|To: Dale Baker who wrote (20764)||2/17/2011 2:47:53 AM|
A Florida judge distorted the law in striking down healthcare reform.
By Akhil Reed Amar
February 6, 2011
Earlier this week, after grading student papers from my Yale Law School class on constitutional law, I began reading federal District Judge Roger Vinson's recent opinion declaring "Obamacare" unconstitutional. One thing was immediately clear: My students understand the Constitution better than the judge.
I strive to be apolitical in evaluating students and judges alike. Over the years, many of my favorite students have been proud conservatives, while others have been flaming liberals. The Constitution belongs to neither party.
As every first-year law student learns, lower court judges must heed Supreme Court precedents. The central issue in the Obamacare case is how much power the Constitution gives Congress, and the landmark Supreme Court opinion on this topic is the 1819 classic, McCulloch vs. Maryland.
In McCulloch, when states' rights attorneys claimed that Congress lacked authority to create a federal bank, Chief Justice John Marshall famously countered that the Constitution gives Congress implied as well as express powers. Marshall said that unelected judges should generally defer to elected members of Congress so long as a law plausibly falls within Congress' basic mission. Though the words "federal bank" nowhere appear in the Constitution's text, Marshall explained that Congress nevertheless had the power to create such a bank to facilitate national security and interstate commerce. Other words not in the Constitution include "air force," "NASA," "Social Security," "Peace Corps" and "paper money," but all these things are constitutional under the logic of McCulloch. Obamacare is no different.
In 34 years as chief justice, Marshall never struck down an act of Congress as beyond the scope of federal power. The modern Supreme Court has followed Marshall's lead. Since 1937, only two relevant cases — U.S. vs. Lopez in 1995 and U.S. vs. Morrison in 2000 — have held that federal laws transgressed the limited powers conferred on Congress by the framers.
Neither of the laws at issue in these cases plausibly fell within the Constitution's grant of congressional power to regulate "commerce among the several states" — a phrase that includes all interstate transactions, such as a national market in goods or services or a situation in which people, pollution, water or wildlife cross state lines.
By contrast, Obamacare regulates a healthcare industry that obviously spans state lines, involving billions of dollars and millions of patients flowing from state to state. When uninsured Connecticut residents fall sick on holiday in California and get free emergency room services, California taxpayers, California hospitals and California insurance policyholders foot the bill. This is an interstate issue, and Congress has power to regulate it.
Even were it conceded that a particular piece of Obamacare regulates a wholly intrastate matter, that piece is OK so long as it is a cog within a truly interstate regulatory regime. In 2005, the court allowed Congress to criminalize private possession of homegrown marijuana plants because, even if these plants did not themselves cross state lines, a blanket prohibition was part of a legal dragnet regulating a genuinely interstate black market in drugs.
There is nothing improper in the means that Obamacare deploys. Laws may properly regulate both actions and inactions, and in any event, Obamacare does not regulate pure inaction. It regulates freeloading. Breathing is an action, and so is going to an emergency room on taxpayers' nickel when you have trouble breathing.
Nor is there anything improper about requiring people to buy or obtain a private product. In 1792, George Washington signed into law a militia act that did just that, obliging Americans to equip themselves with muskets, bayonets, cartridges, the works.
Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers. Wrong again. A basic purpose of the founders was to create sweeping federal tax power, power that was emphatically reinforced by the 1913 Income Tax Amendment.
If Congress can tax me, and can use my tax dollars to buy a health insurance policy for me, why can't it tell me to get a policy myself (or pay extra taxes)? Vinson offers no cogent answer to this basic logical point.
He also mangles American history and constitutional structure. In a clumsy wave to today's "tea party" groups, he rhetorically asks whether Americans who fought a tax on imported tea in the 1770s would have authorized Congress in the 1780s to mandate tea purchases. Huh?
Surely Congress was authorized to do the very thing that Parliament could not — tax imported tea. Congress could do so precisely because Congress, unlike Parliament (and unlike Vinson) is elected by voters who can vote the bums out if they do not like the taxes. The rallying cry of the American Revolution was not "No Taxation!" but "No Taxation Without Representation!" Congress represents voters, so it can tax voters, or impose mandates on voters, regarding tea or militia service — or insurance policies.
