Saturday, November 19, 2011
Friday, November 18, 2011
California Supreme Court Says Prop 8 Can Be Defended In Court By Supporters After Government Refused, Ninth Circuit Now Free To Decide Case
UCLA Law Professor Eugene Volokh writes that "The California Supreme Court has just decided that the official proponents of an enacted initiative — the group that got it onto the ballot — may, under California law, assert the state’s interest in defending the initiative when state officials refuse to do so. This means, given the Ninth Circuit earlier analysis of the matter, that the proponents of Prop. 8 have the legally required 'standing' to appeal the trial court’s decision holding Prop. 8 unconstitutional. And that in turn means that the Ninth Circuit (and likely eventually the Supreme Court) can consider whether Prop. 8 is indeed constitutional." Tweet
Will The Necessary And Proper Clause Save Obamacare? Not If The Court Follows McCulloch v. Maryland
Dave Kopel and Gary Lawson explain why, in an article published last week by Yale Law Journal Online. Dave Kopel provides a summary:
TweetIn short, the Necessary and Proper Clause expressed the well-known agency law doctrine of principals and incidents. That is, the grant of power to an agent (and the federal government was an agent of the people, to exercise certain delegated powers) was considered to include incidental powers. (Unless the parties specified to the contrary.) To be an incidental power, a power had to be subsidiary to, inferior to, and “less worthy” (in the language of the time) than the principal power. So if A delegates to B the power to manage A’s farm for five years, B could lease part of the farm to C for a few years, but B could not sell the farm. The power to sell the farm is not an “incident” of the power to manage a farm. It is a power that is as great as the power to manage the farm.
Thus, the first half of Chief Justice Marshall’s opinion in McCulloch wrestles with the question of whether the power to establish a corporation (here, the 2d Bank of the United States) can be considered an “incident” of the enumerated congressional powers. This portion of the opinion is often expurgated from constitutional law textbooks. But not from Randy Barnett’s Constitutional Law: Cases in Context.
So is the power to order people to engage in commerce with certain corporations “incidental” to the enumerated power “to regulate Commerce . . . among the several States”? Lawson and I argue that the power to compel intrastate commerce is of at least equal “dignity” as the power to regulate voluntary interstate commerce. Thus, the individual mandate cannot be justified a “necessary and proper” to the exercise of the power to regulate interstate commerce.
Further, the word “proper” affirms the agency/fiduciary law rule that an agent must act reasonably, and when he is acting on behalf of several principals must treat the principals equally. So in Rooke’s Case, it was unreasonable that the entire costs of a water control project were imposed on a single landowner, when other landowners also benefited from the project. In Leader v. Moxon (1773) paving commissioners were unreasonable when they ordered a road repair that effectively buried the doors and windows of the plaintiff’s house, making plaintiff bear the entire burden of a project that was supposedly for the benefit of him and others. In the Founding era, government creation of a monopoly was the paradigm example of a government act that was not “proper,” because the monopolist was benefited to the detriment of everyone else.
In 1787, a consumer could at least choose not to buy the monopolist’s product. “The conclusion is clear: if a commercial monopoly—which citizens may avoid by not purchasing the product monopolized—is constitutionally void as ‘improper,’ then far more ‘improper’ is a mandate for the benefit of political favorites, which none but other political favorites may avoid. . . . [C]oerced commerce with congressionally favored oligopolists is constitutionally improper and void.”
Thus, if the Supreme Court follows the original meaning of the Necessary and Proper clause, and McCulloch v. Maryland’s accurate exposition of that meaning, the Court will not rule in favor of the individual mandate as a necessary and proper exercise of the power to regulate interstate commerce.
Thursday, November 17, 2011
Wednesday, November 16, 2011
Branzburg v. Hayes (1972): The Meaning Of "Freedom Of The Press" And Why The First Amendment Doesn't Afford Media Extra Constitutional Protection
Many people believe in the misconception that the newsman is afforded extra Constitutional protection by the First Amendment which states that "Congress shall make no law...abridging...the freedom of speech, or of the press." This is simply not the case. The Supreme Court rightly recognized that notion is based on fallacious reasoning, though later federal appellate courts have not been as wise in applying that precedent.
