwealth of Virginia itself instituted the practice of state nullification when it joined with Kentucky in 1798 in passing resolutions which nullified the Alien and Sedition Acts (federal laws which were clearly unconstitutional).



Since that time, state nullification has been used on several other occasions to rein in a tyrannical federal government. The Commonwealth of Massachusetts sought nullification of the federal Embargo Act of 1807, which limited the power of states to engage in commerce. The Massachusetts General Court (the state’s supreme court) rejected the right of the federal government to so limit the commerce of the states:



A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes.



The reduction of states to the status of mere instruments of the federal government is precisely what Virginia is attempting to thwart.



Idaho and other states have trod this path of nullification (in the case of these states, by legislative rather than state judicial action) to redress the states' grievances concerning the excesses of ObamaCare. Is such action allowed under the U.S. Constitution? That founding document of government was a compact which was ratified by states, not by popular vote and not by action of the existing national government under the Articles of Confederation. One of the assumed principles of law at the time the Constitution was adopted, and indeed before that, was that the traditions of English Common Law applied to government and to law as a reference of understanding and interpretation. Among those ideas in the English Common Law tradition is that parties to a contract have the right to redress grievances through a disinterested tribunal (and federal courts could hardly be considered impartial when the respective rights of the federal government and states are the issue), and that contracting parties have the inherent right to rescind all or part of the provisions of a contract when other parties have failed to perform according to the terms of the agreement.



Many of this country's early victories for liberty, even during the colonial period, were based upon reference to these rules of construction and principles of honorable contracts. Might the Commonwealth of Virginia join other states in seeking more than simple petition to accept the rights of the states? Might the Commonwealth exercise the powers of any contracting party to void actions outside the contract?



Contrary to what some may say, this is not settled law and it is not wild radicalism. Nullification of specific extra-constitutional actions is, in fact, sober, clear, proper — and constitutional.

University Of Minnesota To Launch Islamic Sharia Law Program

From Creeping Sharia:

Keith Ellison’s alma mater, UMinn, to launch Islamic sharia law program


Posted on January 26, 2011 by creeping

Sharia keeps on creepin’, creepin’, creepin’ into our country. And Keith Ellison continues to prove Allen West was spot on. Recall that Ellison spent Presidents Day weekend at the College of Sharia in Qatar a few years ago.



Islamic dawah.





Contacts: Cynthia Huff, Law School, huffx070@umn.edu, (612) 625-6691

Abdulwahid Qalinle, Islamic Law and Human Rights Program, shei0038@umn.edu, (612) 501-7384

Patty Mattern, University News Service, mattern@umn.edu, (612) 624-2801



MINNEAPOLIS / ST. PAUL (01/24/2011) —The University of Minnesota Law School’s Human Rights Center will launch its Islamic Law and Human Rights Program (IHRP) on Friday, Feb. 4. Opening ceremonies will be held from 3 to 4:40 p.m. in Room 25 of Mondale Hall, 229 19th Ave. S., Minneapolis.



The new program will focus on current issues and debates surrounding human rights and Islamic law and will encourage and facilitate new approaches to research and real-world application. It will engage students through teaching, publications, fellowships, internships, applied research, field work, conferences and other special events on current human rights and Islamic law issues.



IHRP will function as a think-tank for issues related to Islamic law, human rights, the rule of law and terrorism in the Muslim world. Through the Human Rights Center, students will have access to advice and resources involving diverse constituencies, including students and human rights workers in organizations in the United States and around the Middle East and the Muslim world.



The program will be housed in the Law School’s Human Rights Center on the plaza level of Mondale Hall and will be directed by Abdulwahid Qalinle, an adjunct associate professor of law at the Law School since 2004.



The event will include remarks by Qalinle; Law School Dean David Wippman; U.S. Representative Keith Ellison (’90); co-director of the Human Rights Center and Law School Professor David Weissbrodt; Judge LaJune Lange (’78); dean of the Institute for Global Citizenship at Macalester College and Professor Ahmed Ismail Samatar; Minneapolis Foundation Program Officer Zaineb Hassan; and Director of the African Development Center Hussein Samatar.



Associate Vice President and Dean of the Office of International Programs Meredith McQuaid (’91) will formally inaugurate the new program at the conclusion of the speakers’ remarks. Light refreshments will follow.



