Saturday, December 17, 2011
Thursday, December 15, 2011
Christopher Hitchens Dies
His last article on his struggle against cancer was published in the January issue. An excerpt:
Hitchens was an honest and intelligent guy until the end, and always entertaining whether you agreed with him or not. He was often the guy you would want to see go up against a debate opponent, regardless of whether you agreed with him. In his religious debates my sympathies were not with him, but yet in others regarding foreign policy they sometimes were with him. Despite my disagreements with him about a lot of things, I think his participation in our civil discourse was in many ways constructive. I am most sorry to hear he will no longer be a part of it. TweetI do remember lying there and looking down at my naked torso, which was covered almost from throat to navel by a vivid red radiation rash. This was the product of a month-long bombardment with protons which had burned away all of the cancer in my clavicular and paratracheal nodes, as well as the original tumor in the esophagus. This put me in a rare class of patients who could claim to have received the highly advanced expertise uniquely available at the stellar Zip Code of MD Anderson Cancer Center in Houston. To say that the rash hurt would be pointless. The struggle is to convey the way that it hurt on the inside. I lay for days on end, trying in vain to postpone the moment when I would have to swallow. Every time I did swallow, a hellish tide of pain would flow up my throat, culminating in what felt like a mule kick in the small of my back. I wondered if things looked as red and inflamed within as they did without. And then I had an unprompted rogue thought: If I had been told about all this in advance, would I have opted for the treatment? There were several moments as I bucked and writhed and gasped and cursed when I seriously doubted it.
It’s probably a merciful thing that pain is impossible to describe from memory. It’s also impossible to warn against. If my proton doctors had tried to tell me up front, they might perhaps have spoken of “grave discomfort” or perhaps of a burning sensation. I only know that nothing at all could have readied or steadied me for this thing that seemed to scorn painkillers and to attack me in my core. I now seem to have run out of radiation options in those spots (35 straight days being considered as much as anyone can take), and while this isn’t in any way good news, it spares me from having to wonder if I would willingly endure the same course of treatment again.
But mercifully, too, I now can’t summon the memory of how I felt during those lacerating days and nights. And I’ve since had some intervals of relative robustness. So as a rational actor, taking the radiation together with the reaction and the recovery, I have to agree that if I had declined the first stage, thus avoiding the second and the third, I would already be dead. And this has no appeal…
I am typing this having just had an injection to try to reduce the pain in my arms, hands, and fingers. The chief side effect of this pain is numbness in the extremities, filling me with the not irrational fear that I shall lose the ability to write. Without that ability, I feel sure in advance, my “will to live” would be hugely attenuated. I often grandly say that writing is not just my living and my livelihood but my very life, and it’s true. Almost like the threatened loss of my voice, which is currently being alleviated by some temporary injections into my vocal folds, I feel my personality and identity dissolving as I contemplate dead hands and the loss of the transmission belts that connect me to writing and thinking.
Vodka Ad Insults Jews And Is Pulled: "Christmas Quality, Hannukkah Pricing"
"Christmas quality, Hanukkah pricing"? What I don't like is not being honest about it not playing on a stereotype and having a spokesman lie through his teeth saying according to CNN it was "a ballad to Hanukkah's simplicity." An actual "ballad," mind you, not even just a reference. Please, we know the ad is about Jews being cheap (in America's most heavily populated Jewish city, no less), and that's exactly why you removed it after the complaints came rolling in.
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Elena Kagan's Supreme Court Recusal Games: Why Pulling Out Of Arizona Immigration Case, And Not Obamacare, Is All About The Potential Outcome
A federal statute requires that any “justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” Federal law also requires that a judge recuse herself if the judge previously served in governmental employment “and in that capacity participated as a ... counsel, adviser, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy.”
It is clear that there is plenty of evidence that Elena Kagan deciding the Obamacare case is a violation of the federal statutes above. As but a few examples, it is known that Kagan while Solicitor General for the Obama administration wrote an e-mail to Harvard law professor Laurence Tribe in which she said, “I hear they have the votes [to pass Obamacare], Larry!! Simply amazing.” The email's subject line was "fingers and toes crossed today!" But even more than that, CNS news reported that "[i]nternal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as the DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to 'deem' the bill passed even if members never directly voted on it." It is beyond doubt that Kagan should in line with federal law not play any part in the Obamacare ruling. In fact, she may even have perjured herself as she had asserted during her confirmation hearing that she was not involved in the administration’s legal strategies for the law.