"Freedom of the press" is not a term synonymous with today's media or news reporting, it refers first and foremost to the printing press, (which produced, for example, such important political opinionated works as "Common Sense" critical to the American Revolution). The Amendment was saying that the spoken and written word is to be considered a Constitutionally protected right (within certain boundaries, of course, e.g., defamation and the like). Freedom of speech, followed immediately by freedom of the press, separated only by a comma, are therefore not completely independent clauses. They are bound together in the same clause of the First Amendment for this reason. It is unconvincing to believe that newspapers or TV news channels are entitled or were intended to be entitled to extra Constitutional protection above and beyond individuals or associations of individuals. Justice Joseph Story wrote in his Commentaries on the Constitution (1833), "It [freedom of the press] is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends... [unlike having] [t]he art of printing...looked upon, as...in England, as in other countries, as merely a matter of state, and subject to the coercion of the crown." Historically in England, Justice Story explained, the crown had exercised the power of limiting "the number of printers, and of presses, which each should employ, and prohibited new publications, unless previously approved by proper licensers." It was the power of the new federal government to control the printing press that the First Amendment was to disallow.
"Father of the Constitution" James Madison said in the First Congress in 1789 when the First Amendment was proposed that "the liberty of the press is expressly declared to be beyond the reach of this [federal] Government; the people may therefore publicly address their representatives, may privately advise them, or declare their sentiment by petition to the whole body; in all these ways they may communicate their will." Using the printing press to engage in political communications or pamphleteering was at the heart of the First Amendment. This applied equally to all, regardless of whether an individual happened to be employed by a newspaper. Further, in response to the Sedition Act of President John Adams which criminalized criticism of his administration, James Madison in his Report of 1800 explained that "[i]n the United States the case is altogether different. The People, not the Government, possess the absolute sovereignty. The Legislature, no less than the Executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other... They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws... [T]his exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws." The fact is that a reporter for the New York Times and a person using his desktop at home to write a political tract have equal First Amendment rights. Many today associate the freedom of the press with a special protection for the newsman or media alone, but nothing could be further from the truth.
In Lovell v. City of Griffin (1938) Supreme Court Chief Justice Charles Evan Hughes therefore astutely defined the press as "every sort of publication which affords a vehicle of information and opinion." In Branzburg v. Hayes (1972) a plurality of the Supreme Court ruled on a case that dealt with a reporter who after observing and interviewing a number of people synthesizing and using drugs in a two-county area in Kentucky wrote a story which appeared in a Louisville newspaper. On two occasions he was called to testify before state grand juries which were investigating drug crimes. He refused to testify and disclose his sources, claiming that even though the average citizen would have to answer before a grand jury, an investigative journalist was immune by a special "reporter's privilege" granted under freedom of the press. The Court stated that "[t]he sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other citizens do, and to answer questions relevant to an investigation into the commission of crime." The Court went on to say:
"It has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally... We are asked to create another [testimonial privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do... [T]he press has the right to abide by its agreement not to publish all the information it has, but the right to withhold news is not equivalent to a First Amendment exemption from the ordinary duty of all other citizens to furnish relevant information to a grand jury performing an important public function... The informative function asserted by representatives of the organized press in the present cases is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists. Almost any author may quite accurately assert that he is contributing to the flow of information to the public, that he relies on confidential sources of information, and that these sources will be silenced if he is forced to make disclosures before a grand jury" (emphasis added).
The Supreme Court's holding was exactly in line with with the original meaning of the First Amendment, as the newsman and the individual citizen have the same rights to utilize the printing press with the same level of interference of law where appropriate. The Court then found that requiring reporters to disclose confidential information to grand juries served a "compelling" and "paramount" state interest and did not violate the First Amendment.