RSVP is requested by Feb. 1 to Vicky Nguyen at nguye386@umn.edu or (612) 626-0041.



via U of M Human Rights Center to launch Islamic Law and Human Rights Program : UMNews : University of Minnesota.



Internships and field work on Islamic sharia law – right here in the U.S.

North Carolina's House Challenges Federal Health Care Law

From Rebellion:

Jan 28, 2011 (16 hours ago)NC House Panel Challenges Federal Health Care Lawfrom feed/http://www.dixienet.org/rebellion/atom.xml by Old RebelThe people of the States effectively nullified DC's unconstitutional "RealID" Act, and are now challenging Obama's unconstitutional socialized medicine scheme. I'm proud to hear that North Carolina has joined the fight:






State Republican leaders are making good on campaign promises to fight the federal health care law.



Thursday a State House Judiciary Committee voted to block the federal government's health insurance mandate that takes effect in 2014.



Titled "An Act to Protect the Freedom to Choose Health Care and Health Insurance," the bill that would exempt North Carolinians from the law requiring most Americans to buy insurance.



"We're going to debate this bill and we're going to vote on this bill," Committee Chairman and Johnston County Republican Leo Daughtry said.



The bill would also require North Carolina Attorney General Roy Cooper to either join a lawsuit with more than 20 other states fighting against the insurance mandate or file a separate lawsuit for North Carolina.



Now that States' Rights have returned to the political arena, the only possible trajectory is the growth of local self-government and the collapse of the oversized Federal dinosaur. Know hope.

The Constitution Party's Response To The President's State Of The Union Address

From The Constitution Party:




The Constitution Party's

Response to the President’s State of the Union Address



By

Darrell Castle

Vice-Chairman

Constitution Party National Committee

Last night President Obama delivered his State of the Union address, as he is required by the Constitution to do once each year. Although he covered many different areas, he concentrated on only three: the domestic economy, which includes what he called job creation, domestic policy topics such as education and energy, and foreign policy, which includes military and defense issues.



The President told us that the nation is doing well economically and is on its way to recovery from recession. Evidence of this recovery, according to the President, is the “booming stock market.”



My response is that it is utterly ridiculous to say that we are well into recovery because the stock market is booming. Tell that news to the 43 million plus who have to use food stamps to eat. Tell that to the 15 million plus unemployed people. That number would be much higher than 15 million if the government kept honest numbers and counted the people who are no longer looking for jobs. Tell that to the millions of underemployed who used to have good jobs in manufacturing with benefits and who now work in service-related jobs with no benefits.



The President said that we can’t live in the past with regard to our economy. For example, it used to take about 1000 jobs to operate a steel mill, but now it only takes 100, so we must adjust to that reality and innovate. What he didn’t say is that any jobs in steel are being performed in Korea and other countries and no amount of innovation will change that.



What then is the answer to our economic problems? First, do no more harm with bailouts. Stop all bailouts and recover any money previously committed to bailouts that has not already been spent. Withdraw from all so-called free trade agreements such as NAFTA, CAFTA, WTO, and GATT which have been largely responsible for the destruction of America’s manufacturing base. Remove the regulations and restrictions that prevent businesses from doing business in America and from hiring the people they need to make the things that people want to buy.



Finally, the economy cannot recover until the debt and deficit are resolved through de-leveraging of debt and control of spending. Stop spending more than you take in. It is a simple concept that Americans understand but that apparently their politicians don’t. Once the debt and deficit are under control, the President should endeavor to drive a stake through the heart of the entire Federal Reserve system and return to a monetary system based on sound money principles. Stop the destruction of our currency immediately.



The President also told us that educationally we are doing well, but we can do better, so he launched a program called Race to the Top in all fifty states to replace No Child Left Behind. This is also total nonsense. The United States continues to lag behind other nations in math, science, and reading skills. Our system of education, controlled and paid for by the federal government, is a failure and should be scrapped and replaced with state and local control, with primary responsibility left to parents. There is no role for the federal government in education whatsoever.



The nation’s energy needs could be met largely by domestic production if we were to allow our own domestic sources of energy to be exploited by repeal of harmful laws that unnecessarily restrain production. Technology will now allow energy exploration and production with minimal damage to the environment. This would prevent the US government from exploring for oil in the Middle East through military force and help foster a more peaceful world.