On the other hand, she did announce this week upon the Supreme Court's deciding to rule on Arizona's (as I have pointed out, constitutional) anti-illegal immigration law that she would play no role in that decision. Immediately, liberal Kagan supporters jumped at the opportunity to prove that Kagan was principled and clearly is willing to recuse herself even in highly controversial and hot button cases where the court is potentially going to be closely divided. The liberals at Think Progress argued along these lines specifically saying that people should now ignore demands that Kagan recuse herself in the ObamaCare case:
Sounds compelling, does it not? The fact of the matter is that only a slightly deeper understanding of how the Supreme Court works and the members who make it up reveals that Kagan has gamed the recusal process, probably expecting the exact sorts of defenses coming from Think Progress for her refusal to recuse in the Obamacare decision.One thing today’s order should put to rest, however, is the ridiculous suggestion that Justice Kagan needs to recuse from the Affordable Care Act litigation. Since joining the Court, Justice Kagan has scrupulously avoided sitting on any case she worked on while Solicitor General — even though this took her off of dozens of cases. Today’s order shows that Kagan is no less attentive to her ethical obligations even when they arise in high profile cases that carry a great deal of political baggage for the president that appointed her.
These two cases are no doubt the most publicly noticed cases to reach the Supreme Court's docket since Kagan has assumed her position on the high bench. The question that needs to first be asked is what happens if the Supreme Court is in an even tie, based on a Kagan recusal, where 4 Justices vote one way and 4 another. Well, "[a]lthough rare, 4-4 ties are hardly unheard-of—justices do recuse themselves from time to time. A split decision effectively upholds the ruling of the lower court." The traditional practice of the Supreme Court of the United States is that "no affirmative action can be had in a cause where the judges are equally divided in opinion as to the judgment to be rendered or order to be made" (See Durant v. Essex Co., 74 U.S. (7 Wall.) 107, 111 (1868)). There is therefore generally a rule of affirmance by an equally divided Court.
Once this is understood one need only look to the makeup of the court itself. Let us assume that in both cases there is a reliable 4 conservative Justices (Roberts, Alito, Scalia, Thomas) that will vote to strike down Obamacare and uphold Arizona's law. All that needs to be looked at is the lower court rulings. In the Arizona case, if unprincipled Supreme Court swing vote King Anthony Kennedy will move toward the liberal wing of the Court even without Kagan, that would make a 4-4 tie (Ginsburg, Breyer, Sotomayor, Kennedy vs. Roberts, Alito, Scalia, Thomas). This would result in Arizona's law being overturned as a result of the 9th Circuit Court of Appeals ruling declaring the law unconstitutional not being struck down. But now look to Obamacare, which reached the Supreme Court after a petition by the Department of Justice to review the 11th Circuit Court of Appeals decision declaring the law unconstitutional. If Kennedy swings toward finding Obamacare violative of the Constitution, even with Kagan recused, this would mean that the Court would have a 4-4 tie (again, Ginsburg, Breyer, Sotomayor, Kennedy vs. Roberts, Alito, Scalia, Thomas). Given that the lower appeals court had in this Obamacare case declared Obamacare unconstitutional, that would now be the legal ruling. And of course in either case, if Kennedy sides with the conservatives then Kagan's presence is moot since that would be a majority of 5 Justices rendering an opinion.
And so it should now be obvious to you that Kagan's recusal decisions have nothing to do with her integrity in following federal law as it relates to her duties as a jurist. It is a pure calculation as it relates to the potential outcomes without her presence. In fact, it is pretty clear that she is violating federal law in partaking in the Obamacare decision. And it is this apparent calculation, far more than the drivel from Think Progress, that is evidenced by a Supreme Court Justice unwilling to recuse herself despite mounting evidence that she should do so in the Obamacare case.