Justice Lewis Powell authored a concurring opinion in Branzburg in which he argued that "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Justice Powell's concurrence was latched onto by later appellate courts wanting create a reporter's privilege out of the First Amendment despite a plurality of the Court having not adopted his approach. Other appellate courts still have blatantly misconstrued the plurality holding. In fact what happened with later appellate courts actually shows even the lower court ability to twist precedent to serve their own purposes. Many appellate decisions represent outcome-oriented clear departures from the plurality in Branzburg. In Zerilli v. Smith (D.C. Cir. 1981) a court said a "qualified privilege would be available in some circumstances even where a reporter is called before a grand jury to testify.” In U.S. v. Cuthbertson (3d Cir. 1980) another court ruled a qualified privilege extended to criminal cases using a judicial balancing test. A different court decided in Gonzaelz v. NBC (2d. Cir. 1999) that a qualified privilige does not apply to nonconfidential sources. In In Re Special Proceedings (1st Cir. 2004) a court said a reporter's privilege does not apply to good faith investigations where the reporter attempted to attain alternative sources. This is but a sampling of some of the confused rulings all over the judicial map that depart from a plurality opinion that states a simple principle that the newsman and the average citizen possess the same Constitutional rights. The Supreme Court has thus far refused to set the record straight.
In Mckevitt v. Palasch (7th Cir. 2003), Judge Richard Posner persuasively pointed this all out, how some of the other appellate rulings after that case “essentially ignore” Branzburg. Others, he claimed, misread the case. And still others, he complained regarding his fellow judges, “audaciously declare that Branzburg actually created a reporter’s privilege.” All of these decisions, Posner concluded, “can certainly be questioned.” Later appellate courts completely distort and misinterpret (or don't carefully read or care about) the actual Branzburg plurality opinion, which (in its general agreement with my points above) ruled correctly.
Let's remember this is not dicta in Branzburg, it's the very essence of the bottom line holding of the case: "We are asked to create another [testimonial privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do." The Court found that there was a paramount and compelling interest in the case, which is to say that the government's interest in forcing disclosure meets even the highest standards possible (that's how weak the media claims were in this case). The plurality in Branzburg made it repeatedly clear that they did not believe "freedom of the press" was to mean the newsman has extra constitutional rights beyond any other author or speaker. And this is a correct holding as freedom of the press originally and quite obviously meant the printing press, which is to say that it does not actually mean the typical news reporter is to have special Constitutional rights. This is to say that the issue of whether reporters should be afforded special rights is one to be left with the legislative branch of government, not to be judicially decided by judges twisting Supreme Court precedent along with the original meaning of the Constitution.
James Madison, in the debates and discussions over the adoption of the Bill of Rights, described "the freedom of the press and rights of conscience" as "those choicest privileges of the people" which "are unguarded in the British constitution." Both the mouth and the pen were to be free tools for the expression of the rights of conscience. A reporter on MSNBC, or a writer for the New York Times, has no special access to this important right that would be denied to any other citizen. As early Constitutional scholar St. George Tucker wrote in 1803, "Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press" (emphasis added). Tweet
House Passes Interstate Handgun Carry Reciprocity
Professor David Kopel reports that it passed "[b]y a vote of 272 to 154. (The vote on the motion to recommit was 161 to 263). On the final vote, 44 Democrats voted in favor, and 7 Republicans voted against. H.R. 822 now goes to the Senate. In the previous Congress, a broader bill on interstate carry was narrowly defeated by a filibuster led by Sen. Charles Schumer. Of course whether the bill ever comes up for a vote in the Senate is up to Majority Leader Harry Reid. In September, I testified before the House Judiciary Committee’s Subcommittee on Crime, Terrorism, and Homeland Security, in support of the bill. My testimony focused mainly on the Congress’s constitutional authority to pass the bill under the powers granted by section 5 of the 14th Amendment. Among the explicit purposes of the 14th Amendment was to give Congress the power to enact legislation protecting the right to interstate travel, which is one of the Privileges or Immunities of citizens of the United States. My written testimony is here. A video of the subcommittee hearing is here. And here’s short podcast on the subject, with Cato." Tweet
CAIR Slams Muslim Foes Of Somali Jihad Terror Group Al-Shabaab
IPT News reports:
Both Omar Jamal and Abdirizak Bihi are Muslims. But CAIR's Minnesota chapter attacked them over their involvement with a seminar on Somali culture and their communities in America held Thursday in St. Paul. It was sponsored by the Center for Somalia History Studies, an organization founded earlier this year by former Ramsey County Sheriff Bob Fletcher.TweetThe seminar, which cost $150 per person to attend, covered a wide array of topics including "Clans and Sub Clans"; "The Ethiopia Issue"; "Black Hawk Down"; "Youth Gangs"; "Transition to America" and "Somali Culture."