Finally, the President talked about “shaping” a better world through strengthening NATO and rebuilding our relationship with Russia. He stated that 100,000 of our troops have come home from Iraq with their heads held high. That is also complete nonsense. It’s not his job to shape the world, it’s his job to protect and defend the Constitution and the American people. Many of those 100,000 troops didn’t come home but went to Afghanistan instead. Thousands of others did come home but in boxes or in rehab hospitals.



What then is the foreign policy answer? Issue an order to General Patraeus and the other commanders to execute an immediate withdrawal from Afghanistan, Pakistan, and Iraq. Then order a military withdrawal from the other 100 nations around the world where we have over 700 foreign bases. That would save many lives, much money, and would create far fewer enemies than we are creating now.



We simply must stop acting as if we own the world or as if we are responsible for it. That would not be isolationism but instead a lack of military domination. The US would trade with all nations who were willing to trade with us. Creditor nations would probably appreciate our new monetary policy whereby they were paid with real instead of counterfeit money.



If the President were to dedicate himself to the ideas proposed in this response to his speech, we would be well on our way to the most dynamic period in American history.



________________________________________________________________________________________________



The Constitution Party is the ONLY political party representing the viewpoint of the majority of the American people today.



The other parties, funded by and indebted to big money special interests and taxpayer's dollars, will never speak for you. The Constitution Party answers only to people like you, and it depends on people like you to keep it growing. If you want the Constitution Party voice to continue to be heard and to grow stronger across our nation, we need YOUR help...today!

Obama Believes American Exceptionalism Begins With Government

From Town Hall:


David Limbaugh

Obama Believes American Exceptionalism Begins With Government

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Sign-Up Obama's latest watchword, "investments," is not, as I originally assumed, simply a euphemism for government spending. It captures his entire economic philosophy -- a philosophy that is permanently engrained in the core of his being and disastrous for America's "future."



President Bill Clinton shrewdly used the word as a more palatable substitute for income tax rate increases, saying taxpayers needed to "invest" more of their hard-earned dollars in America. But Obama's use of the term was different in two important ways. First, for him, "investments" would apply to the spending side of the fiscal equation. He would ask our support in his plan to "invest" more government money in infrastructure and education.



Secondly, and more significantly, Obama used the term to candy-coat his fundamental lack of confidence in the private sector and free market, as well as his commitment to faith in government as the primary engine for economic growth.



For all the analysis of Obama's speech, I don't think nearly enough has been made of this theme, which was interwoven throughout it. For it is the key to understanding that regardless of any promises he might make to move to the center, he will not do so willingly. It is also critical to comprehending why, despite the marked failure of his economic policies, he is virtually incapable of voluntarily changing course.



Obama's critics often say that it's important to pay more attention to his actions than his words. Though there is much validity in that, it's also true that we must not overlook his words, for he is not always careful to disguise his heartfelt views.



In his pre-speech teasers, Obama telegraphed that he would be emphasizing job creation. Indeed, he said that he saved the nation from economic collapse through his (atrociously wasteful and wholly ineffective trillion-dollar) "stimulus" bill. He insisted that he has succeeded in reigniting the economy but that the matter of job creation is an entirely separate process that will follow through his next round of magic.



He didn't bother acknowledging that he's played this same tune many times before (saying he wasn't focused enough on jobs but now he is) or that he specifically promised from the outset that job growth would result from his stimulus. But he did tell us multiple times in this speech how he envisions job growth finally coming about.



Yes, he rolled out the blame-Bush card again, but he also underscored the limitations of the free market to produce economic growth and employment. His entire "Sputnik" meme was based on this wrongheaded notion.



When the Soviet Union lurched ahead of us in the space race, America's leaders launched a national effort to surpass the Soviets. For Obama, by analogy, the federal government has to be the prime mover in leading and catalyzing America's comeback in education and in economic growth. We cannot understand Obama without recognizing that he believes the private sector can't create or innovate without paternalistic direction and googobs of money from the wiser beings in Washington.



"We know what it takes to compete for the jobs and industries of our time," he said. "The first step ... is encouraging American innovation." Note that he didn't mean "encourage" in the sense of getting government off businesses' and people's backs. He means the federal government should proactively prod, direct and lead us into the promised land of economic growth.



He credited government for providing money for "basic research" and "cutting-edge scientists and inventors" throughout history, without which the hand of the free market would have been not only invisible but also impotent. As a result, he pledged from his command-control perch to "invest in biomedical research, information technology and especially clean energy technology" (that PC token can never be omitted) -- "an investment that will strengthen our security, protect our planet and create countless new jobs for our people." So far, they've been "countless" indeed. This is just one example. Read the transcript and you'll see that throughout he betrays his blind faith in the indispensability of government action to job growth.