In the interest of full disclosure, I should note that acting Solicitor Gen. Neal Katyal, who will defend Obamacare in the appellate courts, is a former student of mine. But my views today have nothing to do with him, and everything to do with constitutional first principles.
Obamacare's opponents are free to vote for politicians who will repeal it. They should not use seats on lower courts to distort the Constitution, disregard applicable precedents and disrespect a duly elected Congress, which gave Americans in early 2010 exactly what the winning party platform promised in November 2008.
In 1857, another judge named Roger distorted the Constitution, disregarded precedent, disrespected Congress and proclaimed that the basic platform of one of America's two major political parties was unconstitutional. The case was Dred Scott vs. Sanford, involving a slave who sued for his freedom because he had lived with his master in places where Congress had banned slavery. In an opinion by Chief Justice Roger Taney, the court not only ruled against Scott, saying that even free blacks were not citizens and therefore had no right to sue; it also declared the Missouri Compromise, which had outlawed slavery in Northern territories, unconstitutional.
History has not been kind to that judge. Roger Vinson, meet Roger Taney.
Akhil Reed Amar is a professor at Yale Law School and the author of "America's Constitution: A Biography."
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|To: Dale Baker who wrote (20764)||3/3/2011 2:15:22 PM|
|Clarence Thomas Faces Call For His Disbarment in Missouri Supreme Court|
U.S. Supreme Court Justice Clarence Thomas should be disbarred for his failure to truthfully complete financial-disclosure forms over a 20-year period, according to a complaint filed by the watchdog group Protect Our Elections (POE).
In a bar complaint filed with the Missouri Supreme Court, POE attorney Kevin Zeese says Thomas committed multiple violations of the Missouri Rules of Professional Conduct. (See full complaint below.) Zeese asks the Office of Chief Disciplinary Counsel to take immediate action against Thomas, including disbarment.
Thomas became a member of the Missouri Bar in 1974, and former U.S. Sen. John Danforth (R-MO) was a primary supporter during Thomas' confirmation hearings in 1991. How is the justice responding to recent allegations against him? He struck a defiant tone in a speech over the weekend in Virginia.
Delivering the keynote speech at an annual symposium for conservative law students, Thomas spoke in vague, but ominous, terms about the direction of the country and urged his listeners to “redouble your efforts to learn about our country so that you’re in a position to defend it.”
He also lashed out at his critics, without naming them, asserting they “seem bent on undermining” the High Court as an institution. Such criticism, Thomas warned, could erode the ability of American citizens to fend off threats to their way of life.
What threats is Thomas talking about? He did not make it clear. But the justice apparently feels threatened by recent reports that he repeatedly failed to disclose his wife's non-investment income. The story, broken by Common Cause, should lead to serious consequences, Zeese says. From the bar complaint:
Clarence Thomas breached his legal duty and violated the Rules of Professional Conduct by knowingly and willfully failing for 20 years to state truthfully on required AO 10 Financial Disclosure Forms that his wife Virginia earned non-investment income. Clarence Thomas further labored under a financial conflict of interest by failing to disclose $100,000 in support for his nomination by the Citizens United Foundation when he sat in judgment of a case involving Citizens United. Finally, he made rulings that his wife benefited from financially and professionally, and by extension, that benefited him. In short, this unethical and criminal conduct violates the Rules of Professional Conduct, and undermines the rule of law, respect for the law and confidence in the law.
Thomas has sought to resolve the issue by filing amended financial-disclosure forms. But Zeese says that should not be the end of it:
Justice Thomas acted knowingly and willfully. First, judges are presumed to know the law and at least four of Justice Thomas’ colleagues on the Supreme Court--Justices Breyer, Ginsberg, Kennedy and Roberts--knew well enough to disclose their spousal income during the same time frame that Justice Thomas did not.