One subject in particular incurred CAIR's wrath. It was entitled, "Al Shabaab: An Islamic Extremist Terrorism Organization." Al-Shabaab is an al-Qaida affiliate.
CAIR and nearly 30 other groups, ranging from the Minnesota chapter of the Muslim American Society to local mosques and Somali community organizations, complained that the description of al-Shabaab "fails to distinguish between Islam and terrorism."
CAIR-MN President A. Lori Saroya warned that conference attendees "will receive inaccurate and biased information about Muslims and Somalis." She expressed concern that the seminar would result in "a lot of bias and misinformation. "
Fletcher said before the conference that he had invited CAIR to attend to give its perspective. Saroya denied the group had received an invitation, but added that Somali groups wouldn't attend because that would give "legitimacy" to Bihi and another Shabaab critic: Jamal, a former activist in the Twin Cities who currently serves as a member of Somalia's United Nations delegation.
"These individuals, who have no credibility in the Somali community, are going to be educating law enforcement," the CAIR-MN letter read.
Minneapolis Star-Tribune columnist Jon Tevlin, who attended part of the conference, wrote that it "seemed like a pretty straight-forward history lesson." An hour of the daylong presentation was dedicated to al-Shabaab, "but considering that 20 young Somali men have been lured from the Twin Cities to fight with the organization, it only seemed logical. Very little was about religion, and I saw no criticism of the Muslim religion, only of terrorist acts," he added.
CAIR's Minnesota chapter previously came under fire for refusing to criticize al-Shabaab.
CAIR's comments about Bihi and Jamal amount to "character assassination," said Tom Lyden, a reporter for Fox 9 News in Minneapolis. The two are targets because they "were the first to blow the whistle on the effort to recruit Minnesotan Somalis for terrorism in Somalia," he said.
Three of the men who disappeared from the Twin Cities in recent years "would later become suicide bombers in Kenya and Somalia for the terror group al-Shabaab," Lyden wrote on his blog. "That stance earned them a seat on CAIR's bad side."
The attacks against Bihi are particularly unfair, Lyden wrote. Bihi has fought a tenacious and often lonely fight against jihadist recruitment in the Twin Cities, and Lyden pointed to the activist's devotion to helping Somali neighbors in need. It is not uncommon to find Bihi devoting his time to translating for a Somali mother who needs social services or helping someone who wants to send money to relatives in Somalia.
Bihi has repeatedly blasted CAIR for attempting to muzzle local Somalis who take a public stand against al-Shabaab. In June 2009, he was among 50 people who protested outside a CAIR ice-cream social event for discouraging local Somalis from cooperating with the FBI. "We don't want anyone to come to our community and tell us to shut up," Bihi said.
His teenage nephew was among the Minnesota Somalis killed while fighting for al-Shabaab. In a subsequent interview with the Investigative Project on Terrorism, Bihi criticized CAIR and local mosque officials for putting roadblocks in the way of Somali cooperation with the FBI.