It would be bad enough if Obama's ideas merely retarded their stated goal of restoring job growth. But they necessarily involve Keynesian prescriptions of throwing obscene and budget-busting amounts of federal money at this ephemeral solution. Even if Obama wanted to reduce the deficit and debt, his economic philosophy would compel him always to spend more and would prevent fiscal responsibility.



If you listened to the speech and came away believing Obama is receptive to moving to the center, then you didn't hear or understand him. For the GOP to make headway on restoring fiscal sanity to this nation, it must first understand him. Then it must oppose and reverse him.



David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert in law and politics and author of new book Crimes Against Liberty, the definitive chronicle of Barack Obama's devastating term in office so far.



©Creators Syndicate

Obama To Push Gun-control Measures

From The Washington Examiner and Alliance Defense Fund:


Obama to push gun-control measures

TAGS: Correspondentgun controlgunsJulie Masonmass shootingnraTucsonWashingtonWhite House

By: Julie Mason 01/27/11 8:05 PM

White House correspondent

.

President Barack Obama delivers remarks at Orion Energy Systems, Inc. January 26, 2011 in Manitowoc, Wisconsin. (Photo by Brian Kersey-Pool/Getty Images)President Obama's decision to push new gun-control measures in the wake of the mass shootings in Tucson, Ariz., is out of character and faces dubious prospects with a new Republican majority in the House.

Though he omitted any reference to gun control in his State of the Union address, three of Obama's key advisers assured reporters the issue is on the president's to-do list.



"He's going to address this," senior adviser David Plouffe told NBC News. "It's a very important issue and I know there's going to be a lot of debate on the hill."



Added press secretary Robert Gibbs, "I wouldn't rule out that at some point the president talks about the issues surrounding gun violence. I don't have a timetable or, obviously, what he would say."



Obama's style is to raise contentious issues then defer follow-through, as he has done with immigration reform, or forge compromise, as he did with his Afghanistan war strategy, health care and more.



Whether the prospective push for new gun-control laws is a response to Tucson or reaction to criticism of the State of the Union is uncertain.



Obama senior adviser David Axelrod told political bloggers this week that the speech was written to focus more narrowly on the economy. He promised Obama will "engage" on the gun-control issue.



But in any case, it may be an engagement without the ring: Republican control of the House and Democrats' withered majority in the Senate make gun control a tough sell for at least the next two years.



"The anti-gun people I am sure would frame it as losing more rights," said Susan MacManus, a political scientist at the University of South Florida.



A safer political bet for Obama is to frame the debate in terms of the danger to law enforcement officers from a proliferation of guns, and to restrict any new lawmaking effort to assault weapons, she said.



A recent poll for ABC News by Langer Research Associates found no shift or surge in support for new gun laws following the Tucson mass shooting earlier this month.



The poll found 52 percent of Americans favor tougher-gun control laws, down from 61 percent in 2007. Forty-five percent oppose stricter gun laws.



Still, there is room to legislate. About 57 percent support banning the type of high-capacity ammunition clips used in the Tucson massacre, and 83 percent support a registry to keep guns from the mentally ill or drug abusers, according to the poll.



Many Republicans and gun enthusiasts had worried that Obama would prove a tough adversary on gun control. But in 2009, he signed two bills that allowed concealed weapons in national parks and permitted passengers with guns on most Amtrak trains.



The administration last year looked at reinstating a ban on assault weapons, but never took action.



The National Rifle Association, which lobbied for the Amtrak and parks laws, could not be reached for comment. The Brady Campaign to Prevent Gun Violence, which has been critical of Obama's lack of leadership on the issue, did not respond to a request for comment.



jmason@washingtonexaminer.com







Read more at the Washington Examiner: http://washingtonexaminer.com/politics/white-house/2011/01/obama-push-gun-control-measures#ixzz1CNQjT06C

Obama Erases Christianity From The American Founding

From Floyd Reports:

Obama Erases Christianity from the American Founding




Posted on January 28, 2011 by Ben Johnson





by Ben Johnson







In the State of the Union Address, Obama said: “We are the first nation to be founded for the sake of an idea – the idea that each of us deserves the chance to shape our own destiny. That is why centuries of pioneers and immigrants have risked everything to come here.” In Obama’s telling, this is the reason “why our students don’t just memorize equations, but answer questions like ‘What do you think of that idea? What would you change about the world? What do you want to be when you grow up?’”