One has to be extremely gullible to believe that she had no involvement in the legal discussions and strategies regarding Obamacare, the current administration's signature piece of legislation, but yet had more involvement worthy of recusal in a lawsuit to oveturn the State of Arizona's law regarding illegal immigrants. That she has recused herself from one and not the other, proves nothing. Tweet
N.Y. Teens Suspended For "Tebowing" In School Hallway
Just when everyone thought the trend of "Tebowing" had reached its zenith in the greater cultural Zeitgeist, it finds a way to completely jump the shark: On Wednesday, a group of high school athletes at a Long Island school were suspended for staging a spontaneous bout of Tebowing in their high school's hallway.Tweet
Wednesday, December 14, 2011
Tuesday, December 13, 2011
Monday, December 12, 2011
Immigration, Concurrent Powers, And Original Meaning: Why The Supreme Court Must Rule That Arizona's Law Is Constitutional
The United States Department of Justice filed a lawsuit against the state of Arizona in the U.S. District Court for the District of Arizona on July 6, 2010, asking that the law be declared invalid since it interferes with the immigration regulations "exclusively vested in the federal government." The Supreme Court has just announced that they will decide the Constitutionality of Arizona's anti-illegal immigration law S.B. 1070. The measure was lawfully passed by the Arizona legislature and signed into law by Governor Jan Brewer. Instead of recognizing the federal inability to enforce its own laws alone, the Justice Department's lawyers referenced the notion of federal preemption and stated that, "The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country." The fact of the matter is that Arizona's law should be seen as in line with Supreme Court doctrine and with the early original understanding of Congress's power over naturalization.
BASIC ORIGINAL MEANING
Article I, Section 8, Clause 4 of the U.S. Constitution gives Congress the power "[t]o establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States" (emphasis added). This power was described by James Madison in Federalist No. 42 as one of those powers "which provide for the harmony and proper intercourse among the States" as "[t]he dissimilarity in the rules of naturalization has long been remarked as a fault in our system." The specific problem with having each State determine who was a citizen and who was an alien rather than a uniform federal system:
"[If] certain descriptions of aliens, who had rendered themselves obnoxious, were laid under interdicts inconsistent not only with the rights of citizenship but with the privilege of residence. What would have been the consequence, if such persons, by residence or otherwise, had acquired the character of citizens under the laws of another State, and then asserted their rights as such, both to residence and citizenship, within the State proscribing them? Whatever the legal consequences might have been, other consequences would probably have resulted, of too serious a nature not to be provided against. The new Constitution has accordingly, with great propriety, made provision against them, and all others proceeding from the defect of the Confederation on this head, by authorizing the general government to establish a uniform rule of naturalization throughout the United States."Quite simply, the most obvious and original meaning of this clause was that the question of who is an American citizen had to be determined at the federal level so that there could be uniformity among the States in this important matter. However, this did not itself preclude laws at the State level regarding those that Congress have determined are not citizens. Early Constitutional scholar William Rawle, in his 1829 "A View of the Constitution," reiterated the point made by Madison writing that the purpose of this power was that "an alien...might...become a citizen of a state [and not another]...and thus in fact, the laws of one state become paramount to that of another [in regards to citizenship]. The evil could not be better remedied than by vesting the exclusive power in congress." However, Rawle importantly writes:
"Until these [citizenship] rights are [federally] attained, the alien resident is under some disadvantages which are not exactly the same throughout the Union. The United States do not intermeddle with the local regulations of the states in those respects. Thus an alien may be admitted to hold lands in some states, and be incapable of doing so in others. On the other hand, there are certain incidents to the character of a citizen of the United States, with which the separate states cannot interfere. The nature, extent, and duration of the allegiance due to the United States, the right to the general protection and to commercial benefits at home and abroad, derived either from treaties or from the acts of congress, are beyond the control of the states, nor can they increase or diminish the disadvantages to which aliens may, by such measures on the part of the general government, be subjected."What is evident from Rawle is that laws regarding those that federal law has determined are aliens can be applied at both the federal and State level. During the debate about the Rules of Naturalization in 1790 in the House of Representatives, Congressman Sherman explained in line with the above that he "presumed it was intended by the Convention, who framed the Constitution, that Congress should have the power of naturalization, in order to prevent particular States receiving citizens, and forcing them upon others who would not have received them in any other manner." This was the original purpose of the federal power. Representative White further stated that he “doubted whether the constitution authorized Congress to say on what terms aliens or citizens should hold lands in the respective States; the power vested by the Constitution in Congress, respecting the subject now before the House, extend to nothing more than making a uniform rule of naturalization. After a person has once become a citizen, the power of congress ceases to operate upon him; the rights and privileges of citizens in the several States belong to those States; but a citizen of one State is entitled to all the privileges and immunities of the citizens in the several States. All, therefore, that the House have to do on this subject, is to confine themselves to an uniform rule of naturalization and not to a general definition of what constitutes the rights of citizenship in the several States." In the same debate still another representative, Representative Stone, concluded that the “laws and constitutions of the States, and the constitution of the United States; would trace out the steps by which they should acquire certain degrees of citizenship.” He also said “Congress may point out a uniform rule of naturalization; but cannot say what shall be the effect of that naturalization, as it respects the particular States. Congress cannot say that foreigners, naturalized, under a general law, shall be entitled to privileges which the States withhold from native citizens.”