Lyden believes CAIR's real objection is to Bihi's "outspoken stance that some local mosques have fostered an environment that encouraged the radicalization of young Somali men" – a story he has reported on with regard to the Abubakr as-Saddique mosque in Minneapolis.
The House Homeland Security Committee staff reported that on July 5, a Saudi cleric who had denounced al-Shabaab at that mosque was assaulted by men shouting "Allahu Akhbar" ("God is Great"). The assault was widely reported on jihadist websites, with Islamists overseas learning about the incident before most residents of the Twin Cities area.
For close to three years, Lyden wrote that he has tried unsuccessfully to elicit a comment from CAIR about the missing Somali youth who have left Minnesota to fight for al-Shabaab. But CAIR hasn't said a word. "For an organization that is supposed to represent Muslim Americans, I think that silence is particularly strange," he added.
CAIR and its allies have shown much less reticence about slurs and ad hominem attacks on non-Islamist Muslims.
In April, Rep. Keith Ellison, D-Minn., a close political ally of CAIR and a frequent speaker at its fundraisers, told a largely Muslim audience in Rochester Hills, Mich. that the "only reason" Bihi had been invited to testify before Congress on jihadi recruitment was "because he fits the narrative of people who want to defame you."
Another CAIR target was Muslim scholar Khalid Duran, who has written that CAIR's hyperbolic attacks on his work elicited death threats from Jordanian Islamists....
After Finally Kicking Occupy Wall Street Bums Out Of Zuccotti Park, City Plans For Threat From Protesters To "Shut Down" Financial District
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The occupation at Zuccotti Park may be over, but wary city officials are bracing for trouble tomorrow when a mob of that could number in the “tens of thousands” is expected to answer Occupy Wall Street’s call to shut down the Financial District.
“Everything that we have seen and heard suggests that we may have tens of thousands of people tomorrow protesting.
The protesters are calling for a massive event aimed at disrupting major parts of the city,” Deputy Mayor Howard Wolfson told reporters this afternoon.
Wolfson and Deputy Mayor Cas Holloway said all city agencies are on notice and extra cops will be on hand for the massive demonstrations - which could disrupt the morning commute and be among the largest in city history.
Holloway conceded commutes may take longer than usual.
Organizers said they were energized by Mayor Bloomberg’s decision early to end the two-month-long camp-out at Zuccotti Park.
“We will shut down Wall Street,” a post on the movement’s Facebook page said. “We will ring the People’s Bell, and initiate a street carnival in which we rebuild and celebrate the neighborhoods that the Wall Street economy has destroyed.”
The march on Wall Street is slated to start at 7 a.m.
Other events scheduled for the day include “Occupy the Subways” in all five boroughs at 3 p.m., a takeover of Foley Square at 5 p.m. and another march across the Brooklyn Bridge.
“I think we’re certainly going into this with our eyes wide open, but (the march is) to provoke ideas and discussion, not to provoke any violent reactions,” Occupy Wall Street spokesman Ed Needham told Reuters. “I think it is very difficult to do a day of action and not expect some sort of reaction from the [authorities].”
The group promises a “a block party the 1 percent will never forget.”
New York Subway Sign Defaced In Anti-Semitic Incident: "Avenue Jew"
MYFOXNY.COM reports that "a vandal altered a sign at a subway station ihttp://www.blogger.com/img/blank.gifn a heavily Jewish neighborhood in Brooklyn to make it read 'Avenue Jew,' according to Assemblyman Dov Hikind. A subway rider saw the graffiti, photographed it, and contacted Hikind's office." To read more and see a photo visit http://www.myfoxny.com/dpp/news/subway-sign-defaced-in-bias-incident-20111116-akd#ixzz1dv85iKhU Tweet
"Morning Joe" Panel Has Plenty To Say In Mocking Republicans, Go Silent When Subject Turns To Solyndra
The panel spent over ten minutes mocking the Republican presidential field yet falls silent on Solyndra:
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Tuesday, November 15, 2011
Judge Rules Against Occupy Wall Street Squatters
The decision that came down today:
TweetProtestors will not be allowed to bring tents and overnight gear to Zuccotti Park, a Manhattan judge ruled today, dealing a huge blow to the Occupy Wall Street movement. With tensions simmering, demonstrators had spent the day surrounding the now-closed park near Wall Street as they waited for the judge's decision. Hours after the city forcibly evicted protestors, scrubbed down the park and closed it, Occupy Wall Street protests scattered across downtown Manhattan.