That is perhaps the most underwhelming description of freedom ever uttered by a president.



It is rendered less impressive by the fact that later in his speech, Obama called on more Americans to study equations and stop telling him what they think of his ideas. This lack of vision manifested throughout the SOTU is one of the reasons so many Americans considered this address drab and uninspiring.



The president’s presentation of America’s founding lacks its most important cause: Christianity.



The stout souls who migrated across the Atlantic in a wooden ship in 1620 came from England “In the name of God, Amen” to plant a colony on the Atlantic’s shore “for the Glory of God and advancement of the Christian Faith.” This fact, now suppressed, would have been part of the standard curriculum if Obama had received his primary education in the United States. The Mayflower Compact embodied the intentions of those who founded our country: to worship God as they saw fit, something they could not do under the King. In the annals of history, the Pilgrims’ voyage represented complete dedication to the Lord Jesus Christ and a sacrificial commitment to live out their faith. For Obama, it was an exercise in self-realization.



This omission would not be noteworthy if it did not build upon a long pattern of Obama’s cutting God out of the Declaration of Independence and minimizing the role of the Christian faith in American life.



Although Christianity had no place in Obama’s State of the Union, he took pains to emphasize that “Muslims are a part of our American family.” This ties in with his long history of favoring Islamic causes at home and abroad, while downplaying or actively opposing key tenets of Christianity. Although three-quarters of the American people call themselves Christians, Obama has insisted, “Whatever we once were, we are no longer a Christian nation.” Yet he said elsewhere America is “one of the largest Muslim nations in the world.” This simultaneous rejection of Christian values and favored status for Islam is one of the major reasons a growing number of Americans cannot believe Obama is a Christian.



Ironically, a passage in the State of the Union showed parents a way to assure the Christian faith’s role in America’s founding is taught to future generations. Obama gave unsolicited advice “to every young person listening tonight who’s contemplating their career choice: If you want to make a difference in the life of our nation; if you want to make a difference in the life of a child – become a teacher,” he said. “Your country needs you.”



I will add better advice yet: become a homeschooler.

Ruling On State Secrets Doctrine: Right Results, But Flawed Reasoning

From The Washington Legal Foundation and The Heritage Foundation:

Ruling On State Secrets Doctrine: Right Result But Flawed Reasoning


Topic: National Security Policy and Law



By Thomas R. McCarthy, Of Counsel with the law firm Wiley Rein LLP.

Legal Backgrounder, January 14, 2011, 4 pages Download a PDF of the Publication





Related Publications:

El-Masri v. USA: Constitutional Foundation Of State Secrets Doctrine Upheld

Legal Backgrounder, August 10, 2007

Full Publication Content:

WLF Legal Backgrounder



Ruling On State Secrets Doctrine: Right Result But Flawed Reasoning

By Thomas R. McCarthy

January 14, 2011 (Vol. 26 No. 1)



On September 8, 2010, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, affirmed the dismissal of the complaint of five foreign nationals alleging that Jeppesen Dataplan, Inc. ("Jeppesen") had violated the Alien Tort Statute, 28 U.S.C. sec. 1350, by assisting in their forced disappearance and torture by the CIA. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc). In so doing, the court overturned a panel decision finding that the state secrets doctrine did not warrant immediate dismissal of the case. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943 (9th Cir. 2009). An analysis of the case reveals that the Ninth Circuit en banc panel reached the correct result--dismissal of the case. This is a step in the right direction given the Ninth Circuit's inconsistent track record on state secrets issues. However, the court's failure to comprehend the constitutional magnitude of the state secrets doctrine led it to articulate an unnecessarily garbled view of the doctrine.



The Background and Alleged Facts of Mohamed v. Jeppesen Dataplan.



Plaintiffs alleged that they were apprehended, detained, and tortured as part of the CIA's extraordinary rendition program. While individual details differed, each plaintiff alleged that he was detained in a foreign country, transferred to American custody, and flown to another foreign country for interrogation. According to plaintiffs, Jeppesen "played an integral role" in their abductions and detentions by providing "flight planning and logistical support services to the aircraft and crew" used to transport them for interrogation.