Second, according to the Department of Justice Handbook on Prosecutions, a defendant's signature on a document is strong evidence of willfulness and knowledge. See United States v. Tucker, 133 F.3d 1208, 1218 n. 11 (9th Cir. 1998) (noting that signature proved knowledge of contents of return); United States v. Mohney, 949 F.2d 1397, 1407 (6th Cir. 1991) (holding that signature is prima facie evidence that the signer knows the contents of the return); United States v. Drape, 668 F.2d 22, 26 (1st Cir. 1982) (finding that defendant's signature is sufficient to establish knowledge once it has been shown that the return was false).
Perhaps most alarming is Thomas' failure to disclose conflicts that might have affected his decision-making:
It appears that Justice Thomas had a reason for not disclosing that his wife was working for a conservative think tank and a conservative 501c(4) group; he did not want litigants who had cases pending before the Supreme Court to have information that could be used to disqualify him from hearing those cases, and he wanted his family to benefit financially from his decisions.
Does the law apply to all Americans? That question is at the heart of the POE complaint:
Hundreds of Americans have been federally prosecuted since 1989 for various types of false statements, many involving checking or not checking a box on a form. Many of those prosecutions involved a single form, and most defendants were not given the opportunity to amend their forms before being prosecuted. Many were found guilty, fined and sent to prison. And some even appealed their cases to the Supreme Court where Justice Thomas sat in judgment of them, upholding their sentences.
POE makes a compelling argument that Clarence Thomas has no business sitting on the U.S. Supreme Court:
A lawyer who commits a crime is subject to disbarment. A lawyer who fails to disclose important financial information as require by law is subject to disbarment. A lawyer who makes rulings on cases that will benefit himself and his wife is subject to disbarment. A Judge who commits 20 crimes by falsifying 20 disclosure forms in order to enrich himself and his family, as did Justice Thomas, is subject to disbarment. A lawyer who withholds information about a supporter when ruling on a case involving that support is subject to disbarment.
Justice Thomas violated the Rules of Professional Conduct: he committed crimes that carry serious jail time if prosecuted, he acted in a untrustworthy manner, his conduct involved dishonesty, deceit and misrepresentation, and he engaged in conduct that seriously interfered with the administration of justice. Therefore, he must be disciplined.
Below is the full bar complaint against Clarence Thomas:
Clarence Thomas Bar Complaint
By RogerShuler | Sourced from Daily Kos
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|To: tsigprofit who wrote (20769)||9/14/2012 1:21:38 AM|
|Deal with it :|
Via The Independent:
The killings of the US ambassador to Libya and three of his staff were likely to have been the result of a serious and continuing security breach, The Independent can reveal.
American officials believe the attack was planned, but Chris Stevens had been back in the country only a short while and the details of his visit to Benghazi, where he and his staff died, were meant to be confidential.
The US administration is now facing a crisis in Libya. Sensitive documents have gone missing from the consulate in Benghazi and the supposedly secret location of the “safe house” in the city, where the staff had retreated, came under sustained mortar attack. Other such refuges across the country are no longer deemed “safe”.
Some of the missing papers from the consulate are said to list names of Libyans who are working with Americans, putting them potentially at risk from extremist groups, while some of the other documents are said to relate to oil contracts.
According to senior diplomatic sources, the US State Department had credible information 48 hours before mobs charged the consulate in Benghazi, and the embassy in Cairo, that American missions may be targeted, but no warnings were given for diplomats to go on high alert and “lockdown”, under which movement is severely restricted. [...]
According to security sources the consulate had been given a “health check” in preparation for any violence connected to the 9/11 anniversary. In the event, the perimeter was breached within 15 minutes of an angry crowd starting to attack it at around 10pm on Tuesday night. There was, according to witnesses, little defence put up by the 30 or more local guards meant to protect the staff. Ali Fetori, a 59-year-old accountant who lives near by, said: “The security people just all ran away and the people in charge were the young men with guns and bombs.”
Wissam Buhmeid, the commander of the Tripoli government-sanctioned Libya’s Shield Brigade, effectively a police force for Benghazi, maintained that it was anger over the Mohamed video which made the guards abandon their post. “There were definitely people from the security forces who let the attack happen because they were themselves offended by the film; they would absolutely put their loyalty to the Prophet over the consulate. The deaths are all nothing compared to insulting the Prophet.”
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