The city's plan to evict protesters after nearly two months early today resulted in the arrest of 200 protesters. The protest began Sept. 17 and many had been camped out at the park since then. Soon after the nighttime sweep, protesters went to a Manhattan judge, getting her to issue a temporary restraining order allowing them back inside. The city responded by closing the park.
Monday, November 14, 2011
The Death Of Enumerated Powers: Responding To DC Circuit Court Of Appeals Upholding Of Obamacare Mandate As Constitutional
The D.C. Circuit Court of Appeals recently upheld the Obamacare individual mandate forcing American citizens to purchase health insurance as Constitutional under the Article I, Section 8, Clause 3 enumerated power to "regulate Commerce...among the several States." The majority opinion was written by Judge Laurence Silberman, appointed by President Ronald Reagan. Silberman is the first Republican judicial appointee to actually author an opinion upholding Obamacare. This is the same judge that authored an influential opinion in District of Columbia v. Heller finding that the Second Amendment protected an individual right to bear arms, a decision upheld by the United States Supreme Court in a landmark gun rights ruling. This shows either one of two things: that even more conservative legal theorists can drastically misunderstand the Constitution, or that Supreme Court precedent is so unlimited and broad in the arena of Commerce Clause jurisprudence that he felt compelled to uphold this as well. In fact, both can be true in this case, but I shall focus on this judge's more basic flawed approach to the Constitution rather than bother dissecting wrongheaded Supreme Court precedent.
In order to understand where Judge Silberman went wrong one must read one key passage from his opinion. Judge Silberman wrote:
We acknowledge some discomfort with the Government’s failure to advance any clear doctrinal principles limiting congressional mandates that any American purchase any product or service in interstate commerce. But to tell the truth, those limits are not apparent to us, either because the power to require the entry into commerce is symmetrical with the power to prohibit or condition commercial behavior, or because we have not yet perceived a qualitative limitation. That difficulty is troubling, but not fatal, not least because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right.There is so much that is problematic with this passage that it alone is worthy of my full response. It is these few sentences which alone show how foolhardy the D.C. Circuit ruling is, and how far the judiciary so often strays from the most basic of Constitutional principles. The judge acknowledges only "some discomfort" at the idea that there is no principle at all "limiting congressional mandates that any American purchase any product or service in interstate commerce." This should not be a matter of slight "discomfort," it is the very crux of the case against Obamacare's mandate. That any judge, let alone a supposedly conservative one, could write that an unchecked federal power with no discernible limiting principle is only a matter of "some discomfort" is itself ample evidence of how far the judiciary has strayed from the Constitutional structure originally envisioned by the ratifiers of the Constitution. What Silberman allows for is the Constitutionally impossible: a federal plenary power that far exceeds the scheme of enumerated powers, in addition to a federal police power. This opinion is clearly making a mockery of the bedrock of all Constitutional principles found in Marbury v. Madison that “[t]he powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written.”