In response to the complaint, the United States intervened and sought dismissal under the state secrets doctrine. Then-Director of the CIA, General Michael Hayden, filed two declarations explaining that state secrets were central to the complaint's allegations and that further litigation would result in disclosures harmful to national security.1 Based on these declarations, the district court dismissed the case and entered judgment in favor of Jeppesen, finding that the very subject matter of the suit was a state secret. Mohamed v. Jeppesen Dataplan, Inc., 539 F. Supp. 2d 1128, 1136 (N.D. Cal. 2008). On appeal, a three-judge panel of the Ninth Circuit reversed and remanded. The Ninth Circuit then took the case en banc.



The Majority Opinion.



Judge Fisher's 6-5 opinion began by explaining that there are two applications of the state secrets doctrine. First, the "Totten bar completely bars adjudication of claims premised on state secrets." Id. (citing Totten v. United States). Second, the "Reynolds privilege" is an evidentiary privilege that "excludes privileged evidence from the case and may result in dismissal of the claims." Id. (citing United States v. Reynolds). Totten, the majority explained, is based upon the "general principle [] that public policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Id.. As the Supreme Court further explained in Reynolds, "‘where the very subject matter of the action' is ‘a matter of state secret,' an action may be ‘dismissed on the pleadings without ever reaching the question of evidence' because it is ‘so obvious that the action should never prevail over the privilege.'" Id. at 1077-78 (quoting Reynolds, 345 U.S. at 11 n.26). Thus the Totten bar "is ‘designed not merely to defeat the asserted claims, but to preclude judicial inquiry' entirely." Id. at 1078 (quoting Tenet v. Doe, 544 U.S. 1, 7 n.4).



According to the Ninth Circuit, the Supreme Court has only applied the Totten bar in Totten itself and in Weinberger v. Catholic Action of Hawaii/Peace Education Project. In that case, the plaintiffs sued to compel the Navy to prepare an environmental impact statement for a military facility where the Navy allegedly planned to store nuclear weapons. 454 U.S. 139, 146-47 (1981). The Supreme Court held that the allegations were "beyond judicial scrutiny" because, "[d]ue to national security reasons, . . . the Navy can neither admit nor deny that it proposes to store nuclear weapons" at the facility. Id.



In describing the Totten bar's scope, the Ninth Circuit rejected two attempts by plaintiffs to narrow its application. First, the court found that the Totten bar is not limited to cases premised on a plaintiff's espionage relationship with the government, noting that Weinberger involved nuclear secrets as opposed to a covert relationship. The court also rejected the plaintiffs' related contention that the Totten bar applies only if the plaintiff is a party to a secret agreement, again citing Weinberger and explaining that "the purpose of the bar . . . is to prevent the revelation of state secrets harmful to national security, a concern no less pressing when the plaintiffs are strangers to the espionage agreement that their litigation threatens to reveal." Mohamed, 614 F.3d at 1078-79.



The court in Mohamed next described the scope of the Reynolds privilege. It explained that "[a] successful assertion of privilege under Reynolds will remove the privileged evidence from the litigation," and that "[u]nlike the Totten bar, a valid claim of privilege under Reynolds does not automatically require dismissal of the case." Nevertheless, the court noted that "[i]n some instances . . . the assertion of privilege will require dismissal because it will become apparent during the Reynolds analysis that the case cannot proceed without privileged evidence, or that litigating the case to a judgment on the merits would present an unacceptable risk of disclosing state secrets." Id. at 1079.

The Ninth Circuit explained that there are three steps to analyzing a claim under the Reynolds privilege. First, the head of the agency in charge of the matter must make a formal claim of privilege. The Government can assert the claim "prospectively, even at the pleading stage, rather than waiting for an evidentiary dispute to arise during discovery or trial." Second, once the privilege is properly invoked, the court must make an independent evaluation of whether the privilege claim is proper and sustain the claim when "there is a reasonable danger that compulsion of the evidence will expose . . . matters which, in the interest of national security, should not be divulged." Id. at 1080-81.




Finally, once the claim of privilege is sustained, the court must determine whether the case can proceed. Normally, the Ninth Circuit explained, the privileged information is simply removed and the case proceeds. However, in three situations, "the Reynolds privilege converges with the Totten bar" and requires dismissal: (1) if the plaintiff cannot prove the prima facie elements of her claim with nonprivileged evidence; (2) if the privilege deprives the defendant of information that would provide a valid defense; and (3) if it is "impossible to proceed with the litigation because--privileged evidence being inseparable from non-privileged information that will be necessary to the claims or defenses--litigating the case to judgment on the merits would present an unacceptable risk of disclosing state secrets." Id. at 1082-83.