The narrow meaning of this enumerated power is evident from pronouncements by those who supported the Constitution's ratification, by those that later said the same when debating rules over naturalization in Congress, and by the works of early Constitutional scholars. The Constitution therefore clearly does not prohibit State laws in the area of immigration, especially with a law like Arizona's which does nothing more than enforce existing federal law.
FEDERAL PREEMPTION
With this backdrop we can now discuss whether "federal preemption" prevents a State from enacting a law like that in Arizona. The Supremacy Clause (Article VI, Clause 2) makes Constitutional federal laws the "supreme law of the land," and therefore constitutional federal laws trump or preempt state laws. There are two main types of preemption seen in Supreme Court precedent: (1) Express Preemption and (2) Implied Preemption. Express preemption would be where Congress expressly declares their intent to not allow the States to be involved. This is simply not the case in the area of immigration. Congress has not expressly precluded the States from involvement in the area.
We then have to move to implied preemption which itself carries two possibilities: (1) Conflict Preemption and (2) Field Preemption. Because Arizona's law was specifically drafted in such a manner that it enforces, and never contradicts, federal law, it cannot be considered conflict preemption where State law conflicts with federal law and must therefore be voided. That is why the federal government would next rely on the logic of field preemption to say that they have so regulated in the field of immigration such as to exclude the States from involvement. In Rice v. Sante Fe Elevator (1947) the Supreme Court declared that the opponent of State law carries the burden of establishing that State police powers cannot “constitutionally coexist with federal regulation.” Law Professor Kris Kobach, the primary author of Arizona's law, points out that it is clear in this case that the federal government cannot bear that burden:
While it is true that Washington holds primary authority in immigration, the Supreme Court since 1976 has recognized that states may enact laws to discourage illegal immigration without being pre-empted by federal law. As long as Congress hasn’t expressly forbidden the state law in question, the statute doesn’t conflict with federal law and Congress has not displaced all state laws from the field, it is permitted. That’s why Arizona’s 2007 law making it illegal to knowingly employ unauthorized aliens was sustained by the United States Court of Appeals for the Ninth Circuit.The fact is that S.B. 1070 falls squarely within the well established doctrine of concurrent powers, which are those powers of a federal system of government that are shared by both the state and the federal governments. As Alexander Hamilton clearly explained in Federalist No. 32, "the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States." That this applies to immigration should actually be obvious. The very same clause that provides Congress with power over naturalization provides Congress with power over bankruptcy. The ability to make bankruptcy laws has long been understood to be a primary example of concurrent powers between the federal and state governments, and there is little reason the power over naturalization that precedes this by only a comma should be any different.
Under judicial precedent, and based on the most basic principles as seen in the original meaning of the Constitution, the Arizona immigration law must be declared Constitutional by the Supreme Court. Like too many questions this may well come down to the whim of Supreme Court swing vote King Anthony Kennedy. There is one clear course of action, and Kennedy should certainly follow it. Tweet
Obama Actually Asks Teheran To Return Surveillance Drone CIA Landed In Iran
And the Iranian response is a big "go screw yourself."
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Sunday, December 11, 2011
Gunman In Hollywood Shooting At Drivers And Pedestrians While Shouting "Allahu Akbar"
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