Silberman goes on to "tell the truth," that there are no limits on federal power to be found emanating from his ruling, yet he refuses to then do the obvious and ergo declare Obamacare's individual mandate unconstitutional. The reason for this is "because we are interpreting the scope of a long-established constitutional power, not recognizing a new constitutional right." That the judge realizes there are problems with inventing new Constitutional rights out of whole cloth is admirable, but it should be obvious that it is equally troubling to allow Congress new unprecedented powers that exceed the scope of those provided within the Constitution. This makes a mockery of the Ninth and Tenth Amendments and turns the original meaning of those provisions on their head. The Bill of Rights was ratified a few years after the Constitution was ratified. The Constitutional structure of enumerated powers ratified in 1789 was to be the promised primary protection of the people's rights. James Madison famously wrote in Federalist No. 45 in 1788 that "[t]he powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite." It was this structure of limited federal power, coupled with the remaining reservoir of authority to be found with the people and their State legislatures, that the proponents of the Constitution promised would protect from an overarching federal government of unlimited powers that would trample the rights of the people. Governor Edmund Randolph explicitly told the Virginia Ratifying Convention in 1788 that "the best security that can be in" a "body arising from a compact, and with certain delineated powers" is "the express enumeration of its powers."
The enumerated powers have not been taken seriously for far too long. In fact, the very notion of limited federal power has been gutted by the modern Supreme Court since the New Deal era. The enumerated powers are a list of items found in Article I, section 8 of the U.S. Constitution that set forth the authoritative capacity of the United States Congress. The 10th Amendment states that all prerogatives not vested in the federal government nor prohibited of the states are reserved to the states and to the people, which means that the only prerogatives of the Congress are limited to those explicitly stated in the Constitution of the United States. This most elementary notion is unfortunately forgotten, ignored, or misconstrued by too many academics and judges. It is critical to therefore reiterate the original scheme of enumerated powers envisioned during the debates over the Constitution's ratification. A sampling of but a few (and there are many more) from those that supported the Constitution's ratification is therefore appropriate:
James Wilson, Pennsylvania Ratifying Convention, 1787: "Whoever views the matter in a true light, will see that the [federal] powers are as minutely enumerated and defined as was possible, and will also discover that the general [welfare] clause, against which so much exception is taken, is nothing more than what was necessary to render effectual the particular powers that are granted."
Gov. Edmund Randolph, Virginia Ratifying Convention, 1788: "[T]he gentleman supposes that complete and unlimited legislation is vested in the Congress... This...is founded on false reasoning... [I]n the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it?--for if its powers were to be general, an enumeration would be needless."
James Madison, Virginia Ratifying Convention, 1788: "[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction."
James Iredell, North Carolina Ratifying Convention, 1788: “[The Constitution] is a declaration of particular powers by the people to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before, that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell?--or could he, without absurdity, say, 'Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.'"
James Iredell, North Carolina Ratifying Convention, 1788: "Nor shall the said Congress...exercise any act of authority over any individual in...the...states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed."
Alexander Hamilton, Federalist No. 83, 1788: "The plan of the [Constitutional] convention declares that the power of Congress...shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended."
Judge Silberman would have you believe that the federal government is of unlimited authority under the Commerce Clause, and not the Constitution of strict enumerated powers promised when the Constitution was actually ratified. He openly is willing to uphold an admittedly boundless federal power without a limiting principle. The D.C. Circuit acknowledges what Judges Dubina and Hull wrote in their jointly-authored Eleventh Circuit opinion overturning the individual mandate: "Ultimately, the government’s struggle to articulate cognizable, judicially administrable limiting principles only reiterates the conclusion we reach today: there are none." Yet the latter court rightly respected the principle of an enumeration of powers, while the former dangerously defied it.
This is precisely why with the Supreme Court announcing they will be deciding this case next year, the very essence of our Constitutional republic hangs in the balance. The Supreme Court need only remember two words in order to legitimately overturn the Obamacare individual mandate: Enumerated Powers. Tweet
US Muslim In Texas Convicted In Plot To Help Al-Qaeda Branch
The AFP reports:
A Texas man who had been in contact with the late US-born Al-Qaeda cleric Anwar al-Awlaqi was found guilty Monday of attempting to provide material support to a foreign terrorist organization, officials said.TweetA judge delivered the verdict against Barry Walter Bujol, a 30-year-old Hempstead, Texas, resident, according to a Justice Department statement.