Based on these principles, the Ninth Circuit dismissed the case pursuant to Reynolds. It did not reject the applicability of Totten, but it nevertheless declined to adopt the district court's decision to invoke the bar.2 Applying Reynolds, the court found, after reviewing the Hayden declarations, that "at least some of the matters [the government] seeks to protect from disclosure in this litigation are valid state secrets." The court then found that immediate dismissal was necessary because--even assuming that plaintiffs could establish a prima facie case absent the privileged evidence and that Jeppesen's defenses did not rely on that evidence--"there is no feasible way to litigate Jeppesen's alleged liability without creating an unjustifiable risk of divulging state secrets. . . . [T]he facts underlying plaintiffs' claims are so infused with [state] secrets, any plausible effort by Jeppesen to defend against them would create an unjustifiable risk of revealing state secrets . . . ." Id. at 1084-88.3



The Right Answer, But a Flawed Articulation of the State Secrets Doctrine.



As a general matter, the Ninth Circuit en banc panel correctly concluded that plaintiffs' complaint should be dismissed because "the claims and defenses are so infused with state secrets that the risk of disclosing them is both apparent and inevitable." This decision is noteworthy, not only because it corrects the contrary decision of the three-judge panel that previously heard the case, see 579 F.3d 943 (9th Cir. 2009), but also because the Ninth Circuit has failed to give state secrets their proper protection in other recent cases. See, e.g., Al-Haramain Islamic Found., Inc. v. Bush, 507 F.3d 1190 (9th Cir. 2007) (holding that the subject matter of litigation challenging the Terrorist Surveillance Program was not a state secret); Doe v. Tenet, 329 F.3d 1135 (9th Cir. 2003) (holding that Totten did not require dismissal of the claims based upon an alleged covert espionage agreement between two purported spies and the CIA), rev'd, 544 U.S. 1 (2005).



Although the Ninth Circuit reached the correct result here, it failed to fully comprehend the nature and contours of the state secrets doctrine. Most notably, the court erred in failing to understand the doctrine's constitutional roots. The court repeatedly referred to the doctrine as a "judge-made doctrine," and a "judicial construct," as if it were merely a creature of common law. But the state secrets doctrine is in fact a manifestation of the Constitution's separation of powers, and more specifically, the Executive's Article II power over the obtaining and control of intelligence. Indeed, the Supreme Court's decisions in United States v. Nixon, 418 U.S. 683 (1974), and Department of Navy v. Egan, 484 U.S. 518 (1988), foreclose the theory that the state secrets doctrine is merely a judicial construct.4



In Nixon, the Court explained that the state secrets privilege provides exceptionally strong protection because it concerns "areas of Art. II duties [in which] the courts have traditionally shown the utmost deference to Presidential responsibilities." 418 U.S. at 710. Moreover, the Nixon Court emphasized that, to the extent an executive claim of privilege "relates to the effective discharge of a President's powers, it is constitutionally based." Id. at 711. The Egan Court even more specifically explained that the Executive power to "classify and control" intelligence is vested in the President by Article II of the Constitution: "The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States,'" and "[t]he authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief." 484 U.S. at 527 (citing U.S. Const., art. II, sec. 2). Importantly, the Court emphasized that "[h]is authority to classify and control access to information bearing on national security . . . flows primarily from this constitutional investment of power in the President and exists quite apart from any congressional grant." Id.



That the state secrets doctrine reflects the "constitutional investment of power in the President," rather than a judicial construct, is not simply an academic matter. Viewed properly, the doctrine--no matter its application (per Totten or Reynolds)--reflects the Constitution's defining principle: the separation of powers. When invoked by the Executive, the doctrine results in removal of the state secrets from the litigation. Whether the case continues to proceed or not depends solely on the centrality of the state secrets to the claims asserted. See, e.g., El-Masri, 479 F.3d at 301 ("If a proceeding involving state secrets can be fairly litigated without resort to the privileged information, it may continue. But if the circumstances make clear that sensitive military secrets will be so central to the subject matter of the litigation that any attempt to proceed will threaten disclosure of the privileged matters, dismissal is the proper remedy."); see also Tenet, 544 U.S. at 9. In other words, Totten and Reynolds differ (if at all) only in result.



Understanding the constitutional footing on which the doctrine rests simplifies the state secrets analysis. For example, once it is clear that the doctrine has properly been raised by the government, the state secrets are to be removed from the case, and the sole question for the court is the centrality of the state secrets to the litigation. Extended debate over whether Totten or Reynolds applies, e.g., Mohamed, 614 F.3d at 1084 ("We do not find it quite so clear that the very subject matter of this case is a state secret. Nonetheless, having conducted our own detailed analysis, we conclude that the district court reached the correct result because dismissal is warranted even under Reynolds."); id. at 1093 ("Outside of the narrow Totten context, the state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret."), is beside the point.5



And because Reynolds cannot properly be viewed as a mere evidentiary privilege,6 a plaintiff's purported "need" for disclosure of the state secrets is immaterial. Accordingly, a reviewing court should not dwell on the plaintiff's assertions of need. See Reynolds, 345 U.S. at 11 ("[E]ven the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that military secrets are at stake."); compare Mohamed, 614 F.3d at 1093 ("[W]e have tried our best to evaluate the competing claims of plaintiffs and the government."). Nor should the "harshness" of result, id. at 1084--if the doctrine forecloses a plaintiff's claims--bear in the analysis. As the Ninth Circuit put it in a previous case, "the results are harsh in either direction," and "the state secrets doctrine finds that the greater public good--ultimately the less harsh remedy--to be dismissal." Kasza v. Browner, 133 F.3d 1159, 1167 (9th Cir. 1998). Last, the concern that the doctrine's application may allow purported Executive abuses to go unchecked is not a reason to distort the doctrine. The potential for abuse is a by-product of our constitutional design. Morrison v. Olson, 487 U.S. 654, 710 (1988) ("A system of separate and coordinate powers necessarily involves an acceptance of exclusive power that can theoretically be abused.") (Scalia, J., dissenting). But "[w]hile the separation of powers may prevent us from righting every wrong, it does so in order to ensure that we do not lose liberty." Id.



Conclusion.



The Ninth Circuit en banc panel properly dismissed the plaintiffs' complaint in Mohamed v. Jeppesen Dataplan because of the centrality of the state secrets to the case. Given the Ninth Circuit's recent failures with regard to state secrets, Mohamed is a step in the right direction. However, the court's failure to understand the doctrine's constitutional foundation unnecessarily complicates the doctrine and may leave the government (and thus the citizenry) with less than full protection of state secrets in future Ninth Circuit cases.



Thomas R. McCarthy is Of Counsel with Wiley Rein LLP. He represented the Foundation for the Defense of Democracies as an amicus curiae in support of Jeppesen Dataplan in Mohamed v. Jeppesen Dataplan.



Notes:



1. The government advised the court that General Hayden's declarations were consistent with Attorney General Holder's revised guidelines for invoking the state secrets doctrine. See Mohamed, 614 F.3d at 1077.

2. Judge Bea issued a short concurrence in which he argued that the case should be dismissed pursuant to Totten.

3. In a dissent, Judge Hawkins argued that the Totten bar is inapplicable, reasoning that "Totten's logic simply cannot be stretched to encompass the claims here, as they are brought by third-party plaintiffs against non-government defendant actors for their involvement in tortious activities." Id. at 1097. With respect to Reynolds, the dissent argued that it is improper to apply an evidentiary privilege at the pleadings stage to dismiss entire allegations. Id. at 1101.

4. Although some perceive Reynolds' characterization of the doctrine as a "privilege . . . well established in the law of evidence" as implicitly rejecting the doctrine's constitutional roots, the Reynolds Court declined to consider the issue of whether the Executive branch's authority to preserve state secrets was rooted in the Constitution. See Reynolds, 345 U.S. at 6 & n.9.

5. Interestingly, under the (incorrect) view that Totten and Reynolds are in fact wholly distinct branches of the state secrets doctrine, the Ninth Circuit actually broadens Reynolds by dismissing the plaintiffs' claims in a manner akin to Totten.

6. Unlike a mere evidentiary privilege, which might be subject to a balancing test or a necessity exception, the doctrine operates as an absolute rule: "When . . . the occasion for the privilege is appropriate, . . . the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers." Reynolds, 345 U.S. at 10.





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