Prosecutors said the charges stemmed from an investigation begun in 2009 by the FBI, which employed an undercover agents who purported to be a recruiter for Al-Qaeda in the Arabian Peninsula (AQAP) and offered to help Bujol pursue his goal of conducting "violent jihad."
Evidence at trial showed that Bujol had been in contact with Awlaqi, an AQAP leader who was killed September 30 in an air raid in Yemen hailed by President Barack Obama as a "major blow" to terrorists.
Awlaqi "replied to Bujol's e-mails by sending Bujol a document entitled '42 Ways of Supporting Jihad," according to prosecutors.
Bujol was arrested on May 30, 2010, after boarding a ship docked at the Port of Houston, which Bujol believed was bound for Algeria where he would stay at an Al Qaeda safe house before continuing on to Yemen.
In 2009, Bujol made three attempts to travel to the Middle East, but was thwarted by law enforcement, which arranged for undercover agents to meet him. Bujol told one agent he wanted to fight with the "mujahideen."
On a video shown at trial, he told his wife that he had left her suddenly to pursue "jihad" and would not see her until the afterlife....
Supreme Court Agrees To Decide Constitutionality Of Obamacare
Scotusblog.com reports: The allotment of 5 1/2 hours for oral argument appeared to be a modern record; the most recent lengthy hearing came in a major constitutional dispute over campaign finance law in 2003, but that was only for 4 hours. The length of time specified for the health care review was an indication both of the complexity of the issues involved, and the importance they hold for the constitutional division of power between national and state governments. (In its earlier years, the Court customarily held days of oral argument on important cases; the modern Court, however, ordinarily limits oral argument to one hour per case.) Beyond the Court, there is a hot political debate going on across the country now on federal vs. state power, and the Court’s coming decision is likely to become an issue in that debate — especially since the final ruling is expected to emerge from the Court in June, in the midst of this year’s presidential and congressional election campaign.Setting the stage for a historic constitutional confrontation over federal power, the Supreme Court on Monday granted three separate cases on the constitutionality of the new federal health care law, and set aside 5 1/2 hours for oral argument, to be held in March...
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The Court will hold two hours of argument on the constitutionality of the requirement that virtually every American obtain health insurance by 2014, 90 minutes on whether some or all of the overall law must fail if the mandate is struck down, one hour on whether the Anti-Injunction Act bars some or all of the challenges to the insurance mandate, and one hour on the constitutionality of the expansion of the Medicaid program for the poor and disabled. The Court chose those issues from appeals by the federal government, by 26 states, and by a business trade group....
Sunday, November 13, 2011
Head Of Arab-American Banquet Hall In Dearborn, Michigan Arrested For Funding Hezbollah
The Detroit Free Press reports:
Authorities have arrested a noted member of Dearborn's Arab-American community on charges of smuggling for and funding Hizballah, his attorney said.Ali Hammoud, president of the Bint Jebail Cultural Center in Dearborn, was arrested at his Dearborn home late Friday by police on a felony arrest warrant requested by the FBI, said attorney Majed Moughni.
Hammoud heads the most well known banquet hall in Dearborn, a place where the Arab-American community often holds events. Prominent leaders, from CIA director Leon Panetta to former Governors John Engler and Jennifer Granholm, have spoken at the center.
"This is devastating to the community, to have one of its leaders sitting in jail," said attorney Moughni. "He's well-liked and well-known."...
Moughni said Hammoud is innocent and thinks that authorities may have mistaken him for someone else.
"This is uncalled for," he said.
Located in the eastern section of Dearborn, the Bint Jebail Cultural Center is named after a town in southern Lebanon where many Shia Muslims live. Hizballah is a group led by Lebanese Shia that the U.S. government classified as a terrorist group while some Arabs see them as a group that defended Lebanon against Israel....
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